Samantha Elauf Case Study

¶ … Abercrombie & Fitch and an applicant who wore a hijab to a job interview. The case was recently settled by the U.S. Supreme Court. In this case, the plaintiff Samantha Elauf wore a hijab to the job interview, but did not inform the company that she was Muslim. The company, Abercrombie & Fitch, has a "look policy" that prescribes specific appearance standards for its floor staff.

The circuit court found that A&F did not need to accommodate the plaintiff because the company was not expressly informed that the plaintiff had need for accommodation on religious grounds. She had not clarified that she was Muslim and would need to wear the headscarf for religious reasons, which would have given her Title VII protections. The Supreme Court reversed that decision, making the point that the applicant's need for accommodation was a motivating factor in the employer's decision not to offer a position to Ms. Elauf.

The Title VII protected class is religion in this situation.

The term religion in the context of Title VII is defined as including "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." To fail or refuse to hire an individual cannot be done on the basis of religion, in particular where reasonable accommodation can be made with respect to religion. Ms.

Elauf's hijab would fall under the definition of religious practice, granting her Title VII protections. The allegations were that A&F could have accommodated this religious practice within its code on employee appearances -- the hijab certainly does not preclude one from being fashionable. The Supreme Court therefore found that the Civil Rights Act was violated. The Equal Employment Opportunity Commission filed the suit against Abercrombie & Fitch on behalf of Ms. Elauf. The case was complex, and the circuit court sided with the company in that Ms.

Elauf may have worn a hijab to the interview but did not specify that this was a religious practice and she would need to be accommodated. At issue is the idea that the company could not have discriminated against her on religious grounds by not hiring her, because they were not made aware of her religion in the interview. The headscarf, they argued, does not necessarily have to be religious in nature. While this is a legal issue, the handling of the case does raise ethical issues.

For example, the company could reasonably have guessed that, at the very least, Ms. Elauf was probably a Muslim, or possibly one, and would require religious accommodation. Evidence showed that she was "highly-rated and recommended for hiring" at the Abercrombie Kids store, and was downgraded by the regional manager because of the headscarf (Totenburg, 2015). That connotes a legal violation on the part of the manager, at which point the company was forced to try to defend itself in court.

The arguments made by Abercrombie's lawyers, however, constitute unethical practice, because they knew that the company was in the wrong and chose to feign ignorance in order to help their client win. This violates ethical norms that hold people should conduct themselves in an ethical manner, and be honest in their endeavors. The company could have just hired Ms. Elauf or accepted the $20,000 initial settlement, but instead spent more than that lying to defend a manager who broke the law.

It sounds as though Abercrombie was using an evidence-based system for scoring candidates, and that system was subverted by a regional manager. It is actually difficult to police this -- the company had a good system but a person in a high position of authority circumvented the system. While the hiring staff could have protested, they would have been going against their superior.

However, the company could and should have had a hotline that would have allowed for whistleblowing in a situation like this, where the regional manager was not following company policy. Whistleblower protections would further discourage a repeat of this situation, by making it easier for people to report unethical or illegal behavior. That would then allow somebody from outside the region to investigate and deal with the regional manager in question.

The human resource department actually did its job, and it is not necessarily reasonable to ask someone within human resources to fall on his or her sword by challenging the regional manager. HR, or a designated ethics office, can be in a position, however, to have a whistleblower hotline and protections for whistleblowers. These elements are important in situations where the legal or ethical lapse is from a person high up in management.