The case, Equal Employment Opportunity Commission v. Abercrombie & Fitch, started in 2008 when 17-year-old Samantha Elauf applied for a job at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. At Abercrombie, salespeople are called “models,” and part of the job interview is scored on how you look. Once hired, the “models” must comply with an Abercrombie “look policy” that governs how they dress.
Elauf knew the score. Before the interview, she asked a friend who knew the store’s assistant manager whether she would be able to wear a hijab on the job. The manager told her friend that because he’d worked with someone who wore a yarmulke at Abercrombie, he expected the hijab would be fine. The only quirk was that the look policy prohibited anything black, so Elauf would have to go with a different color headscarf. She thought that sounded all right. Elauf showed up for the interview wearing what the U.S. Court of Appeals for the 10th Circuit called “an Abercrombie-like T-shirt and jeans” – plus a black hijab.
Elauf didn’t bring up her religion or headscarf, and neither did the interviewer, who did mention other requirements of the look policy such as a ban on excessive makeup or nail polish. Elauf did well. She got a two out of three score for appearance and on the other categories. Her total score was six, which ordinarily would get her the job. Once the interview was over, the interviewer was unsure of how to proceed, because she didn’t know what company policy would be on the hijab or its color. Her direct supervisor didn’t know, and she was directed to a district manager. He told the interviewer that a headscarf would be inconsistent with Abercrombie’s look policy, and that she should change Elauf’s appearance score to one out of three, which would put her total at five, one point short of a job recommendation.
Elauf didn’t get the job – and the EEOC sued Abercrombie for religious discrimination. A federal district court thought it was an open and shut case and decided summarily for the EEOC. The 10th Circuit reversed. In a split decision, the court didn’t just send the issue to trial; it issued summary judgment for Abercrombie.