The case backdates to 2008 when prospective employee, Samantha Elauf, interviewed for a position at a branch in Tulsa, Oklahoma and was given a "high-score" by the interviewer, Heather Cooke, reports The Guardian.This high score was then dropped after points were deducted in the "appearance and sense of style" category, when Cooke spoke to her district manager, who reportedly enquired specifically about Elauf's headscarf.
In its defence, the company argue that wearing a headscarf would conflict with its "look policy" and, despite Cooke explaining that she assumed Elauf wore the headscarf for religious reasons, as Elauf didn't request an official exemption from the policy, they didn't need to facilitate it.
The EEOC has countered this defence, saying that it creates a loophole for religious discrimination. This is the second time that the EEOC have brought the case. The U.S. District Court for the Northern District of Oklahoma originally found in favour of the EEOC, before the 10th U.S. Circuit Court of Appeals reversed the ruling in favour of Abercrombie & Fitch.
"By holding that an employer may discriminate against a job applicant or employee based on practices that the employer correctly believes to be religious, so long as the employer does not have 'actual knowledge' of the need for religious accommodation … opened a safe harbour for religious discrimination," said lawyers for the EEOC, referring to the 10th U.S. Circuit Court of Appeal ruling.