Abercrombie & Fitch. “A&F.” As a not-infrequent visitor to shopping malls, this blogger is familiar with the brand. It’s nearly impossible to avoid the A&F “brand.” Until recently, A&F stores were infused with a cloying cologne scent, puffed into the ambient air. One couldn’t walk past an A&F store without inhaling a snootful. A&F was also in the news when its CEO declared that the brand’s products were only suitable for “good-looking, cool kids” and suggesting that overweight persons did not belong in A&F clothes. Over the years, A&F has made headlines for its provocative marketing campaigns and products (e.g., a t shirt reading, “it’s all relative in West Virginia”). If the longevity of a company is judged in part by its remaining “relevant,” one has to acknowledge that A&F has managed to consistently stay in the public’s consciousness.
So, how is any of this relevant to life sciences companies, whose work forces tend to be highly educated and unconcerned with measuring up on the A&F “cool kids” meter. Well, A&F has been in the news recently, and in a big way that does have relevance for employers everywhere. I’m talking about the hijab case.
In 2009, the Equal Employment Opportunity Commission (“EEOC”) filed a civil suit against A&F on behalf of Samantha Elauf, who had applied for a sales position in an Abercrombie Kids store. Ms. Elauf wears a hijab in accordance with her religious beliefs. She was not hired, and allegedly was told that her hijab violated the store’s “Look Policy.”
The civil suit wove its way through the legal system, all the way to the United States Supreme Court. On June 1, 2015, the USSC issued its decision, holding that A&F’s refusal to hire Elauf violated Title VII of the Civil Rights Act of 1964. In a decision that has been widely criticized, the Court essentially held that there was sufficient evidence that A&F declined to hire Ms. Elauf because it wanted to avoid providing her with accommodation by making an exception to its “Look Policy,” which prohibits the wearing of any type of “headgear.” The USSC allowed Ms. Elauf to proceed with a claim of intentional discrimination, also known as “disparate treatment.” The policy in question – a prohibition against headgear – is “facially neutral” and does not single out any particular protected class. A facially neutral policy that has a disproportionate impact on a protected group is usually addressed as a “disparate impact” claim. However, in the A&F case, the Court permitted a claim of disparate treatment, or intentional discrimination, to proceed. There was no evidence before the court that A&F knew that Ms. Elauf’s hijab was worn as a religious practice. Yet, the Court assumed that it rejected her because it believed that hiring her would require it to make accommodation.
So why is this relevant in the biotech world? One reason (among several) can be illustrated by certain unique job requirements, such as clean rooms. What is a biotech company to do when an applicant presents with characteristics or dress that could be inconsistent with a company’s necessary clinical or safety standards? Should it ask the applicant whether s/he can comply with the company’s required standards? If an applicant is wearing long flowing saffron robes and a topknot, should the company assume he is a member of Hare Krishna? What if he is applying for a job that requires the wearing of clean room garments? Should it assume that he will be unwilling to modify his dress? Should it assume that his garments reflect a religious practice? Should it ask? Are there dangers in asking? (Yes)
The A&F court focused on presumed motives of A&F – namely, that it rejected Ms. Elauf because it did not want to find itself in the position of having to make an exception to its Look Policy as a religious accommodation. Yet, it never asked Ms. Elauf whether her headscarf was worn as an expression of religion, nor whether she would be willing to forego the headscarf while working. And Ms. Elauf never requested any accommodation. Yet, the A&F decision demonstrates that the court was willing to impute to A&F a desire to avoid making accommodation for Ms. Elauf’s hijab.
The lesson from this case is that in interviewing candidates, employers must be careful not to make hiring decisions based on assumptions that some kind of accommodation, religious or otherwise, would be required if a particular candidate is hired. Companies should make sure that persons interviewing candidates understand the risk they create for the company by rejecting otherwise qualified candidates based upon attire which might represent religious expression or which might spur a request for accommodation. Difficult as it may be, interviewers should not assume that an applicant’s appearance evidences a religious expression or that the applicant would request or require accommodation of dress or safety rules. Asking the applicant carries with it the danger that the applicant confirms that his or her dress or other appearance characteristic is religious expression. Once the interviewer knows this, the company “knows.” One protocol that may be useful is the one recommended when confronted with a job applicant with an obvious disability. The interviewer should ask only whether the applicant can meet all of the job’s essential requirements “with or without reasonable accommodation.” If the individual answers “yes”, proceed on the assumption that he or she can meet all the requirements. The discussion about accommodation occurs later, after a bona fide offer of employment. As with disability matters, if the accommodation requested presents an undue hardship to the company, or cannot be made without jeopardizing safety, the company may have a basis upon which to decline to provide it. Every case is unique, though, and we recommend consultation with counsel before deciding that a requested accommodation cannot be made. Let your company make headlines for its scientific discoveries and contributions, rather than for alleged religious discrimination.