Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.
Filing
152
OPINION AND ORDER by Judge Gregory K Frizzell ; denying 50 Motion for Summary Judgment; granting 68 Motion for Partial Summary Judgment (hbo, Dpty Clk) (Additional attachment(s) added on 7/13/2011: # 1 "main document") (hbo, Dpty Clk). Modified on 7/13/2011 to attach correct order(hbo, Dpty Clk).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
ABERCROMBIE & FITCH STORES, INC.,
an Ohio corporation, d/b/a Abercrombie
Kids,
Defendant.
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Case No. 09-CV-602-GKF-FHM
OPINION AND ORDER
This matter is before the court on the Motion for Summary Judgment of defendant
Abercrombie & Fitch Stores, Inc. (“Abercrombie”) [Dkt. #50] and the Amended Motion for Partial
Summary Judgment of plaintiff, the Equal Employment Opportunity Commission (“EEOC”) [Dkt.
#68].
The EEOC brought this action pursuant to Title VII of the Civil Rights Act of 1964 (42
U.S.C. § 2000e-5(f)(1) & (3)) and Title I of the Civil Rights Act of 1991 (42 U.S.C. § 1981a),
alleging religious discrimination against Samantha Elauf (“Elauf”), a Muslim teenager who applied
for a job at an Abercrombie store in Woodland Hills Mall in 2008. [Dkt. #2]. Abercrombie did not
hire Elauf because, as a Muslim, she wears a head scarf and the Abercrombie “Look Policy”
prohibits sales models from wearing head wear.
The EEOC seeks summary judgment on the issue of liability or, in the alternative, on one or
more elements of its prima facie case and/or on Abercrombie’s affirmative defense of undue
hardship. Abercrombie contends the EEOC’s motion should be denied and its cross motion should
be granted because the EEOC has not established a prima facie case, and because an
accommodation for Elauf would cause Abercrombie undue hardship.
I. Material Facts
Abercrombie operates retail stores across the country under a variety of brand names,
including Abercrombie & Fitch, abercrombie (“Abercrombie Kids”) and Hollister. [Dkt. #86,
Defendant’s Statement of Facts ¶1; Dkt. #77, Plaintiff’s Response to Defendant’s Statement of
Facts ¶1]. The target customer of Abercrombie & Fitch is age 18 to 22 and the target customer of
Abercrombie Kids is age 8 to 16. [Dkt. #50, Supplemented Written Testimony of Dr. Erich A.
Joachimsthaler, ¶26]. Abercrombie’s Vice President of Human Resources, Deon Riley, testified
that its largest advertising is its “in store experience with our models (sales associates), the look and
feel of the store, what the customer has come to expect.” [Dkt. #86, Ex. 3, Deon Riley Dep., 19:15].
In 2008, Abercrombie operated an Abercrombie Kids store in the Woodland Hills Mall in
Tulsa, Oklahoma. [Dkt. #68, Plaintiff’s Statement of Facts ¶ 7]. At all times from 2005 to the
present, Abercrombie has required employees in its Abercrombie Kids, Abercrombie & Fitch, and
Hollister stores to comply with a “Look Policy.” [#68, Ex. 3, Chad Moorefield Dep., 69:7-17,
102:23-103:16, 149:20-167:5 and Moorefield Dep. Exs. 7, 8, 9; Ex. 7, Riley Dep. 18:5-17].
Kathleen Lundquist, an expert for Abercrombie, has stated that the Look Policy is inherent to a
model’s role and is a major component of the in-store experience. [#50, Ex.G, Lundquist
Declaration, ¶8]. The Look Policy requires employees to dress in clothing and merchandise
consistent with that sold in the store; requires that male employees be clean shaven; prohibits
female employees from wearing necklaces and bracelets; requires employees to wear specific types
2
of shoes; and prohibits “caps” but does not mention any other head wear. [Dkt. #68, Ex. 4, Heather
Cooke Dep., Ex.8 thereto, pp. 29-30]. The policy applies to all store employees, but applicants are
not required to be in compliance at the time of the interview. [Dkt. #50, Ex. C, Riley Dep., 63:1824].
Abercrombie trains store managers “never to assume anything about anyone” in a job
interview, and not to ask applicants about their religion. [Dkt. #68, Ex. 7, Riley Dep., 62:18-63:3].
If there are issues or questions regarding the Look Policy or an employee requests a religious
accommodation, the store manager is instructed to contact Abercrombie’s Human Resources
Department and/or their direct supervisor. [Dkt. #50, Ex. C., Riley Dep., 32:10-21, 113:2-114:7].
The Human Resources managers have the individual discretion to grant accommodations “as long
as it’s not going to distract from the brand.” [Id., 114:2-7].
Samantha Elauf has been a Muslim since birth. [Dkt. #68, Ex. 2, Elauf Dep., 28:18-20]. Her
parents are both practicing Muslims. [Id., 29:6-8]. Her mother wears a head scarf on a daily basis
[Id., 30:23-31:10], and Elauf began to wear a head scarf1 at age 13. [Id., 31:14-16]. Since then, she
has worn a head scarf at all times when in public or in the presence of male strangers. [Id. 32:733:5]. She considers it a representation and reminder of her faith, a religious symbol, a symbol of
Islam and of modesty. [Id., 32:2-6;121:22-24; 123:10-21]. She testified that the head scarf becomes
an obligation after one reaches puberty, and “that’s the only time you’ll be able to decide whether
or not you want to wear a head scarf.” [Id., 34:3-10].
1
A head scarf is a type of hijab, a head covering common in Islamic cultures. [Dkt. #68,
Ex. 1, John Esposito Dep., 44:1-20]. There are different styles of hijabs. [Id., 47:8-15]. Elauf
wears one that does not appear to cover her face, neck or shoulders. [#68, Ex. 4, Cooke Dep.,
Exs. 6 and 7 thereto; Ex. 1, Esposito Dep., 47:19-48:4].
3
Elauf acknowledged the Quran does not explicitly require women to wear head scarves. [Id.,
124:16-25; Ex. 50, Ex. A, Elauf Dep., 125:1-4]. She admitted that someone could be an observant
Muslim without wearing a head scarf, and testified that several members of her family, and her
friend Faris Sepahvand, do not wear head scarves, but she does not think they are looked down
upon or are not “good Muslims.” [Id., 30:8-11; 35:10-21; 45:1-20; 121:2-17].
Elauf fasts during Ramadan and has done so since she was in fifth grade. [Id., 40:21-41:13].
She does not pray five times a day2 or daily, but prays and reads verses of the Quran twice a month
and also studies the Quran during Ramadan. [Id., 38:12-39:16]. She does not drink, party or
gamble, as they are considered “not Islamic.” [Id., 38:5-10]. She tries to cover the majority of her
arms and legs when she dresses. [Id., 48:6-20].
Elauf “occasionally” attends services at her mosque,3 the Islamic Center in Tulsa, but said
she is not sure where it is located as far as the street name. [Dkt. #86, Ex. 1, Elauf Dep., 13:2-6].
Elauf’s Application and Interview
On June 25, 2008 Elauf, then 17, applied for a job as a model at the Abercrombie Kids store
in Woodland Hills Mall. [Dkt. #68, Ex. 2, Samantha Elauf Dep., 52:4-53:7]. Assistant store
manager Heather Cooke interviewed her on June 26, 2008. [Id., Ex. 4, Heather Cooke Dep., Ex 5
thereto].
As a high school student, Elauf had worked at Woodland Hills Mall in the Fruit Fondue
2
Elauf testified that part of the Muslim religion is to pray five times a day. [Dkt. #68,
Elauf Dep., 42:6-16].
3
She estimates she attends two of the weekly Friday prayer services plus two holiday
services each year provided she is not working, i.e., four services a year. She testified that it is
“not [as] necessary for a woman to go to the Friday prayers as it is for a man.” [Dkt. #86, Ex. 1,
Samantha Elauf Dep., 13:25-14:10, 15:5-24].
4
kiosk and the Limited Too store. [Dkt. #68, Ex. 2, Samantha Elauf Dep., 44:3-17; 54:6-17]. Before
she applied for a job at Abercrombie, she had shopped there and bought jeans, sweatshirts, tank
tops and t-shirts from its stores. [Id., 49:8-18]. Elauf’s friend, Farisa Sepahvand, who worked as a
model at Abercrombie Kids, encouraged her to apply. [Id., 45:23-46:1; ]. Like Elauf, Sepahvand is
a Muslim. [Id., 12:12-13].
Elauf was unaware, before she applied, that Abercrombie had a Look Policy. [Id., 59:6-11].
Elauf testified that Sepahvand told her she had discussed with Cooke whether it was okay if Elauf
wore a black head scarf, and Cooke said she would probably have to wear a different color. [Id.,
57: 7-58:2]. Sepahvand told Elauf she would not be able to wear a head scarf that was black
because Abercrombie required models to wear clothing similar to what it sold, and Abercrombie
did not sell black clothing. [Id., 56:17-57:12; Ex. 17, Farisa Sepahvand Dep., 32:24-33:24]. Elauf
testified she knew Abercrombie does not sell head scarves, although it sold scarves she could wear
as head scarves. [#86, Defendant’s Statement of Fact ¶5 and Ex. 1, Elauf Dep., 117:4-15].
Elauf testified that during the interview, Cooke never mentioned the Look Policy, but told
her she would “wear clothing that either looked like Abercrombie and then the fact that I wasn’t
supposed to wear heavy makeup or like polish, nail polish.” [Dkt. #86, Ex. 1, Elauf Dep., 65:2-8].
It is undisputed that Cooke did not tell her Abercrombie would not permit models to wear head
scarves or to wear black clothing. [Id., 65:15-21; #68, Ex. 4, Cooke Dep.98:14-99:1].4
4
The witnesses’ testimony on this subject conflicts to some extent. Elauf was “pretty
sure” Cooke told her that “what I was wearing that day would be fine but I would just have to
wear a different color scarf because I think I was wearing a black scarf and I was wearing black
sandals, and you weren’t allowed to wear black shoes...” [Id., Ex. 2, Elauf Dep., 61:23-62:13].
Cooke testified she did not discuss with Elauf the fact that she wore a head scarf during the
interview or tell her should could not wear black if she was hired as a model. [#68, Ex. 4, Cooke
Dep., 98:14-99:1].
5
Cooke was responsible for recruiting, interviewing, and hiring new store employees. She
supervised models in the store, had the authority to discipline them, and decided which model
applicants would receive job offers. She did not usually seek approval from the District Manager
before extending a job offer, and the District Manager was usually not involved in deciding whether
to hire a specific applicant. [Dkt. #68, Ex. 4, Cooke Dep., 23:3-16, 27:8-30:18, Ex. 5, Johnson Dep.
34:9-25, 38:17-25; Ex. 3 Moorefield Dep. 141:22-142:6; Ex. 6 Def. Responses to Pl. First
Interrogatories, No. 9.].
During the interview with Cooke, Elauf wore an Abercrombie & Fitch like T-shirt and
jeans, and a head scarf. [Dkt. #68, Ex. 4, Cooke Dep., 95:12-96:3; 109:1-8]. Cooke had previously
seen Elauf wearing a head scarf in the Woodland Hills Mall. [Id., 96:5-10]. Cooke testified that the
head scarf signified to her that Elauf was Muslim and, “I figured that was the religious reason why
she wore her head scarf, she was Muslim,” [Id., 96:11-15] and “I just assumed that she was Muslim
because of the head scarf was for religious reasons.” [Id., 153:19-22]. Cooke believed Elauf was a
good candidate for the job, but she was unsure, at the time, whether it would be a problem for Elauf
to wear the headscarf to work as a model for Abercrombie. [Id., 99:6-16; 109:9-11]. She testified:
Q:
Did you, at that time, feel that she should not be able to work as a model at
Abercrombie Kids because she was wearing the head scarf?
A:
No. I did not feel. I felt like she could. I didn’t feel like there was anything
wrong with it. But I knew that in–not in this, but in the Employee Handbook, it does
say that we’re not supposed to wear the color black. But they had just said we
could wear black converse tennis shoes. So I was a little unclear.
And I think it says in the handbook you can’t wear hats. So I was unclear.
So that’s why–I was the assistant manager and that’s why I asked the
store manager and the district manager.
6
[Id., 99:17-100:9].
The store manager was unable to answer Cooke’s question about head scarves, so she
consulted with her District Manager, Randall Johnson. [Id., 106:24-107:8]. She testified Johnson
told her not to hire Elauf because she wore the head scarf, that employees were not allowed to wear
hats at work, and that if Elauf wore the head scarf, then other associates would think they could
wear hats at work. [Id., 107:8-12]. Cooke further testified:
Q:
And did you–did you discuss it with him in sort of—did you have any
discussion with him over this?
A:
Yes, I did. I thought she was a very good candidate to work here.
And I asked him, you know, she wears the head scarf for religious reasons, I believe.
And he said, “You still can’t hire her because someone can come in and paint
themselves green and say they were doing it for religious reasons, and we can’t hire
them.
And I told him that I believed that she was Muslim, and that was a recognized
religion. And that she was wearing it for religious reasons. And I believe that we
should hire her.
Q:
And what did he say?
A:
He told me not to hire her.
[Id., 107:14-108:5].
In his deposition, Johnson denied Cooke told him Elauf wore the head scarf for religious
reasons and also denied making the remark about people painting themselves green. [Dkt. #68, Ex.
5, Randall Johnson Dep., 86:4-21].
Johnson testified that Abercrombie’s Human Resources Department is responsible for
compliance with the Look Policy, and if he had a question whether a head scarf was the same as a
cap, he would have called his HR manager. [Id., 48:24-49:10]. However, he believed the head
scarf would not have complied with the Look Policy. [Id., 48:20-23]. He testified that during the
7
time he was district manager, the Abercrombie Kids store had never had any exception to the Look
policy. [Id., 69:15-21]. He was not aware Abercrombie allowed any exceptions nationwide from
2001 to 2009. [Id., 70:25-71:12]. He was unaware that in other stores, Abercrombie had allowed
store models to wear a yarmulke. [Id., 71:9-12]. In his opinion, there was no difference between a
yarmulke, a head scarf, “[o]r a ball cap or a helmet for all that matters. It’s still a cap,” and if an
applicant asked to wear a ball cap for religious reasons, he “[s]till would have denied them, yes,
sir.” [Id., 71:13-72:3].
Johnson testified that the process for considering a request for an exception would be that he
would contact his HR director, “and they would make that exception or determination if we could
hire them or go forward with that applicant.” [Id., 72:4-14]. He stated that he had “never had to
make an exception, no, or make–or call HR to make an exception.” [Id., 72:15-20].
Johnson knew that some Muslim women wear head scarves because he had seen them on
television. [Id., 47:23-25]. Viewing photographs of Elauf, he stated that she would have been a
good candidate to hire as a model except for the head scarf. [Id., 70:15-18].
Johnson could not recall if he asked Cooke whether Elauf could remove her head scarf. [Id.,
50:13-18]. He did not recall any discussion about how Elauf could comply with the Look Policy if
hired. [Id., 51:20-23].
During her interview of Elauf, Cooke had filled out a Model Group Interview Guide rating
sheet, rating Elauf on three “competencies” required for the job of model: “outgoing and promotes
diversity,” “sophistication and aspiration,” and “appearance and sense of style.” [Dkt. #68, Ex. 4,
Cooke Dep., 104:10-105:7]. A candidate who scores below a total combined score of 6 is classified
as “below expectations” and not recommended for hiring. [#68, Ex. 4, Cooke Ep., Ex. 5 thereto at
8
A&F001997].
Originally, Cooke gave Elauf a “2" (on a scale of 1-3, with 3 being the highest) in all three
competencies. [Id., 104:15-105:23]. She also originally marked the “hiring recommendation” as
“recommend.” [Id., 106:17-23]. She testified that when Johnson told her not to hire Elauf, “he told
me to give her a 1 on appearance, so then her score would be a 5 instead of a 6, and I would not hire
her.” [Id., 122:13-25]. After Cooke consulted Johnson, she threw away Elauf’s original rating sheet
and filled out a new one, changing Elauf’s score on “Appearance and Sense of Style” from 2 to 1.
[Id., 123:1-19]. After she changed the rating, Cooke did not extend a job offer to Elauf. [#68,
Plaintiff’s Statement of Facts ¶ 22].
Elauf testified that, at the end of her interview, Cooke told her she would call her the next
day or the day after and let her know when orientation was. [Dkt. #68, Ex. 2, Elauf Dep., 66:1-5].
Elauf never got a call, and her friend Farisa told her three days after the interview that the district
manager had told Cooke not to hire her because of the head scarf. [Id., Ex. 2, Elauf Dep., 66:1367:13].
Look Policy Exceptions
Requests for exceptions to the Look Policy must be approved by Abercrombie’s Human
Resources Department in corporate headquarters. [#68, Ex. 7, Riley Dep., 109:5-110:19]. Riley
testified that exceptions to the Look Policy are recorded in the Human Resources contact records
database, but Abercrombie has not tracked the exceptions or measured whether they have had any
negative impact on how customers view the Abercrombie style. [Id., 129:4-24].
In 2006, Abercrombie’s Human Resources Department approved a head scarf exception to
the Look Policy. [Dkt. #68, Ex. 7, unnumbered exhibit thereto, Contact Records, A&F004313].
9
Additionally, since 2006, the department has approved the following exemptions to the Look
Policy: allowing males to work with facial hair for religious and medical reasons; allowing females
to wear bracelets for religious reasons; allowing female employees to wear long skirts inconsistent
with skirts sold in the stores for religious reasons; and allowing males to wear yarmulkes for
religious reasons. [#68, Plaintiff’s Statement of Facts ¶ 35, Ex. 3, Moorefield Dep. 262:22-264:4;
Ex. 13, HR Contact Records; Ex. 14, Defendant’s Supp. Resp. To Pl.’s First Request for
Admissions, Nos. 15 and 16; Ex. 7, Riley Dep, 92:17-93:11; 101:20-23; 139:12-140:13; 158:6138:3, Riley Dep. Exs. 25-26].
Subsequent to its rejection of Elauf’s application, Abercrombie began to allow more head
scarf exceptions. [#68, Ex. 7, Riley Dep., 92: 17:24; 236:1-6]. In an interview reported by the New
York Times (online) on September 23, 2010, Abercrombie’s General Counsel Ronald A. Robins,
Jr., said that Abercrombie “makes every reasonable attempt to accommodate the religious practices
of associates and applicants, including, where appropriate, allowing associates to wear a hijab.”
[Id., Ex. 15, NY Times.com article; Ex. 12, Defendant’s Response to Requests for Admission ##12]. Abercrombie’s Vice President of Human Resources, Deon Riley, testified Abercrombie now
allows exceptions to the policy against headwear and, with respect to the head scarf, has allowed
eight or nine exceptions. [#68, Ex. 7, Riley Dep., 236:1-6].
Abercrombie executives uniformly testified that allowing exceptions to the Look Policy has
a negative impact on the brand and on sales. Riley testified she believes the Look Policy leads to a
better in-store experience and more repeat customers and the in-store experience “is a core driver of
our business.” [#50, Ex. C., Riley Dep., 31:13-32:]. However, she also admitted that the report of
Dr. Erich A. Joachimsthaler, Abercrombie’s expert in this case, is the only study or analysis
10
Abercrombie has conducted in the last two years on the effect of a Look Policy exemption, and
Riley’s department has not been asked to assess whether or how deviations impact customer views
or to review sales for that purpose. [Dkt. #68, Ex. 7, Riley Dep., 13:9-16:4; Ex. 8, Def. Supp.
Answers to Pl. First Interrogatories, No. 5].
A store’s compliance with the Look Policy is tracked by the Director of Stores and the
Regional Managers through ratings on store audits and in Secret Shopper reports. [#68, Plaintiff’s
Statement of Facts ¶ 28, Ex. 3, Chad Moorefield Dep., 170:2-173:15]. Chad Moorefield, Director
of Stores for Abercrombie, testified that he never did any empirical analysis to determine if a drop
in store audit scores is correlated to a drop in sales for any store [Id., 195:1-199:20], although he
has “seen stores or managers that do a poor job of enforcing our Look Policy and ha[s] seen low
sales scores because of it.” [Id., 218:1-9].
Human Resources Director Amy Yoakum testified she believes that granting an exception
for Elauf would have created an undue burden because it could negatively affect the “store
experience” for Abercrombie’s customers and the uniform enforcement of the Look Policy. [Dkt.
#68, Ex. 11, Yoakum Dep. 62:16–63:23; 68:16-69:2]. In her deposition on March 18, 2011, she
was not aware that Abercrombie had, since the Elauf incident, granted eight or nine exceptions for
head scarves, but stated that knowledge would not change her opinion. [Id., 65:2-10]. Yoakum
was not aware of any study to measure the impact of Look Policy deviations. [Id., 68:8-15].
Abercrombie’s expert, Lundquist, testified that she created the job description for the model
position that was in effect in 2008. [#50, Ex. G., Kathleen K. Lundquist Decl., ¶7]. She stated that
an essential function of the job as an Abercrombie model is to “act as a model for the brand,” and in
so doing “represent the [Abercrombie] brands in their appearance and sense of style.” [Id., ¶8].
11
She opined that “it is both critical to the job and an essential function of the job of Model at
Abercrombie to maintain an appearance and sense of style consistent with the brand” and
“critical...to comply with standards of conduct including the Look Policy.” [Id., ¶23]. Lundquist has
not performed any study or read any report regarding the impact of any store not being in
compliance with the Look Policy and/or its impact on the brand. [Dkt. #68, Ex. 10, Kathleen
Lundquist Dep., 135:10-18].
Abercrombie relies on the Joachimsthaler report in support of its position that an exception
would create an undue burden. [Id., Ex 8, Def. Supp. Answers to Pl. First Interrogatories, No. 5].
Abercrombie has not assigned a specific financial value to the alleged undue burden. [Id.].
Joachimsthaler testified regarding marketing strategy and brands. [Dkt. #50, Ex. F.,
Joachimsthaler Written Testimony; Dkt. #68, Ex. 9, Erich Joachimsthaler Dep.]. The declaration
and deposition of Joachimsthaler establish:
•
Abercrombie does not use television advertising and uses only minimal print
advertising, and that its “brand identity” is communicated through the “in-store
brand experience,” including interactions with employees. [Dkt. #50, Ex. F,
Joachimsthaler Dec., ¶11(ii)].
•
Abercrombie’s Look Policy plays a critical role in “communicating the overall brand
experience and desired brand image to consumers” because “it ensures consistent
and positive portrayals of the Abercrombie brand in the important in-store
environment.” [Id., ¶11(iii)].
•
“An employee’s look or dress that is contrary to the guidelines of the...Look Policy
is identity distorting and would appear visibly ‘off-brand’ to the Abercrombie target,
and negatively impact Abercrombie’s ability to communicate a consistent ‘on brand’
experience to its target customers,” and “[t]here is potential to cause consumer
confusion and decrease brand preference and valule perceptions for the Abercrombie
brand,” including “a decreased ability to effectively market to its target and establsih
strong emotional bonds with them; a decreased ability to retain exiting customer;
and increased costs of marketing and merchandising its products successfully.” [Id.,
¶11(iv)].
12
•
Joachimsthaler was aware that Abercrombie’s Human Resources Department has
approved exceptions to the Look Policy for head scarves. He knows of no studies
done by Abercrombie to determine if allowing employees to wear headscarves has
resulted in lost sales. He has not done such a study himself. [#168, Ex. 9,
Joachimshtaler Dep., 187:8-22].
•
When asked to “square” his opinion that allowing models to wear head scarves could
cause a negative impact on the brand with the fact that Abercrombie now allows
exceptions to the policy to permit wearing of the head scarf, Joachimsthaler opined
that the exceptions “still negatively impact the brand.” [Id., 147:22-24].
II. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which the party will bear the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a motion for summary judgment is properly made
and supported, the opposing party has the burden to show that a genuine dispute exists. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1984).
The non-moving party must set forth facts sufficient to establish the existence of a genuine
issue for trial. Rocky Mountain Rogues, Inc. v. Town of Alpine, 375 Fed. Appx. 887, 891 (10th Cir.
2010). Only disputes over facts that might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The mere existence of “a scintilla of evidence” in support of the non-moving
party’s position is insufficient. Id. To survive a motion for summary judgment, the non-moving
party must “make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at
322. The court must “view the evidence and draw any inferences in a light most favorable to the
party opposing summary judgment, but that party must identify sufficient evidence which would
13
require submission of the case to a jury.” Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir.
1997) (quoting Williams v. Rice, 983 F.2d 177, 179 (10th Cir. 1993)).
III. Analysis
Title VII makes it “an unlawful employment practice for an employer ... to discharge any
individual, or otherwise discriminate against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of such individual’s ... religion.” 42
U.S.C. § 20003-2(a)(1). “Religion” is defined to include only those “aspects of religious
observance and practice” that an employer is able to “reasonably accommodate ... without undue
hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Title VII imposes an
obligation on the employer “to reasonably accommodate the religious practices of an employee or
prospective employee, unless the employer demonstrates that accommodation would result in
undue hardship on the conduct of its business.” 29 C.F.R. § 1605.2(b)(1), (2).
On summary judgment, the principles outlined above are applied using the burden-shifting
approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff
initially bears the burden of production with respect to a prima facie case by showing that (1) she
had a bona fide religious belief that conflicts with an employment requirement; (2) she informed the
employer of this belief; and (3) she was not hired for failing to comply with the employment
requirement. Thomas v. National Ass'n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000).
The burden then shifts to the defendant, who must: “(1) conclusively rebut one or more elements of
the plaintiff's prima facie case, (2) show that it offered a reasonable accommodation, or (3) show
that it was unable to accommodate the employee's religious needs reasonably without undue
14
hardship.” Id. at 1156 (emphasis added).5
A. Prima Facie Case
The EEOC introduced evidence that Elauf wears a head scarf based on her belief that the
Quran requires her to do so, and that this belief conflicts with Abercrombie’s prohibition against
headwear;6 that Abercrombie had notice she wore a head scarf because of her religious belief; and
that it refused to hire her because the head scarf conflicted with its Look Policy. Thus, plaintiff has
established a prima facie case.
B. Rebuttal of Prima Facie Case
Abercrombie challenges two elements of the prima facie case, asserting Elauf’s wearing of
the head scarf is not based on a bona fide religious belief and the notice requirement was not
5
The court in Thomas explained that the burden shifting approach is different in ADA and
religious discrimination cases than in other types of discrimination cases:
In [an ADA or religious failure to accommodate] case, the Congress has already
determined that a failure to offer a reasonable accommodation to an otherwise
qualified disabled employee is unlawful discrimination. Thus, we use the
burden-shifting mechanism, not to probe the subjective intent of the employer,
but rather simply to provide a useful structure by which the district court, when
considering a motion for summary judgment, can determine whether the various
parties have advanced sufficient evidence to meet their respective traditional
burdens to prove or disprove the reasonableness of the accommodations offered
or not offered.
226 F.3d at 1155.
6
The Look Policy prohibits the wearing of “caps” on the sales floor.
15
satisfied.
1. Bona Fide Religious Belief
A “bona fide religious belief” is one that (1) is religious within the plaintiff’s own scheme
of things, and (2) is sincerely held. United States v. Seeger, 380 U.S. 163, 185 (1965). As long as a
party’s beliefs are religiously based, it is not for the courts to inquire whether those beliefs “derived
from revelation, study, upbringing, gradual evolution, or some source that appears entirely
incomprehensible.” Hobbie v. Unemployment Comm’n of Fla., 480 U.S. 136, 144 n. 9 (1987).
Thus, the individual’s assertion “that [her] belief is an essential part of a religious faith must be
given great weight.” Seeger, 380 U.S. at 184. Courts may not engage in an extensive inquiry into
the religious beliefs of the plaintiff in order to determine whether religion mandates the employee’s
adherence. See Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993), citing Fowler v. State of
R.I., 345 U.S. 67 (1953). The Supreme Court has stated, “[I]t is no business of courts to say . . .
what is a religious practice or activity.” Fowler v. Rhode Island, 345 U.S. 67, 70 (1953).
a. Whether Elauf Wears a Scarf Based on a Religious Belief
Citing testimony of an expert witness for the EEOC, John Esposito, Abercrombie suggests
Elauf wears a head scarf for cultural reasons rather than because of a religious belief.7 Elauf,
though, testified that she considers the head scarf to be a representation and reminder of her faith, a
religious symbol, a symbol of Islam and of modesty. Indeed, the record is devoid of evidence that
her decision to don a head scarf at age 13 and continue to wear it to this time is based on anything
other than her religious belief.
7
Esposito an expert on Islam and the Muslim faith, testified generally that head scarfs can
be worn for many different reasons, including cultural, religious or nationalistic reasons. [Dkt.
#86, Ex. 8,John Esposito Dep., 41:9-21, 53:4-8]
16
Abercrombie also asserts that since the Quran does not explicitly state that women must
wear head scarves, Elauf’s belief is not a religious belief. However, the broad definition of
“religion” does not require that a belief have a textual basis. In Redmond v. GAF Corporation, 574
F.2d 897, 900 (7th Cir. 1978), the court held that the protection of Title VII is not limited to
situations involving “a practice specifically mandated or prohibited by a tenet of the plaintiff’s
religion.” The court explained:
First, we note that the very words of the statute (“all aspects of religious observance
and practice....”) leave little room for such a limited interpretation. Secondly, we
note that to restrict the act to those practices which are mandated or prohibited by
a tenet of the religion, would involve the court in determining not only what are
the tenets of a particular religion, which by itself perhaps would not be beyond
the province of the court, but would frequently require the courts to decide
whether a particular practice is or is not required by the tenets of the religion.
We find such a judicial determination to be irreconcilable with the warning
issued by the Supreme Court in Fowler v. Rhode Island, 345 U.S. 67, 70, 73
S.Ct. 526, 527, 97 L.Ed. 828 (1953),”(I)t is no business of courts to say...what
is a religious practice or activity....”
Id.
Here, Elauf acknowledged that the Quran does not directly command women to wear head
scarves, that some of her friends and family members do not do so, and that she does not consider
them to be bad Muslims. However, based upon the Quran’s teaching that women must display
modesty, Elauf believes she should wear a head scarf, and she has done so since puberty at age 13.
Heeding the cautionary language of Fowler, the court finds that Elauf wears a head scarf based on
her religious belief.
b. Whether Elauf’s Belief is Sincerely Held
Abercrombie also challenges the sincerity of Elauf’s religious belief because she did not
know the street address of her mosque, does not regularly attend Friday services, and does not pray
five times a day or every day.
17
As the Second Circuit Court of Appeals has observed, “[I]t is entirely appropriate, indeed
necessary, for a court to engage in analysis of the sincerity–as opposed, of course, to the verity–of
someone’s religious beliefs in ... the Title VII context.” Philbrook v. Ansonia Board of Education,
757 F.2d 476, 481 (2nd Cir. 1985). “[T]he sincerity of [a claimant’s] religious beliefs is relevant to
whether or not the observance or practice for which an accommodation was requested will be
considered ‘religious’ in nature.” EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569,1575 (7th Cir.
1996) (emphasis added).
The court in Philbrook stated, “[A] sincerity analysis is necessary in order to differentiat[e]
between those beliefs that are held as a matter of conscience and those that are animated by motives
of deception and fraud.” Id. at 482. The court further instructed:
In International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d
430, 441 (2d Cir. 1981) (citations omitted), we outlined several factors that
indicated insincerity, noting that “an adherent’s belief would not be ‘sincere’
if he acts in a manner inconsistent with that belief ... or if there is evidence
that the adherent materially gains by fraudulently hiding secular interests
behind a veil of religious doctrine.” The Barber court also stated that “the
religion’s size and history” is relevant to the sincerity determination. Id.
The burden on plaintiff, however, is not a heavy one. We must avoid any
test that might turn on “the factfinder’s own idea of what a religion should
resemble” L. Tribe, supra, at 861.
Id.
Citing EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de
Puerto Rico, 279 F.3d 49 (1st Cir. 2002),8 Abercrombie argues the issue of Elauf’s sincerity is one
8
In Union Independiente, the EEOC brought an action on behalf of a member of the
Seventh-Day Adventist Curch who claimed “the tenets of his religion” prohibited him from
joining a labor organization. 279 F.3d at 51. The appellate court found the district court erred
because the union had presented evidence of “conduct on [claimant’s] part that is contrary to the
tents of his professed religious belief.” Id. at 56. In this case, the religious belief is much more
narrowly framed because the sole belief asserted is Elauf’s belief that she must wear a head
18
of credibility and therefore must be submitted to a jury. The court agrees that the sincerity of a
Title VII claimant’s religious belief goes to credibility. However, as stated in Ilona, supra, this
court’s focus must be on the sincerity of Elauf’s belief that she must wear a head scarf–not whether
she observed all tenets of the Muslim faith–because it was her belief about head scarves that
required accommodation. And the purpose of the inquiry, according to Philbrook, supra, is
whether this belief is held as a matter of conscience or instead, animated by motives of deception
and fraud.
The record is devoid of any evidence Elauf’s belief is animated by motives of deception and
fraud. To the contrary, the type of inquiry suggested in Philbrook shows that Elauf has, since age
13, worn the head scarf consistently and continuously when in public or in the presence of men
who are strangers–this despite the fact that she resides in Tulsa, Oklahoma, and is a fashion
conscious young woman. There is no evidence Elauf has sought or received financial gain by
wearing the head scarf. Finally, the Muslim practice of wearing a head scarf is neither new nor
uncommon.
There being no genuine dispute that Elauf wears a head scarf because of a bona fide
religious belief, the court finds Abercrombie has not rebutted this element of plaintiff’s prima facie
case.
2. Notice
Citing Thomas, Abercrombie argues that since Elauf did not tell the interviewer she had a
religious belief that conflicted with the Look Policy and that she needed an accommodation, the
scarf.
19
notice element of the prima facie case has not been satisfied.9 The EEOC urges a less restrictive
approach, asserting that although Abercrombie is required to have had notice that Elauf needed an
accommodation, the notice need not have been strictly in the form of Elauf verbally requesting such
an accommodation.
Courts in other circuits have held that the notice requirement is met when an employer has
enough information to make it aware there exists a conflict between the individual’s religious
practice or belief and a requirement for applying for or performing the job. See Dixon v. Hallmark
Cos., 62 F.3d 849, 856 (11th Cir. 2010); Brown v. Polk County, Iowa, 61 F.3d 650, 654 (8th Cir.
1995) (“It would be hyper-technical ... to require notice of the Plaintiff’s religious beliefs to come
only from the Plaintiff); Heller, 8 F.3d at 1439 (9th Cir. 1993); Helllinger v. Eckerd Corp., 67
F.Supp.2d 1359, 1361 (S.D. Fla. 1999).
While the Tenth Circuit has not addressed the question of whether notice must be explicitly
requested by the employee, the court in Thomas discussed at some length the reason notice was
essential to the interactive process of accommodation:
This statutory and regulatory framework, like the statutory and regulatory of the
Americans with Disabilities Act (ADA), involves an interactive process that
requires participation by both the employer and the employee. See Ansonia Bd. of
Educ. v. Philbrook, 479 U.S. 60, 69 ...(stating that, consistent with the goals
expressed in the legislative history of the religious accommodation provision,
“Courts have noted that bilateral cooperation is appropriate in the search for
an acceptable reconciliation of the needs of the employee’s religion and the
exigencies of the employer’s business”) (internal quotations and citations omitted);
Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987) (“Although the
burden is on the employer to accommodate the employee’s religious needs,
the employee must make some effort to cooperative with an employer’s attempt
at accommodation.”); cf. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72
9
In Thomas, it was undisputed that plaintiff, a postal employee, had explicitly requested
five religious accommodations. Id. at 1156. Thus, the adequacy of notice was not at issue.
20
(10th Cir. 1999) (en banc) (discussing the interactive process between an employer
and an employee under the ADA).
Id. at 1155.
In Smith v. Midland Brake, Inc., the Tenth Circuit stated:
In general, the interactive process must ordinarily begin with the employee
providing notice to the employer of the employee’s disability and resulting
limitations, and expressing a desire for reassignment if no reasonable
accommodation is possible in the employee’s existing job.
180 F.3d at 1171-72. In a footnote, the court, citing Beck v. University of Wisconsin, 75 F.3d 1130,
1134 (7th Cir. 1996), stated:
An employee has the initial duty to inform the employer of a disability before ADA
liability may be triggered for failure to provide accommodations–a duty dictated by
common sense lest a disabled employee keep his disability a secret and sue later for
failure to accommodate.
Id., n. 9 (emphasis added).
These cases teach that the purpose of the notice requirement is to facilitate the interactive
process and prevent ambush of an unwitting employer. Thus, faced with the issue of whether the
employee must explicitly request an accommodation10 or whether it is enough that the employer has
notice an accommodation is needed–the Tenth Circuit would likely opt for the latter choice.
In this case, it is undisputed that Elauf wore her head scarf at the interview with assistant
store manager Heather Cooke, and Cooke knew she wore the head scarf based on her religious
belief. Because Cooke was uncertain whether Elauf would need an accommodation, she consulted
the District Manager.11 Thus, Abercrombie has failed to rebut the second element of the prima facie
11
Abercrombie argues an issue of fact exists as to whether Cooke told the District
Manager, Randall Johnson, that Elauf wore a head scarf for religious reasons. This is not,
21
case–that the employer had notice that Elauf wore a head scarf based on her religious belief.12
B. Undue Hardship
Abercrombie asserts that even if it has not rebutted the prima facie case, allowing Elauf to
wear a head scarf would result in “undue hardship.”
An employer must prevail as a matter of law if the employer cannot reasonably
accommodate the employee’s religious beliefs without “undue hardship on the conduct of the
employer’s business.” Lee v. ABF Freight Sys., 22 F.3d 1019, 1022 (10th Cir. 1994). An
accommodation which results in “more than a de minimus cost” is an undue hardship to the
employer and the employer need not provide the accommodation. Trans World Airlines, Inc. v.
Hardison, 432 U.S. 53, 84 (1977).
Several Abercrombie executives have testified they believe granting Elauf an exception to
the Look Policy would negatively impact the brand, sales and compliance. However, none have
conducted any studies or cite specific examples to support this opinion. Instead, Abercrombie
relies on Joachimsthaler’s expert opinion.
Joachimsthaler, in turn, testified extensively about the importance of the in-store experience
to Abercrombie’s marketing strategy, and opined that the granting of even one exception to the
Look Policy would negatively impact the brand. He has made no effort, however, to collect or
analyze data to corroborate his opinion. If Abercrombie had never granted exceptions, or perhaps
however, a material fact issue, because the knowledge of Cooke–who had responsibility for
hiring decisions at the Abercrombie Kids store–is attributable to Abercrombie.
12
Under the uncontested facts in this case, there could be no bilateral, interactive process
of accommodation because, although Abercrombie was on notice that Elauf wore a head scarf
for religious reasons, it denied Elauf’s application for employment without informing her she
was not being hired or telling her why.
22
even if it had never granted exceptions for head scarfs, this omission might be understandable.
Eight or nine head scarf exceptions, though, have been made, and the expert has completely failed
to consider the impact, if any, of those exceptions.
The Tenth Circuit has stated:
An accommodation that requires an employer to bear more than a “de minimis”
burden imposes undue hardship. Any proffered hardship, however, must be
actual; [a]n employer cannot rely merely on speculation. A claim of undue
hardship cannot be supported by merely conceivable or hypothetical hardship...
The magnitude as well as the fact of hardship must be determined by examination
of the facts of each case.
Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492 (10th Cir. 1989). In light of the fact that
Abercrombie has granted numerous exceptions to the Look Policy since 2001, and in particular has
recently granted eight or nine head scarf exceptions, Joachimsthaler’s opinion is too speculative to
establish actual hardship, as required by Toledo.
Abercrombie has failed to meet its burden of establishing that granting Elauf an exception to
the Look Policy would have caused undue hardship.13
III. Conclusion
There being no genuine dispute as to any material fact, Abercrombie’s Motion for Summary
Judgment [Dkt. #50] is denied and the EEOC’s Amended Motion for Partial Summary Judgment
[Dkt. #68] as to liability is granted.
ENTERED this 13th day of July, 2011.
13
Abercrombie may be able to show undue hardship in other hijab cases, but it has not
done so here.
23
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