Abercrombie & Fitch Draws EEOC Complaint for Banning Islamic Head Scarf

Amanda Bronstad

The National Law Journal

February 26, 2010

The Council on American-Islamic Relations has filed a complaint with the U.S. Equal Employment Opportunity Commission alleging racial discrimination by Abercrombie & Fitch Stores Inc. after a manager fired a Muslim employee who refused to remove her hijab, or head scarf.

The complaint came five months after the EEOC filed suit against the clothing retailer over a similar complaint.

Abercrombie reached a $50 million agreement with the EEOC in 2004 resolving racial discrimination claims over its hiring and recruiting practices and its marketing "look," which predominantly featured white men and women.

"The company has a history of very explicit discrimination," said Zahra Billoo, programs and outreach director in CAIR's office in Santa Clara, Calif. "It's a disappointing pattern to see in a mainstream American company."

CAIR, one of the nation's largest Muslim civil liberties organizations, filed its complaint on Wednesday on behalf of Umme-Hani Kahn, 19, a stockroom worker who had been employed by Abercrombie subsidiary Hollister Co. in San Mateo, Calif. When she was hired in October, Kahn was told she could wear the hijab, Billoo said.

"It didn't come up in terms of, 'Can I wear it?'" she said, but rather "how it fits with the 'look' policy. Local management said, 'Yes, as long as it's white, gray or Navy blue. Everything they wear has to be in those colors."

She wore the hijab at work with no problems until this month, when a district manager, upon visiting the store, arranged a meeting in the stockroom with Kahn and someone from the company's human resources department, who participated via telephone. They told Kahn that scarves and hats did not fit the company's "look" and sent her home.

On Monday, Kahn was ordered to remove her hijab during work hours. When she refused, claiming that it would violate her religious beliefs, they fired her, Billoo said.

Title VII of the Civil Rights Act of 1964 says that employers may not discriminate against individuals because of their religion and must accommodate employee religious practices unless doing so would create an "undue hardship" for the employer, CAIR said in a press release.

In September, the EEOC filed a separate complaint against Abercrombie on behalf of a prospective employee, Samantha Elauf, who was denied a sales job at an Abercrombie Kids store in Tulsa, Okla., because her hijab violated the company's "look" policy, according to the complaint. CAIR had filed a complaint on that individual's behalf in 2008.

In that case, Abercrombie denied the allegation, saying that it had no legal duty to Elauf since she was never an employee and did not request accommodation of her religious beliefs. A call to Abercrombie's attorney in that case, Mark Knueve, a partner at Vorys, Sater, Seymour and Pease in Columbus, Ohio, was not returned.

In the 2004 case, the EEOC alleged that Abercrombie's hiring, recruiting and marketing practices systematically excluded minorities and women. As part of the consent decree, the retailer agreed not to discriminate against job applicants based on race, color or national origin, not to discriminate against women, and not to deny job opportunities to women and minorities. The store agreed to hire a monitor to ensure compliance with the decree and to hire 25 diversity recruiters and a vice president for diversity. Abercrombie also agreed that its marketing materials would reflect a more diverse "look."

According to a press release issued at the time of that agreement, EEOC General Counsel Eric Dreiband said: "The retail industry and other industries need to know that businesses cannot discriminate against individuals under the auspice of a marketing strategy or a particular 'look.' "

In 2008, the EEOC issued guidelines for accommodating religious beliefs in the workplace, specifically offering protection for workers who wear the hijab.

Billoo said that the day after CAIR filed its EEOC complaint on Kahn's behalf, its offices in Washington and Santa Clara received a threat of violence that appeared to refer to the case. She said that the FBI had been informed of the threats.