Appeals Court Overrules: Hijab Ban Not Discriminatory

In a painful defeat for the Obama administration, a federal appellate court has overturned a judge’s ruling that a clothing retailer discriminated against a Muslim woman for denying her a job because she wore a religious headscarf known as a hijab.

The lawsuit was filed by the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the nation’s workplace discrimination laws. Under Obama the agency has brought a number of similar lawsuits on behalf of Muslims around the country alleging violations of religious and civil rights. In this case the agency accuses a retail giant, Abercrombie & Fitch, of illegally discriminating against a Muslim woman by ruling her out for employment over her religious headscarf.

The woman, Samantha Elauf, applied for a job at an Abercrombie & Fitch store in a Tulsa, Oklahoma mall in 2008. The company, which focuses on hip casual wear for consumers aged 18 to 22, has a policy against head covers of any kind for its employees. According to the EEOC it amounts to discrimination based on religion and that violates Title VII of the Civil Rights Act of 1964. Employers are required to accommodate the sincere religious beliefs or practices of employees, the agency says, unless doing so would impose an undue hardship on business.

A federal judge in Oklahoma agreed, ruling in 2011 that the law imposes an obligation on the employer to accommodate the religious practices of an employee or prospective employee unless it would result in undue hardship on the conduct of its business. In his order the U.S. Chief District judge, Gregory Frizzell, said the store violated Elauf’s civil rights when it didn’t hire her. Elauf was awarded $20,000 in damages and the EEOC bragged that the court sent a clear message to employers.

But the retailer appealed and this week the Denver-based Tenth Circuit Court of Appeals reversed the ruling in favor of the EEOC, saying the store’s policy is not discriminatory, but rather intended to promote and showcase its brand, which “exemplifies a classic East Coast collegiate style of clothing.” Abercrombie & Fitch contends that prohibiting head covers is critical to the health and vitality of its “preppy” and “casual” brand, according to the ruling. 

Additionally, the federal appellate court found that Elauf’s religious headscarf only became an issue after she was ruled out as a candidate. “Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or `hijab’ for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy,” the decision states.

The Obama administration has for years targeted this particular retailer over the hijab issue, filing lawsuits in different parts of the country. In fact, last month an Obama-appointed federal judge ruled that one of Abercrombie’s northern California stores violated a Muslim woman’s (Umme-Hani Khan) civil rights when it enforced the company’s not head cover policy. Judge Yvonne Gonzalez Rogers of the U.S. District Court, Northern District of California ruled that the retailer is liable for failing to accommodate the Muslim woman’s religious beliefs and may owe punitive damages.  

“Reasonable jurors could determine that by offering Khan one option—to remove her hijab despite her religious beliefs—Abercrombie acted with malice, reckless indifference or in the face of a perceived risk that its actions violated federal law,” the judge writes in her 27-page opinion. Khan was represented by a renowned Islamic terrorist front group, Council on American-Islamic Relations (CAIR), that’s tight with the Obama administration.