731 F.3d 1106 (10th Cir. 2013), 11-5110, Equal Employment Oopportunity Commission v. Abercrombie & Fitch Stores, Inc.

Docket Nº:11-5110.
Citation:731 F.3d 1106
Opinion Judge:HOLMES, Circuit Judge.
Party Name:EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. ABERCROMBIE & FITCH STORES, INC., an Ohio corporation, d/b/a Abercrombie Kids, Defendant-Appellant.
Attorney:Mark A. Knueve of Vorys, Sater, Seymour and Pease LLP, Columbus, OH, (Daniel J. Clark and Joseph C. Fungsang of Vorys, Sater, Seymour and Pease LLP, Columbus, OH, and Jon E. Brightmire of Doerner, Saunders, Daniel & Anderson LLP, Tulsa, OK, with him on the briefs) for Defendant-Appellant. James M...
Judge Panel:Before KELLY, EBEL, and HOLMES, Circuit Judges. EBEL, Circuit Judge, concurring in part and dissenting in part.
Case Date:October 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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731 F.3d 1106 (10th Cir. 2013)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,

v.

ABERCROMBIE & FITCH STORES, INC., an Ohio corporation, d/b/a Abercrombie Kids, Defendant-Appellant.

No. 11-5110.

United States Court of Appeals, Tenth Circuit.

October 1, 2013

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Mark A. Knueve of Vorys, Sater, Seymour and Pease LLP, Columbus, OH, (Daniel J. Clark and Joseph C. Fungsang of Vorys, Sater, Seymour and Pease LLP, Columbus, OH, and Jon E. Brightmire of Doerner, Saunders, Daniel & Anderson LLP, Tulsa, OK, with him on the briefs) for Defendant-Appellant.

James M. Tucker (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel, with him on the brief), of U.S. Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellee.

Before KELLY, EBEL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Abercrombie & Fitch (" Abercrombie" ) appeals from the district court's grant of summary judgment in favor of the Equal Employment Opportunity Commission (" EEOC" ) and the court's denial of summary judgment in favor of Abercrombie, on the EEOC's claim that Abercrombie failed to provide a reasonable religious accommodation for a prospective employee, Samantha Elauf, in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's grant of summary judgment to the EEOC. Abercrombie is entitled to summary judgment as a matter of law because there is no genuine

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dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or " hijab" 1 for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie's clothing policy. Accordingly, we remand the case to the district court with instructions to vacate its judgment and enter judgment in favor of Abercrombie, and for further proceedings consistent with this opinion.

I

A

Abercrombie is a retail clothing company that operates stores across the United States under a variety of brand names, including Abercrombie & Fitch, abercrombie (" Abercrombie Kids" ), and Hollister. Abercrombie requires employees in its stores to comply with a " Look Policy." 2 That policy is intended to promote and showcase the Abercrombie brand, which " exemplifies a classic East Coast collegiate style of clothing." Aplt. Opening Br. at 5. The Look Policy applies to every Abercrombie employee. Under the circumstances of this case, however, our central concern is the policy's application to sales-floor employees, whom Abercrombie referred to as " Model[s]." Aplt.App. at 372 (Dep. of Chad Moorefield, taken Mar. 16, 2011). Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. Notably, the policy prohibits employees from wearing black clothing and " caps," although the policy does not explicate the meaning of the term " cap." Aplee. Supp.App. at 69 (Abercrombie Store Associate Handbook, dated Sept. 2006). An employee is subject to " disciplinary action ... up to and including termination" for failure to comply with the Look Policy. Id.

Abercrombie contends that its Look Policy is critical to the health and vitality of its " preppy" and " casual" brand. See Aplt. Opening Br. at 5 (quoting Aplt.App. at 375; id. at 63 (Dep. of Kalen McJilton, taken Jan. 20, 2011)) (internal quotation marks omitted). This is so, Abercrombie maintains, because it does very little advertising through traditional media outlets (e.g., print publications or television); instead, it relies on its in-store experience to promote its products. Consequently, Abercrombie expends a great deal of effort to ensure that its target customers receive a holistically brand-based, sensory experience. See, e.g., Aplt.App. at 70 (Dep. of Deon Riley, taken Mar. 17, 2011) (" Abercrombie has made a name because of the brand. It's a fact that you walk into an environment, and it's not just the smell or the sound, it's the way the merchandise is set up. It's the lighting. Most of all, it's the stylish clothing...." ). The " main part" of a Model's job is to " represent [Abercrombie's] clothing[,] first and foremost." Id. at 376. To Abercrombie, a Model who violates the Look Policy by wearing inconsistent clothing " inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the

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position, and ultimately damages the brand." Aplt. Opening Br. at 8.

The interviewing process plays an important role in furthering Abercrombie's objective of ensuring that employees adhere to its Look Policy. Managers assess applicants on appearance and style during the interview. They are supposed to inform applicants of various aspects of the job, including the Look Policy. New Models typically receive a copy of the policy in an employee handbook and sign an acknowledgment that they have received it, when they start work.

Abercrombie instructs its store managers not to assume facts about prospective employees in job interviews and, significantly, not to ask applicants about their religion. If a question arises during the interview regarding application of the Look Policy, or if a prospective employee requests a deviation from the policy (for example, based on an inflexible religious practice), the store manager is instructed to contact Abercrombie's corporate human resources department (" HR" ), or his or her direct supervisor. HR managers may grant accommodations if doing so would not harm the brand.

B

Samantha Elauf claims to be a practicing Muslim.3 In mid-2008, Ms. Elauf, then seventeen-years old, applied for a Model position at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. She had previously purchased and worn Abercrombie clothes.

Prior to her interview, Ms. Elauf discussed with a friend who worked at Abercrombie's Woodland Hills location, Farisa Sepahvand, whether wearing a hijab to work would be permissible. Ms. Elauf has worn a hijab since she was thirteen and testified that she does so for religious reasons. The Quran— the " sacred scripture" of the Islamic faith, Aplee. Supp.App. at 5 (Dep. of John L. Esposito, taken Feb. 22, 2011)— counsels women to protect their modesty, and some religious scholars " believe that the Qu[ ]ran does require an hijab" to be worn by Muslim women, " but there are many who disagree with that interpretation," id. at 2. As the EEOC's expert, Dr. Esposito, testified, although some Muslim women wear hijabs for religious reasons, those are not the only reasons that Muslim women wear hijabs; for example, some do so for cultural reasons or in order to demonstrate a personal rejection of certain aspects of Western-style dress.4 Dr. Esposito testified that, in understanding the reasons why people maintain certain styles of dress, " it really is, the question is, what is their motivation." Aplt.App. at 292; see id. at 472 (noting, as to why a hijab is worn, " it really depends on the woman" ).

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In responding to Ms. Elauf's inquiry about wearing a headscarf, Ms. Sepahvand testified that she had raised the issue with assistant manager Kalen McJilton, who knew Ms. Elauf from her prior visits to the store. Noting that he had previously worked at Abercrombie with someone who wore a white yarmulke, Mr. McJilton suggested that he did not see any problem with Ms. Elauf wearing a headscarf, " especially if she didn't wear a headscarf that was black." Aplee. Supp.App. at 181 (Dep. of Farisa Sepahvand, taken Mar. 31, 2011) (internal quotation marks omitted). Ms. Sepahvand then communicated to Ms. Elauf that, although a headscarf would be permitted, because of Abercrombie's no-black-clothing policy, she would not be able to wear a black one. Ms. Elauf seemed agreeable to that restriction.

Ms. Elauf met with assistant manager Heather Cooke to interview for the Model position. Ms. Cooke was already familiar with Ms. Elauf, having observed her in the Abercrombie store chatting with Ms. Sepahvand and working elsewhere in the Woodland Hills Mall. Ms. Cooke had seen Ms. Elauf wearing a headscarf prior to the interview. Ms. Cooke " did not know" Ms. Elauf's religion, but she " assumed that she was Muslim," Aplt.App. at 365 (Dep. of Heather Cooke, taken Jan. 19, 2011), and " figured that was the religious reason why she wore her head scarf," Aplee. Supp.App. at 48. In the interview, Ms. Cooke did not ask Ms. Elauf if she was a Muslim.

Ms. Elauf was familiar with the type of clothing Abercrombie sold and knew that Models were required to wear similar clothing. During the interview, Ms. Elauf wore an Abercrombie-like T-shirt and jeans. She also wore a headscarf (i.e., hijab); it was black. According to Ms. Elauf, Ms. Cooke never mentioned the Look Policy by name but she did describe some of the dress requirements for Abercrombie employees, and informed Ms. Elauf that she would have to wear clothing similar to that sold by Abercrombie and, specifically, that she could not wear heavy makeup or nail polish.

During the course of the interview, Ms. Elauf never informed Ms. Cooke that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie's clothing policy. Indeed, the topic of her headscarf never came...

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