abercrombie and fitch discrimination case study

• Economic Justice

Case: Abercrombie & Fitch Employment Discrimination

• Abercrombie & Fitch Employment Discrimination

Date Filed: 03/17/2006

Gonzalez v. abercrombie & fitch stores, challenging employment discrimination.

In June 2003, LDF filed a class-action lawsuit, Gonzalez v. Abercrombie & Fitch Stores , against national clothing retailer, Abercrombie & Fitch. The lawsuit, filed in U.S. District Court in San Francisco, charged that in addition to selling so-called “classic” looks, Abercrombie also practiced a classic form of discrimination against Black, Latino, and Asian American applicants and employees. The suit alleged that Abercrombie refused to hire qualified minority applicants as Brand Representatives working on the sales floor while discouraging applications from minority candidates. It also charged that in the rare instances when minorities were hired, they were given undesirable positions to keep them out of the public eye.

The suit was filed by nine young adults of color who were refused sales jobs or terminated based on their race and sued on behalf of themselves and others treated similarly. LDF joined with the Mexican American Legal Defense and Educational Fund (MALDEF), the Asian Pacific American Legal Center, and the law firm of Lieff, Cabraser, Heimann & Bernstein to represent the plaintiffs. The suit asked that the court order Abercrombie & Fitch to end its discriminatory policies and practices, as well as award the plaintiffs and class members back pay and monetary damages.

The class grew as other minority applicants and employees across the country joined the original plaintiffs. The Equal Employment Opportunity Commission then joined the suit in 2004.  The law firms of Kohn, Swift & Graf, P.C. and Minami, Lew & Tamaki were added as co-counsel representing the plaintiffs. In November 2004, LDF and co-counsel reached a settlement with the company, winning $40 million dollars for rejected applicants and employees who had been discriminated against by the company. The settlement’s consent decree also required the company to institute a range of policies and programs to promote diversity among its workforce and to prevent discrimination based on race or gender.

To ensure compliance with the provisions of the consent decree, Abercrombie & Fitch was instructed to name a Vice-President for Diversity, who reports directly to the CEO, and to provide diversity training for all employees with hiring authority. A new internal complaint procedure also provided employees with a mechanism to report problems. Additionally, the settlement required the store to establish “benchmarks” for the hiring and promotion of African-Americans, Latinos, Asian Americans, and women while reporting its progress toward these goals at regular intervals to the plaintiffs’ attorneys and to a Special Master named by the court.

Further, the company was required to hire 25 recruiters to seek out minority employees. The company was also barred from utilizing its previous recruitment strategies, such as targeting particular predominately white fraternities or sororities. LDF, as part of the broad coalition of civil rights groups representing the Plaintiffs, brought an end to Abercrombie & Fitch’s unacceptable employment practices by identifying and preventing the continued use of the company’s discriminatory recruitment, hiring, job assignments, promotion, and training of employees.

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Eeoc v. abercrombie & fitch stores, inc..

• Supreme Court

EEOC v. ABERCROMBIE & FITCH STORES, INC. 731 F. 3d 1106, reversed and remanded.

• Syllabus [Syllabus] [PDF]
• Opinion , Scalia [Scalia Opinion] [PDF]
• Concurrence , Alito [Alito Concurrence] [PDF]
• Concur-Dissent , Thomas [Thomas Concur-Dissent] [PDF]

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 , 337.

SUPREME COURT OF THE UNITED STATES

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v . ABERCROMBIE & FITCH STORES, INC.

certiorari to the united states court of appeals for the tenth circuit

Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation.

Held : To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1) . And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives , regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly in dicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices. Pp. 2–7.

731 F. 3d 1106 , reversed and remanded.

 S calia , J., delivered the opinion of the Court, in which Roberts, C. J. , and K ennedy , G insburg , B reyer , S otomayor , and K agan , JJ., joined. A lito , J., filed an opinion concurring in the judgment. T homas, J., filed an opinion concurring in part and dissenting in part.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

_________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER v. ABERCROMBIE & FITCH STORES, INC.

on writ of certiorari to the united states court of appeals for the tenth circuit

 Justice Scalia delivered the opinion of the Court.

 Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.

 We summarize the facts in the light most favorable to the Equal Employment Opportunity Commission (EEOC), against whom the Tenth Circuit granted summary judgment. Respondent Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. The Look Policy prohibits “caps”—a term the Policy does not define—as too informal for Abercrombie’s desired image.

 Samantha Elauf is a practicing Muslim who, consistent  with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf’s headscarf would conflict with the store’s Look Policy.

 Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

 The EEOC sued Abercrombie on Elauf’s behalf, claiming that its refusal to hire Elauf violated Title VII. The District Court granted the EEOC summary judgment on the issue of liability, 798 F. Supp. 2d 1272 (ND Okla. 2011), held a trial on damages, and awarded $20,000. The Tenth Circuit reversed and awarded Abercrombie summary judgment. 731 F. 3d 1106 (2013). It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation. Id., at 1131. We granted certiorari. 573 U. S. ___ (2014).

 Title VII of the Civil Rights Act of 1964 78 Stat. 253 , as amended, prohibits two categories of employment prac-tices. It is unlawful for an employer:

“(1) to fail or refuse to hire or to discharge any indi vidual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a) .

 These two proscriptions, often referred to as the “disparate treatment” (or “intentional discrimination”) provision and the “disparate impact” provision, are the only causes of action under Title VII. The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e( j). 1

 Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision. 2

  The disparate-treatment provision forbids employers to: (1) “fail . . . to hire” an applicant (2) “because of” (3) “such individual’s . . . religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf’s wearing of a headscarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of” her religious practice.

 The term “because of” appears frequently in antidiscrimination laws. It typically imports, at a minimum, the traditional standard of but-for causation. University of Tex. Southwestern Medical Center v . Nassar , 570 U. S. ___ (2013). Title VII relaxes this standard, however, to prohibit even making a protected characteristic a “motivating factor” in an employment decision. 42 U. S. C. §2000e–2(m) . “Because of” in §2000e–2(a)(1) links the forbidden consideration to each of the verbs preceding it; an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on.

 It is significant that §2000e–2(a)(1) does not impose a knowledge requirement. As Abercrombie acknowledges, some antidiscrimination statutes do. For example, the Americans with Disabilities Act of 1990 defines discrimi nation to include an employer’s failure to make “reason- able accommodations to the known physical or mental limitations” of an applicant. §12112(b)(5)(A) (emphasis added). Title VII contains no such limitation.

 Instead, the intentional discrimination provision prohibits certain motives , regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive . Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

 Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

 Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence. Its disparate- treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice. A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability. 3

 Abercrombie argues in the alternative that a claim based on a failure to accommodate an applicant’s religious practice must be raised as a disparate-impact claim, not a disparate-treatment claim. We think not. That might have been true if Congress had limited the meaning of “religion” in Title VII to religious belief —so that discriminating against a particular religious practice would not be disparate treatment though it might have disparate impact. In fact, however, Congress defined “religion,” for Title VII’s purposes, as “includ[ing] all aspects of religious observance and practice, as well as belief.” 42 U. S. C. §2000e(j) . Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.

 Nor does the statute limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored  treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub-sequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

 The Tenth Circuit misinterpreted Title VII’s requirements in granting summary judgment. We reverse its judgment and remand the case for further consideration consistent with this opinion.

It is so ordered.

1  For brevity’s sake, we will in the balance of this opinion usually omit reference to the §2000e( j) “undue hardship” defense to the accom-modation requirement, discussing the requirement as though it is absolute.

2  The concurrence mysteriously concludes that it is not the plaintiff ’s burden to prove failure to accommodate. Post , at 5. But of course that is the plaintiff’s burden, if failure to hire “because of” the plaintiff’s “religious practice” is the gravamen of the complaint. Failing to hire for that reason is synonymous with refusing to accommodate the religious practice. To accuse the employer of the one is to accuse him of the other. If he is willing to “accommodate”—which means nothing more than allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary—adverse action “because of” the religious practice is not shown. “The clause that begins with the word ‘unless,’” as the concurrence describes it, ibid. , has no function except to place upon the employer the burden of establishing an “undue hardship” defense. The concurrence provides no example, not even an unrealistic hypothetical one, of a claim of failure to hire because of religious practice that does not say the employer refused to permit (“failed to accommodate”) the religious practice. In the nature of things, there cannot be one.

3  While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice— i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument. It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.

Concurrence

 Justice Alito , concurring in the judgment.

 This case requires us to interpret a provision of Title VII of the Civil Rights Act of 1964 that prohibits an employer from taking an adverse employment action (refusal to hire, discharge, etc.) “against any individual . . . because of [ 1 ] such individual’s . . . religion.” 42 U. S. C. §2000e–2(a) . Another provision states that the term “religion” “includes 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.” §2000e( j). When these two provisions are put together, the following rule (expressed in somewhat simplified terms) results: An employer may not take an adverse employment action against an applicant or employee because of any aspect of that individual’s religious observance or practice unless the employer demonstrates that it is unable to reasonably accommodate that observance or practice without undue hardship.

 In this case, Samantha Elauf, a practicing Muslim, wore  a headscarf for a religious reason when she was interviewed for a job in a store operated by Abercrombie & Fitch. She was rejected because her scarf violated Abercrombie’s dress code for employees. There is sufficient evidence in the summary judgment record to support a finding that Abercrombie’s decisionmakers knew that Elauf was a Muslim and that she wore the headscarf for a religious reason. But she was never asked why she wore the headscarf and did not volunteer that information. Nor was she told that she would be prohibited from wearing the headscarf on the job. The Tenth Circuit held that Abercrombie was entitled to summary judgment because, except perhaps in unusual circumstances, “[a]pplicants or employees must initially inform employers of their religious practices that conflict with a work requirement and their need for a reasonable accommodation for them.” 731 F. 3d 1106 , 1142 (2013) (emphasis deleted).

 The relevant provisions of Title VII, however, do not impose the notice requirement that formed the basis for the Tenth Circuit’s decision. While I interpret those provisions to require proof that Abercrombie knew that Elauf wore the headscarf for a religious reason, the evidence of Abercrombie’s knowledge is sufficient to defeat summary judgment.

 The opinion of the Court states that “§2000e–2(a)(1) does not impose a knowledge requirement,” ante , at 4, but then reserves decision on the question whether it is a condition of liability that the employer know or suspect that the practice he refuses to accommodate is a religious practice, ante , at 6, n. 3, but in my view, the answer to this question, which may arise on remand, 2 2 is obvious. I would  hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason. If §2000e–2(a)(1) really “does not impose a knowledge requirement,” ante at 4, it would be irrelevant in this case whether Abercrombie had any inkling that Elauf is a Muslim or that she wore the headscarf for a religious reason. That would be very strange.

 The scarves that Elauf wore were not articles of clothing that were designed or marketed specifically for Muslim women. Instead, she generally purchased her scarves at ordinary clothing stores. In this case, the Abercrombie employee who interviewed Elauf had seen her wearing scarves on other occasions, and for reasons that the record does not make clear, came to the (correct) conclusion that she is a Muslim. But suppose that the interviewer in this case had never seen Elauf before. Suppose that the interviewer thought Elauf was wearing the scarf for a secular reason. Suppose that nothing else about Elauf made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason. If “§2000e–2(a)(1) does not impose a knowledge requirement,” Abercrombie would still be liable. The EEOC, which sued on Elauf’s behalf, does not adopt that interpretation, see, e.g., Brief for Petitioner 19, and it is surely wrong.

 The statutory text does not compel such a strange result. It is entirely reasonable to understand the prohibition against an employer’s taking an adverse action because of a religious practice to mean that an employer may  not take an adverse action because of a practice that the employer knows to be religious. Consider the following sentences. The parole board granted the prisoner parole because of an exemplary record in prison. The court sanctioned the attorney because of a flagrant violation of Rule 11 of the Federal Rules of Civil Procedure. No one is likely to understand these sentences to mean that the parole board granted parole because of a record that, unbeknownst to the board, happened to be exemplary or that the court sanctioned the attorney because of a violation that, unbeknownst to the court, happened to be flagrant. Similarly, it is entirely reasonable to understand this statement—“The employer rejected the applicant because of a religious practice”—to mean that the employer rejected the applicant because of a practice that the employer knew to be religious.

 This interpretation makes sense of the statutory provisions. Those provisions prohibit intentional discrimination, which is blameworthy conduct, but if there is no knowledge requirement, an employer could be held liable without fault. The prohibition of discrimination because of religious practices is meant to force employers to consider whether those practices can be accommodated without undue hardship. See §2000e( j). But the “no-knowledge” interpretation would deprive employers of that opportunity. For these reasons, an employer cannot be liable for taking adverse action because of a religious practice if the employer does not know that the practice is religious.

 A plaintiff need not show, however, that the employer took the adverse action because of the religious nature of the practice. Cf. post , at 4 ( Thomas, J ., concurring in part and dissenting in part). Suppose, for example, that an employer rejected all applicants who refuse to work on Saturday, whether for religious or nonreligious reasons. Applicants whose refusal to work on Saturday was known  by the employer to be based on religion will have been rejected because of a religious practice.

 This conclusion follows from the reasonable accommodation requirement imposed by §2000e( j). If neutral work rules ( e.g. , every employee must work on Saturday, no employee may wear any head covering) precluded liability, there would be no need to provide that defense, which allows an employer to escape liability for refusing to make an exception to a neutral work rule if doing so would impose an undue hardship.

 This brings me to a final point. Under the relevant statutory provisions, an employer’s failure to make a reasonable accommodation is not an element that the plaintiff must prove. I am therefore concerned about the Court’s statement that it “ is the plaintiff’s burden [to prove failure to accommodate].” Ante, at 3 n. 2. This blatantly contradicts the language of the statutes. As I noted at the beginning, when §2000e–2(a) and §2000e( j) are combined, this is the result:

“It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any individual . . . because of [any aspect of] such individual’s . . . religious . . . practice . . . unless an employer demonstrates that he is unable to reasonably accommodate to [the] employee’s or prospective employee’s religious . . . practice . . . without undue hardship on the conduct of the employer’s business. ” (Emphasis added.)

 The clause that begins with the term “unless” unmistakably sets out an employer defense. If an employer chooses to assert that defense, it bears both the burden of production and the burden of persuasion. A plaintiff, on the other hand, must prove the elements set out prior to the “unless” clause, but that portion of the rule makes no mention of accommodation. Thus, a plaintiff need not plead or prove that the employer wished to avoid making  an accommodation or could have done so without undue hardship. If a plaintiff shows that the employer took an adverse employment action because of a religious observance or practice, it is then up to the employer to plead and prove the defense. The Court’s statement subverts the statutory text, and in close cases, the Court’s reallocation of the burden of persuasion may be decisive.

 In sum, the EEOC was required in this case to prove that Abercrombie rejected Elauf because of a practice that Abercrombie knew was religious. It is undisputed that Abercrombie rejected Elauf because she wore a headscarf, and there is ample evidence in the summary judgment record to prove that Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a religious reason. The Tenth Circuit therefore erred in ordering the entry of summary judgment for Abercrombie. On remand, the Tenth Circuit can consider whether there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge. The Tenth Circuit will also be required to address Abercrombie’s claim that it could not have accommodated Elauf’s wearing the headscarf on the job without undue hardship.

1  Under 42 U. S. C. §2000e–2(m) , an employer takes an action “because of” religion if religion is a “motivating factor” in the decision.

2 2 Cooke testified that she told Johnson that she believed Elauf wore a head scarf for a religious reason, App. 87, but Johnson testified that Cooke did not share this belief with him, id., at 146. If Abercrombie’s knowledge is irrelevant, then the lower courts will not have to decide whether there is a genuine dispute on this question. But if Abercrombie’s knowledge is relevant and if the lower courts hold that there is a genuine dispute of material fact about Abercrombie’s knowledge, the question will have to be submitted to the trier of fact. For these reasons, we should decide this question now.

Concurrence and Dissent

 Justice Thomas , concurring in part and dissenting in part.

 I agree with the Court that there are two—and only two—causes of action under Title VII of the Civil Rights Act of 1964 as understood by our precedents: a disparate-treatment (or intentional-discrimination) claim and a disparate-impact claim. Ante, at 3. Our agreement ends there. Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.” Because the Equal Employment Opportunity Commission (EEOC) can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the Tenth Circuit.

 This case turns on whether Abercrombie’s conduct constituted “intentional discrimination” within the meaning of 42 U. S. C. §1981a(a)(1) . That provision allows a Title VII plaintiff to “recover compensatory and punitive damages” only against an employer “who engaged in unlawful intentional discrimination (not an employment  practice that is unlawful because of its disparate impact).” The damages award EEOC obtained against Abercrombie is thus proper only if that company engaged in “intentional discrimination”—as opposed to “an employment practice that is unlawful because of its disparate impact”—within the meaning of §1981a(a)(1).

 The terms “intentional discrimination” and “disparate impact” have settled meanings in federal employment discrimination law. “[I]ntentional discrimination . . . occur[s] where an employer has treated a particular person less favorably than others because of a protected trait.” Ricci v. DeStefano , 557 U. S. 557 , 577 (2009) (internal quotation marks and alteration omitted). “[D]isparate-impact claims,” by contrast, “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Raytheon Co. v. Hernandez , 540 U. S. 44 , 52 (2003) (internal quotation marks omitted). Conceived by this Court in Griggs v. Duke Power Co. , 401 U. S. 424 (1971) , this “theory of discrimination” provides that “a facially neutral employment practice may be deemed illegally discriminatory without evidence of the employer’s subjective intent to discriminate that is required in a disparate-treatment case,” Raytheon, supra, at 52–53 (internal quotation marks and alteration omitted).

 I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf’s religious practice of wearing a headscarf. Ante, at 2. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a  classic case of an alleged disparate impact. It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company’s Look Policy. See ibid. ; App. 134, 144. Because I cannot classify Abercrombie’s conduct as “intentional discrimination,” I would affirm.

 Resisting this straightforward application of §1981a, the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.” Ante, at 6–7. But contrary to the majority’s assumption, this novel theory of discrimination is not commanded by the relevant statutory text.

 Title VII makes it illegal for an employer “to fail or refuse to hire . . . any individual . . . because of such individual’s . . . religion.” §2000e–2(a)(1). And as used in Title VII, “[t]he term ‘religion’ includes 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.” §2000e( j). With this gloss on the definition of “religion” in §2000e–2(a)(1), the majority concludes that an employer may violate Title VII if he “refuse[s] to hire . . . any individual . . . because of such individual’s . . . religious . . . practice” (unless he has an “undue hardship” defense). See ante, at 3–4.

 But inserting the statutory definition of religion into §2000e–2(a) does not answer the question whether Abercrombie’s refusal to hire Elauf was “because of her religious practice.” At first glance, the phrase “because of  such individual’s religious practice” could mean one of two things. Under one reading, it could prohibit taking an action because of the religious nature of an employee’s particular practice. Under the alternative reading, it could prohibit taking an action because of an employee’s practice that happens to be religious.

 The distinction is perhaps best understood by example. Suppose an employer with a neutral grooming policy forbidding facial hair refuses to hire a Muslim who wears a beard for religious reasons. Assuming the employer applied the neutral grooming policy to all applicants, the motivation behind the refusal to hire the Muslim applicant would not be the religious nature of his beard, but its existence. Under the first reading, then, the Muslim applicant would lack an intentional-discrimination claim, as he was not refused employment “because of” the religious nature of his practice. But under the second reading, he would have such a claim, as he was refused employment “because of” a practice that happens to be religious in nature.

 One problem with the second, more expansive reading is that it would punish employers who have no discrimina- tory motive. If the phrase “because of such individual’s religious practice” sweeps in any case in which an employer takes an adverse action because of a practice that hap- pens to be religious in nature, an employer who had no idea that a particular practice was religious would be penalized. That strict-liability view is plainly at odds with the concept of intentional discrimination. Cf. Raytheon , supra, at 54, n. 7 (“If [the employer] were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on [the applicant’s] disability. And, if no part of the hiring decision turned on [the applicant’s] status as disabled, he cannot, ipso facto , have been subject to disparate treatment”). Surprisingly, the majority leaves the door open to  this strict-liability theory, reserving the question whether an employer who does not even “suspec[t] that the practice in question is a religious practice” can nonetheless be punished for intentional discrimination. Ante, at 6, n. 3.

 For purposes of today’s decision, however, the majority opts for a compromise, albeit one that lacks a foothold in the text and fares no better under our precedents. The majority construes §2000e–2(a)(1) to punish employers who refuse to accommodate applicants under neutral policies when they act “with the motive of avoiding accommodation.” Ante , at 5. But an employer who is aware that strictly applying a neutral policy will have an adverse effect on a religious group, and applies the policy anyway, is not engaged in intentional discrimination, at least as that term has traditionally been understood. As the Court explained many decades ago, “ ‘Discriminatory purpose’ ”— i.e., the purpose necessary for a claim of intentional discrimination—demands “more than . . . awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney , 442 U. S. 256 , 279 (1979) (internal citation and footnote omitted).

 I do not dispute that a refusal to accommodate can, in some circumstances, constitute intentional discrimination. If an employer declines to accommodate a particular religious practice, yet accommodates a similar secular (or other denominational) practice, then that may be proof that he has “treated a particular person less favorably than others because of [a religious practice].” Ricci , 557 U. S., at 577 (internal quotation marks and alteration omitted); see also, e.g., Dixon v. Hallmark Cos. , 627 F. 3d 849 , 853 (CA11 2010) (addressing a policy forbidding display of “religious items” in management offices). But merely refusing to create an exception to a neutral policy  for a religious practice cannot be described as treating a particular applicant “less favorably than others.” The majority itself appears to recognize that its construction requires something more than equal treatment. See ante, at 6–7 (“Title VII does not demand mere neutrality with regard to religious practices,” but instead “gives them favored treatment”). But equal treatment is not disparate treatment, and that basic principle should have disposed of this case.

 The majority’s novel theory of intentional discrimination is also inconsistent with the history of this area of employment discrimination law. As that history shows, cases arising out of the application of a neutral policy absent religious accommodations have traditionally been understood to involve only disparate-impact liability.

 When Title VII was enacted in 1964, it prohibited discrimination “because of . . . religion” and did not include the current definition of “religion” encompassing “religious observance and practice” that was added to the statute in 1972. Civil Rights Act of 1964, §§701, 703(a), 78 Stat. 253 –255. Shortly thereafter, the EEOC issued guidelines purporting to create “an obligation on the part of the employer to accommodate to the religious needs of employees.” 31 Fed. Reg. 8370 (1966). From an early date, the EEOC defended this obligation under a disparate-impact theory. See Brief for United States as Amicus Curiae in Dewey v. Reynolds Metals Co. , O. T. 1970, No. 835, pp. 7, 13, 29–32. Courts and commentators at the time took the same view. See, e.g., Reid v. Memphis Publishing Co. , 468 F. 2d 346 , 350 (CA6 1972); Dewey v. Reynolds Metals Co. , 300 F. Supp. 709, 713 (WD Mich. 1969), rev’d, 429 F. 2d 324 (CA6 1970), aff’d by an equally di- vided Court, 402 U. S. 689 (1971) ( per curiam ); 1 B. Lindemann & P. Grossman, Employment Discrimination Law  187–188 (3d ed. 1976).

 This Court’s first decision to discuss a refusal to accommodate a religious practice, Trans World Airlines, Inc. v. Hardison , 432 U. S. 63 (1977) , similarly did not treat such conduct as intentional discrimination. Hardison involved a conflict between an employer’s neutral seniority system for assigning shifts and an employee’s observance of a Saturday Sabbath. The employer denied the employee an accommodation, so he refused to show up for work on Saturdays and was fired. Id., at 67–69. This Court held that the employer was not liable under Title VII because the proposed accommodations would have imposed an undue hardship on the employer. Id. , at 77. To bolster its conclusion that there was no statutory violation, the Court relied on a provision of Title VII shielding the application of a “ ‘bona fide seniority or merit system’ ” from challenge unless that application is “ ‘the result of an intention to discriminate because of . . . religion.’ ” Id., at 81–82 (quoting §2000e–2(h)). In applying that provision, the Court observed that “[t]here ha[d] been no suggestion of discriminatory intent in th[e] case.” Id., at 82. But if the major- ity’s view were correct—if a mere refusal to accommodate a religious practice under a neutral policy could constitute intentional discrimination—then the Court in Hardison should never have engaged in such reasoning. After all, the employer in Hardison knew of the employee’s religious practice and refused to make an exception to its neutral seniority system, just as Abercrombie arguably knew of Elauf’s religious practice and refused to make an exception to its neutral Look Policy. 1 *

  Lower courts following Hardison likewise did not equate a failure to accommodate with intentional discrimination. To the contrary, many lower courts, including the Tenth Circuit below, wrongly assumed that Title VII creates a freestanding failure-to-accommodate claim distinct from either disparate treatment or disparate impact. See, e.g., 731 F. 3d 1106 , 1120 (2013) (“A claim for religious discrimination under Title VII can be asserted under several different theories, including disparate treatment and failure to accommodate” (internal quotation marks omitted)); Protos v. Volkswagen of Am., Inc. , 797 F. 2d 129 , 134, n. 2 (CA3 1986) (“In addition to her religious accommodation argument, [the plaintiff] maintains that she prevailed in the district court on a disparate treatment claim”). That assumption appears to have grown out of statements in our cases suggesting that Title VII’s definitional provision concerning religion created an independ ent duty. See, e.g., Ansonia Bd. of Ed. v. Philbrook , 479 U. S. 60 , 63, n. 1 (1986) (“The reasonable accommodation duty was incorporated into the statute, somewhat awkwardly, in the definition of religion”). But in doing so, the lower courts correctly recognized that a failure-to-accommodate claim based on the application of a neutral policy is not a disparate-treatment claim. See, e.g., Reed v. International Union, United Auto, Aerospace and Agricultural Implement Workers of Am. , 569 F. 3d 576 , 579–580 (CA6 2009); Chalmers v. Tulon Co. of Richmond , 101 F. 3d 1012 , 1018 (CA4 1996).

 At least before we granted a writ of certiorari in this case, the EEOC too understood that merely applying a neutral policy did not automatically constitute intentional discrimination giving rise to a disparate-treatment claim. For example, the Commission explained in a recent compliance manual, “A religious accommodation claim is distinct from a disparate treatment claim, in which the question is whether employees are treated equally.” EEOC Compliance Manual §12–IV, p. 46 (2008). Indeed, in asking us to take this case, the EEOC dismissed one of Abercrombie’s supporting authorities as “a case addressing intentional discrimination, not religious accommodation.” Reply to Brief in Opposition 7, n. Once we granted certiorari in this case, however, the EEOC altered course and advanced the intentional-discrimination theory now adopted by the majority. The Court should have rejected this eleventh-hour request to expand our understanding of “intentional discrimination” to include merely applying a religion-neutral policy.

 The Court today rightly puts to rest the notion that Title VII creates a freestanding religious-accommodation claim, ante, at 3, but creates in its stead an entirely new form of liability: the disparate-treatment-based-on-equal-treatment  claim. Because I do not think that Congress’ 1972 redefinition of “religion” also redefined “intentional discrimination,” I would affirm the judgment of the Tenth Circuit. I respectfully dissent from the portions of the majority’s decision that take the contrary view.

1 * Contrary to the EEOC’s suggestion, Trans World Airlines, Inc. v. Hardison , 432 U. S. 63 (1977) , did not establish that a refusal to accommodate a religious practice automatically constitutes intentional discrimination. To be sure, Hardison remarked that the “effect of ” the 1972 amendment expanding the definition of religion “was to make it an unlawful employment practice under [§2000e–2(a)(1)] for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” Id., at 74. But that statement should not be understood as a holding that such conduct automatically gives rise to a disparate-treatment claim. Although this Court has more recently described §2000e–2(a)(1) as originally creating only disparate-treatment liability, e.g., Ricci v. DeStefano , 557 U. S. 557 , 577 (2009), it was an open question at the time Hardison was decided whether §2000e–2(a)(1) also created disparate-impact liability, see, e.g., Nashville Gas Co. v. Satty , 434 U. S. 136 , 144 (1977); General Elec. Co. v. Gilbert , 429 U. S. 125 , 153–155 (1976) (Brennan, J., dissenting). In fact, both the employee and the EEOC in Hardison argued before this Court that the employer had violated §2000e–2(a)(1) under a disparate-impact theory. See Brief for Respondent 15, 25–26, and Brief for United States et al. as Amici Curiae 33–36, 50, in Trans World Airlines, Inc. v. Hardison , O. T. 1976, No. 75–1126 etc. In any event, the relevant language in Hardison is dictum. Because the employee’s termination had occurred before the 1972 amendment to Title VII’s definition of religion, Hardison applied the then-existing EEOC guideline—which also contained an “undue hardship” defense—not the amended statutory definition. 432 U. S., at 76, and n. 11. Hardison ’s comment about the effect of the 1972 amendment was thus entirely beside the point.

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Abercrombie’s Legal Defeat—and Its Cultural Failure

“Culture” is a word activists like to deploy nowadays—there’s “rape culture” to condemn or a “culture of respect” to strive for—and sometimes it can sound like a vague or lazy way to invoke how power or discrimination work. Once in while, though, you see why that tote bag of a term makes sense—how the culture of a company or an institution matters very specifically when it comes to people’s rights. This week, that reminder came from the Supreme Court, which ruled, in an 8-1 decision, that Abercrombie & Fitch, the purveyor of pricey, preppy, body-conscious clothing for tweens and teens, had violated civil-rights law when it refused to hire a young Muslim woman who wore a head scarf to her job interview.

Samantha Elauf was seventeen when she applied for a job at an Abercrombie & Fitch Kids store in a Tulsa, Oklahoma, mall in 2008. She loved the mall, which she described as her second home, and was excited about the employee discount. The assistant manager who interviewed her deemed her qualified but worried that her hijab would violate the company’s “Look Policy,” a weirdly exhaustive rulebook that reads as though it had been dreamed up by a middle-school queen bee on a Ritalin bender. (BuzzFeed published parts of it, revealing, for example, that beards or mustaches were unacceptable on male employees, and that “sun-kissed” highlights were allowed but “no streaks, blocks or chunks or contrasting colors”; a New York article in 2014 added that strings on peasant blouses were required to remain untied and skinny jeans cuffed at one and a quarter inches.) The relevant prohibition for the assistant manager in Tulsa was one forbidding “caps.” When she consulted her district manager, he agreed that there was a problem, and Elauf was not hired, despite receiving a high rating as a potential employee.

The Equal Employment Opportunity Commission filed suit on Elauf’s behalf and a district court found in her favor, awarding her twenty thousand dollars in damages. The Tenth Circuit Court of Appeals reversed the decision, with the peculiar reasoning that an employer could not be held liable for failing to “accommodate a religious practice,” even if it had failed to do so, if an employee or prospective employee had not specifically asked for the accommodation. But as Justice Antonin Scalia, who wrote the majority opinion in this week’s decision, noted, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Abercrombie managers could have asked Elauf if she’d be wearing the head scarf for religious reasons while on the job—as Justice Samuel Alito said during oral arguments, maybe she was just having a bad hair day when she came for her interview. They didn’t—they deemed it too awkward—but they did assume that Elauf covered her hair as a religious practice, and they rejected her on the basis of that assumption.

Any employer can have a dress code, of course, but it cannot use it to discriminate against an individual on the basis of his or her religious practice. If an employer fires or refuses to hire a Muslim who wears a hijab, an Orthodox Jew who wears a yarmulke, or a Sikh who wears a turban because of that religious practice, without even trying to find an accommodation, then that’s discrimination under Title VII of the Civil Rights Act of 1964. Announcing the opinion from the bench this week, Scalia declared the case “really easy.” (Clarence Thomas was the sole dissent: he argued that Abercrombie’s decision was based on a neutral anti-cap policy.)

So how was it that Abercrombie continued to fight all the way up to the Supreme Court in a case that Scalia—no pushover, even on matters of religious liberty—deemed an easy call? Maybe because the company’s culture—and the style and the attitude it marketed—persuaded it that its exclusionary policies would seem acceptable.

In 1992, Abercrombie was a hundred-year-old company known for its safari wear when a new C.E.O., Mike Jeffries, came in to update it. Jeffries had a vision, and it was not a broad one. As he told Salon in a 2006 interview, “In every school there are the cool and popular kids, and there are the not-so-cool kids. Candidly, we go after the cool kids. We go after the attractive, all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes] and they can’t belong. Are we exclusionary? Absolutely.” Under Jeffries, Abercrombie photo spreads partook of a certain Leni Riefenstahl-at-a-frat-mixer aesthetic—lots of well-toned, bare-chested young white men (at the brand’s Hollister outlets, customers were greeted by shirtless men known, in company parlance, as “lifeguards”) and, among the young women, a surfeit of “sun-kissed,” long-haired blondeness and tanned bare legs. Salespeople hired for the stores were called “models” and subjected to the rigors of the Look Policy. Abercrombie did not sell women’s clothes in sizes above ten. In his New York piece, Matthew Shaer cited a catalogue of P.R. missteps with a similar flavor: “the quickly recalled line of Asian-themed t-shirts, which featured men in rice paddy hats and cartoonishly slanted eyes; a line of thongs, marketed to girls as young as ten, with the words wink-wink on the crotch.” For a while, the whole approach worked well, and profitably, for the company, and Jeffries converted a brand known for outfitting Teddy Roosevelt and Ernest Hemingway into one with candy-like allure for suburban middle-schoolers. At its height, Abercrombie had a thousand storefronts.

The culture of the place also shaped its hiring practices in ways that got it into trouble. Elauf’s was not the first major discrimination suit against Abercrombie. In 2004, the company agreed to pay fifty million dollars to several thousand employees in order to settle a class-action lawsuit charging that it discriminated against African-Americans, Latinos, and Asian-Americans in both its hiring practices and its advertising. Among other things, the suit alleged that non-whites were regularly shoehorned into back-of-the-store jobs where customers wouldn’t see them as much.

Jeffries found it difficult to imagine that there might be cool kids who were not popular or, for that matter, blonde and white. The eventual result was a major downturn for the brand. The recession and the rise of stores like H&M, Forever 21, and Uniqlo that sell fun, stylish clothes cheaply, were factors. But there was also that aggressively conventional vibe. Erik Gordon, a business-school professor at the University of Michigan, told New York , “This generation is about inclusiveness and valuing diversity. It’s not about looking down on people.” That may be a bit hopeful, but there’s something to it: this is the era of transgender cover girls and Sikh Gap models . In the deeply if imperfectly pluralistic United States, even during moments of high anti-Muslim feeling, a policy like the misguided one in France, which forbids the hijab in public schools, would never get serious consideration. Elauf went on to be hired at Forever 21 and Old Navy, and a photo in the Wall Street Journal this year showed her working at her most recent job, as a merchandising manager at Oklahoma’s first Urban Outfitters: she’s wearing a black head scarf, artfully shredded jeans, and ankle boots, and she’s smiling. Abercrombie was out of touch.

In its marketing strategy if not its legal one, the company is trying to catch up. Last December, after protests from shareholders and many months of declining store sales, Jeffries stepped down as C.E.O. In April, the company let it be known that it would pursue “more inclusive and diverse” hiring practices and allow for a dress code that was “more individualistic.” It was clearly announcing these changes in hopes of reversing its sales slump. That might seem trivial. But if it’s no longer profitable to tout your cultural intolerance, that’s pretty cool.

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Muslim Woman Denied Job Over Head Scarf Wins in Supreme Court

By Adam Liptak

• June 1, 2015

WASHINGTON — The Supreme Court on Monday revived an employment discrimination lawsuit against Abercrombie & Fitch, which had refused to hire a Muslim woman because she wore a head scarf. The company said the scarf clashed with its dress code, which called for a “classic East Coast collegiate style.”

“This is really easy,” Justice Antonin Scalia said in announcing the decision from the bench.

The company, he said, at least suspected that the applicant, Samantha Elauf, wore the head scarf for religious reasons. The company’s decision not to hire her, Justice Scalia said, was motivated by a desire to avoid accommodating her religious practice. That was enough, he concluded, to allow her to sue under a federal employment discrimination law.

The vote was 8 to 1, with Justice Clarence Thomas dissenting.

Ms. Elauf had been awarded $20,000 by a jury, but the United States Court of Appeals for the 10th Circuit, in Denver, overturned the award , saying the trial judge should have dismissed the case before trial. “Ms. Elauf never informed Abercrombie before its hiring decision that she wore her head scarf, or ‘hijab,’ for religious reasons,” Judge Jerome A. Holmes wrote for the appeals court.

The Supreme Court sent the case back to the appeals court for further consideration, but Monday’s ruling suggests that Ms. Elauf is likely to prevail.

Justice Scalia, writing for seven justices, said Ms. Elauf did not have to make a specific request for a religious accommodation to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring.

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EEOC v. Abercrombie & Fitch Stores, Inc.

Closed Expands Expression

• Key details

Key Details

• Mode of Expression Non-verbal Expression
• Date of Decision June 1, 2015
• Outcome Remanded for Decision in Accordance with Ruling, Monetary Damages / Fines
• Case Number 135 S.Ct. 2028
• Region & Country United States, North America
• Judicial Body Supreme (court of final appeal)
• Type of Law Civil Law, Constitutional Law
• Themes Religious Freedom
• Tags Discrimination

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Case Analysis

Case summary and outcome.

After Abercrombie & Fitch did not hire Samantha Elauf because her religious headscarf violated the company’s dress code, the Equal Employment Opportunity Commission sued Abercrombie. The Supreme Court of the United States rejected Abercrombie’s arguments that it had not violated Title VII of the Civil Rights Act because Elauf had not shown Abercrombie’s “actual knowledge” of her need for accommodation, as the need for an accommodation need only be a motivating factor in an employer’s decision.

Abercrombie & Fitch Stores, Inc. (Abercrombie), a retail clothing company, did not hire prospective employee Samantha Elauf, a practicing Muslim who wears a headscarf known as a hijab. Her headscarf, as well as other “caps,” violated Abercrombie’s “Look Policy” governing employee dress.

On Elauf’s behalf, the Equal Employment Opportunity Commission (EEOC) brought a claim that Abercrombie violated Title VII of the Civil Rights Act of 1964. The District Court found in favor of the EEOC, awarding Elauf damages. The Tenth Circuit Court later reversed by granting Abercrombie summary judgment, holding that liability for failure to accommodate only attaches after the prospective employee request accommodation from the employer.

Decision Overview

Under Title VII of the Civil Rights Act of 1964, an employer cannot decline to hire a prospective employee in an attempt to avoid accommodating the prospective employee’s religious practice, assuming the employer could accommodate without undue hardship. In this case, the Supreme Court of the United States considered whether Title VII’s limitation on employers is only triggered when the prospective employee has notified the employer of the need for accommodation.

Abercrombie argued that a prospective employee must show the employer’s “actual knowledge” of the need for accommodation before arguing there was disparate treatment. The Court rejected this argument, instead saying that the prospective employee need only show that the employer’s hiring decision was motivated by the need for accommodation. “The disparate-treatment provision forbids employers to: (1) ‘fail … to hire’ an applicant (2) ‘because of’ (3) ‘such individual’s … religion’ (which includes his religious practice).”[1]

Because both parties concede that Elauf wore her headscarf as part of her “religious practice,” the Court only needed to evaluate if Abercrombie had failed to hire her “because of” this practice. The Court noted that Title VII does not have a knowledge requirement, unlike other antidiscrimination statutes. Instead, certain motives are prohibited irrespective of the employer’s knowledge.

Abercrombie argued that parties must raise failure to accommodate claims as disparate-impact, rather than disparate-treatment. The Court rejected this argument because Title VII defines “religion” to include both belief and practice. Thus, religious practices are protected and must be accommodated. Abercrombie also argued that neutral polices cannot qualify as “intentional discrimination.” However, as the Court pointed out, Title VII bestows upon employers an affirmative obligation to accommodate and not to refuse or fail to hire an employee because of his or her religious practice, rather than “mere neutrality with regard to religious practices.” Therefore, in an 8-1 decision, the Court reversed the Tenth Circuit’s grant of summary judgment, and remanded the case for a judgment in accord with its ruling.

[1]-slip op. at 4.

Decision Direction

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Supreme Courts decision expanded religious expression because it affirmed that a victim of discrimination need not show actual knowledge of the need for a religious accommodation. An applicant must only show that his or her need for an accommodation was a motivating factor in the employer’s decision not to hire the prospective employee, not that the employer actually knew of his or her need. This requires employers to accommodate all religions under Title VII of the Civil Rights Act of 1964.

Global Perspective

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence.

Tit. VII, codified at § 2000e.

• U.S., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)

Case Significance

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

United States Supreme Court cases are binding precedent upon all lower courts in the U.S.

Official Case Documents

Official case documents:.

• Supreme Court Opinion http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf

Amicus Briefs and Other Legal Authorities

• Amicus and Party Briefs on SCOTUSblog Docket http://www.scotusblog.com/case-files/cases/equal-employment-opportunity-commission-v-abercrombie-fitch-stores-inc/

Reports, Analysis, and News Articles:

• Simran Jeet Singh, A Muslim woman beat Abercrombie & Fitch, Wash. Post (June 1, 2015) http://www.washingtonpost.com/news/acts-of-faith/wp/2015/06/01/a-muslim-woman-beat-abercrombie-fitch-why-her-supreme-court-victory-is-a-win-for-all-americans/
• Ariane de Vogue, SCOTUS rules in favor of Muslim woman in suit against Abercrombie and Fitch, CNN (June 1, 2015) http://www.cnn.com/2015/06/01/politics/supreme-court-abercrombie-fitch-headscarf/
• Marianne Levine, Supreme Court rules against Abercrombie in hijab case, Politico (June 1, 2015) http://www.politico.com/story/2015/06/ambercrombie-fitch-hijab-case-supreme-court-ruling-118492.html
• Dave Jamieson, Supreme Court Rules Against Abercrombie & Fitch In Discrimination Case, Huffington Post (June 1, 2015) http://www.huffingtonpost.com/2015/06/01/supreme-court-abercrombie_n_7464534.html

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Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores

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Case Summary

Meet Samantha Elauf   

Samantha Elauf is a fashion blogger who takes her faith seriously. When she was 17, she sought a job at her local mall’s Abercrombie & Fitch. She knew the company dress code prohibited hats but had previously hired a Jewish employee who wore a yarmulke, so she never imagined that her headscarf might be an issue.

The store manager who interviewed Samantha liked her and recommended that she be hired. But when the district manager learned about Samantha’s headscarf, he made the store manager lower Samantha’s scores so she would appear unqualified.

Blatant Discrimination

Abercrombie does have a policy that prohibits employees from wearing hats, but they’ve made religious accommodations numerous times in the past. But rather than acknowledge that their district manager erred in refusing to accommodate Samantha, Abercrombie claims she should not be protected by the Civil Rights Act—which prohibits employment discrimination on the grounds of race, national origin, sex, and religion—because she never “explicitly” confirmed in her interview that she wore the scarf for religious reasons. In short, Abercrombie refused to hire Samantha because of her Muslim faith, and now they want a free pass for discrimination.

But anti-discrimination laws have been on the books for over fifty years. These are the same laws championed by Martin Luther King, Jr. that protect our civil rights from discrimination to this day. Abercrombie blatantly denied Samantha Elauf a job on the basis of her religion, and that should not go unchallenged.

In 2011, a federal district court judge ruled in Samantha’s favor, but in October 2013, the Tenth Circuit Court of Appeals reversed. On October 2, 2014, the United States Supreme Court agreed to hear Samantha’s case.

Protecting Religious Diversity

Becket became involved in this lawsuit for the first time at the Supreme Court. Becket champions religious diversity and defends Samantha’s right to bring her religious identity into her workplace. Religious expression is invaluable and inseparable from the human experience. No American should be forced to leave their faith at the door when they enter the workplace, especially when their religious activity has no impact on their employer’s business. Society will only benefit from protecting religious diversity everywhere, even at the mall.

On December 11, 2014 , Becket  filed an amicus brief  in this case. On February 25, 2015 , the Supreme Court heard oral argument in this case.

On June 1, 2015, the Supreme Court   ruled 8-1   in favor of religious job seekers. The Court held that a job seeker suing for religious discrimination only has to show that their need for a religious accommodation–such as wearing a headscarf–was a “motivating factor” in the employer’s decision not to hire. Even if the employer is not certain the applicant needs a religious accommodation, they can be liable if they suspect  there is a need for religious accommodation and reject the job applicant for that reason. This Supreme Court ruling requires that employers be mindful of the potential religious needs of job applicants and not let the possible need for a religious accommodation influence their employment decisions.

The Solicitor General and Department of Justice represented Samantha.

Case Information

Related cases, hosanna-tabor evangelical lutheran church and school v. eeoc, michele curay-cramer v. ursuline academy, singh v. carter.

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Supreme Court Looks At Abercrombie & Fitch's Hijab Discrimination Case

Samantha Elauf was not hired by the preppy retailer Abercrombie & Fitch because she wore a headscarf during her job interview, which the company said conflicted with its dress code. Pablo Martinez Monsivais/AP hide caption

Samantha Elauf was not hired by the preppy retailer Abercrombie & Fitch because she wore a headscarf during her job interview, which the company said conflicted with its dress code.

A closely watched case before the Supreme Court Wednesday could have big consequences for religious rights in the workplace. It involves Abercrombie & Fitch, the preppy, mall-based retailer, and a young Muslim woman who wore a headscarf to a job interview at the company seven years ago.

The case rests on Title VII of the Civil Rights Act , which makes it illegal to "fail or refuse to hire or to discharge any individual ... because of such individual's race, color, religion, sex, or national origin." How the court decides the case could force us to rethink the balance between religious rights and employer responsibility.

But let's back up a bit. Abercrombie famously employs a "Look Policy" that lays out in exacting detail what its "sales models" can wear when they're helping customers or folding clothes on the sales floor. ( Por ejemplo .) Back in 2008, Samantha Elauf, who was 17 at the time, went in for an interview for a sales model position in one of Abercrombie's locations in Oklahoma. The assistant manager who spoke with Elauf gave her solid marks on the three "competencies" required for the job of model at one of the stores: "outgoing and promotes diversity," "sophistication and aspiration" and "appearance and sense of style." Elauf said that at the end of her interview, the store's assistant manager told her that they would call her in a few days about orientation.

But she never got a call. When Elauf asked a friend who worked at the store why she wasn't hired, her friend told her that the higher-ups said that her headscarf violated the chain's Look Policy.

Here's what Heather Cooke, the assistant store manager who interviewed Elauf, said happened next. "I think it says in the handbook you can't wear hats. So I was unclear," she told the court . "That's why I asked the store manager and the district manager."

She went on:

Cooke: And I asked [the district manager], you know, she wears the headscarf for religious reasons, I believe. And he said, "You still can't hire her because someone can come in and paint themselves green and say they were doing it for religious reasons, and we can't hire them." And I told him that I believed that she was Muslim, and that was a recognized religion. And that she was wearing it for religious reasons. And I believe that we should hire her. Q: And what did he say? Cooke: He told me not to hire her.

Elauf and the Equal Employment Opportunity Commission brought a lawsuit, and a lower court sided with them. But Abercrombie won on appeal. As the case has wended its way through the court system, a few tricky questions have come to the fore: Did Abercrombie know that Elauf wore a headscarf for religious reasons, and does it matter? Was it Elauf's responsibility to bring up a connection between her faith and her headscarf during her interview, so that Abercrombie could figure out how to accommodate her? And how does all of this affect workplace discrimination laws for the rest of us?

Amy Howe of the indispensable SCOTUSblog laid out the arguments both sides are making to the Supreme Court Wednesday.

"Instead, [the EEOC] argues an employer can't refuse to hire someone based on its understanding of her religious practices if that understanding is correct — as it was in this case, when the assistant manager understood that Elauf was wearing the scarf because she is a Muslim, even if Elauf did not specifically say so. "Otherwise, the government complains, employers could easily get around the anti-discrimination laws as long as they aren't certain about an applicant's religious practices. And, it adds, an employer is often in a better position than a would-be employee to know its rules and whether they might conflict with an employee's religious practices."

Howe lays out Abercrombie's argument that putting the burden on employers is tricky:

"How, it asks, are employers supposed to know whether an applicant will want or need an exemption from their rules? This is particularly difficult, it notes, when the anti-discrimination laws protect all would-be applicants, even if their religions aren't well known or the members of that religion don't necessarily agree on what their faith requires. "Moreover, Abercrombie adds, an employer isn't supposed to ask a job applicant about her religion at all. Even the EEOC's earlier statements had previously acknowledged this difficulty, it points out, by requiring a job applicant to ask the employer to work with her to accommodate her religious beliefs."

It's worth noting that this isn't the first time Abercrombie's Look Policy has landed it in a headscarf-related lawsuit. In 2008, a woman named Halla Banafa claimed that a manager at Abercrombie's Milpitas, Calif., location didn't hire her because of her headscarf. And Umme-Hani Khan , who worked at one of the company's Hollister stores in San Francisco, was fired in 2010 after a district manager visiting her store ordered her to remove her hijab.

After Abercrombie settled both of those cases in 2013, it changed its Look Policy to allow employees to wear headscarves , but it's not clear how those settlements affect Elauf's case. We don't know when the Supreme Court's decision for the Elauf case will come down, but see the update below for a recap of what happened in the high court Wednesday.

Update at 8:20 p.m. ET: The Arguments

After hearing the arguments in court Wednesday, NPR's Nina Totenberg says several justices suggested that, during a job interview, the employer could say something like, "We have a no-beards policy, or a no-headscarf policy; would you have a problem with that?"

Here's her full report for All Things Considered on what the justices asked — and how the lawyers answered.

Legal Update

Jun 1, 2015

The Impact of the Supreme Court’s Ruling in EEOC v. Abercrombie & Fitch

On June 1, 2015, in a 8-1 ruling, the U.S. Supreme Court sided with the EEOC in the closely-watched religious discrimination case of EEOC v. Abercrombie & Fitch Stores, Inc.

Headline from the Majority Opinion

The Court started with the premise that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship.  The Court then framed the question presented as “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.” 

In Justice Scalia’s brief majority opinion, the Court rejected outright Abercrombie’s argument that an applicant cannot show disparate treatment without first showing that the employer had “actual knowledge” of the applicant’s need for accommodation.  Instead, the Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

The Court held that “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward:  An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The Underlying Facts

Seventeen year-old Samantha Elauf, a Muslim who wore a headscarf for religious reasons, applied for a sales floor position in an Abercrombie store in Oklahoma. At the job interview, to which she wore the headscarf, Ms. Elauf said nothing to Abercrombie about the fact that she was Muslim.  In the interview, she did not bring up the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the retailer’s “Look Policy.” However, her interviewer testified that she assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons. There was evidence that the headscarf influenced the company’s decision not to hire her.

The district court granted summary judgment for the EEOC.  The Tenth Circuit not only reversed that judgment, but granted summary judgment to Abercrombie.  The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that he or she has a religious practice that conflicts with a job requirement, because religion is an inherently individual matter, and he or she is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary.  The appeals court rejected the EEOC’s argument that the employer has a duty to attempt reasonable accommodation when the employer has notice from any source that the applicant or employee has a religious belief that conflicts with a job requirement.

The EEOC’s Position

At the Supreme Court, the EEOC argued that under the plain language of Title VII, an employer who refuses to hire an applicant on the basis of what it correctly understands to be a religious practice has violated the statute.  The EEOC urged the Court to reject a “rigid notice requirement,” reasoning that employers have superior knowledge of work rules, and may be able to identify religious conflicts not known to applicants.  The EEOC claimed that its approach would not require an employer to pry into the sensitive area of religious practice; instead, the agency suggested, an employer who suspected a possible religious conflict could simply advise the applicant of the relevant work rules and ask whether or not the applicant could comply.  The EEOC argued that under the Tenth Circuit’s approach, employers would be “free to discriminate” in cases where the employer’s awareness of a conflict between a work rule and an applicant’s religion came from a current employee, an applicant’s indirect statement suggesting a conflict, or the employer’s own accurate inference of religious practice.

Abercrombie’s Position

Abercrombie urged the high court to reaffirm what the retailer called the “established rule for over 40 years”:  that only actual knowledge of a religious conflict, rather than a mere guess, gives rise to Title VII liability.  Abercrombie reasoned that employees and applicants must tell employers if they need religious accommodations, eliminating any need for the employer “to speculate, guess, or probe.”  The retailer explained that the applicant or employee is best positioned to recognize the conflict, given the “multitude of religious beliefs and their uniquely personal and individual” nature, and will ordinarily also be made aware of the applicable work rules.  Abercrombie argued that neither Title VII nor any case precedent supported imposing a duty on employers who merely “suspect” a possible conflict with religion, a standard that the retailer called “invented, unadministrable and inequitable.”  Abercrombie reasoned that such a duty would leave employers in an unfair “Catch-22,” as they tried to avoid stereotyping, but also tried to avoid litigation by probing suspected religious views of applicants and employees. 

Oral Argument

At oral argument, most of the justices expressed skepticism or outright disapproval of Abercrombie’s position that only actual knowledge from the applicant of the religious belief was adequate to put the employer of notice of the duty to accommodate.  For example, Justice Breyer characterized the Tenth Circuit’s position this way:  “Employer, unless you receive direct, explicit notice that what she wants to wear is based on religion and she wants an accommodation, unless you receive direct, explicit notice from her, you’re home free to do what you want.” 

Interestingly, it was Justice Scalia, the author of the majority opinion, who appeared at argument to endorse the company’s position, stating that the Tenth Circuit’s rule “avoids all problems” by making clear that “if you want to sue me for denying you a job for a religious reason, the burden is on you to say, I’m wearing the headscarf for a religious reason.” 

The Court’s Analysis

In reaching its holding that an applicant need only show that his need for accommodation was a motivating factor in the employer’s decision, the Court relied primarily on an analysis of the text of Title VII.

The Court reasoned that Title VII’s disparate-treatment provision prohibits an employer from using an applicant’s religious practice as a motivating factor in failing to hire the applicant.  The Court noted that Title VII “does not impose a knowledge requirement,” and declined “to add words to the law.”  Instead, the Court reasoned that the statute’s “intentional discrimination provision prohibits certain motives ,” regardless of the employer’s knowledge. 

In distinguishing between motive and knowledge, the Court held that an employer who had actual knowledge of the applicant’s need for a religious accommodation, but did not have that as a motive for refusing to hire the applicant, would not violate Title VII.  By contrast, an employer whose motive in refusing to hire is the desire to avoid an accommodation -- even if based on “no more than an unsubstantiated suspicion that accommodation would be needed”-- may violate Title VII. 

The Court acknowledged that if the applicant requested an accommodation, or the employer was certain that the applicant followed a practice that would require accommodation, it may be easier to infer motive, but held that neither is required for liability

However, in an important footnote, the Court declined to reach the question of whether the motive requirement can be met without a showing that the “employer at least suspects that the practice in question is a religious practice.”  The Court reasoned that it need not decide that question since it was undisputed in this case that Abercrombie at least suspected that Ms. Elauf wore the hijab for religious reasons.

The Court’s opinion sidestepped Abercrombie’s concerns that without an actual knowledge requirement, employers will be forced to inquire about religion, or engage in religious stereotyping, which are practices that the EEOC’s own guidance cautions against.  Indeed, the Court offered an example that highlights the practical pitfalls for employers:  the employer who thinks, but does not know for certain, that an applicant may be an orthodox Jew who will observe the Sabbath and be unable to work on Saturday.  In that case, the Court held, if the applicant actually required the accommodation, and the employer’s desire to avoid it was a motivating factor in not hiring the employee, the employer would violate Title VII.

The Court also rejected Abercrombie’s defense that its “Look” policy was a neutral policy that could not be discriminatory; the Court emphasized that Title VII demands more than “mere neutrality with regard to religious practices.”  Finally, the Court rejected the retailer’s position that a claim based on failure to accommodate an applicant’s religious practice must be raised as a disparate-impact, rather than a disparate-treatment, claim. 

Concurrence by Justice Alito

Justice Alito filed a concurrence to disagree with the majority’s decision to reserve the question of whether the employer must know or suspect that the practice in question is a religious practice to trigger liability.  Justice Alito declared the “answer to this question . . . is obvious”:  an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.

Justice Alito also took issue with the majority’s opinion that it is a plaintiff’s burden to prove a failure to accommodate, opining that the inability to reasonably accommodate a religious practice is instead an available affirmative defense for the employer. 

Justice Thomas’ Dissent

Only Justice Thomas dissented from the majority opinion, holding that he would affirm the Tenth Circuit ruling.  Justice Thomas grounded his dissent on his view that “Mere application of a neutral policy cannot constitute intentional discrimination.”  Therefore, he reasoned, the EEOC could not advance a disparate-treatment claim in this case.  

There is still much wisdom in the time-honored advice to employers to avoid asking applicants about religion, or making assumptions based on stereotypes.  However, in light of this decision, an employer who has any reason to believe, or even suspect, that accommodation may be necessary—from any source—will need to consider engaging in an interactive process with the applicant.  Depending on the circumstances, that process may entail explaining to the applicant the relevant work rule, inquiring as to whether the applicant could comply with the rule or would require an accommodation, and analyzing whether any required accommodation is reasonable or would impose an undue hardship.  Employers would be well advised to consult counsel who specializes in this area for guidance on how to meet the obligations imposed by the Court’s ruling while minimizing the risk of other claims, as well as ensuring compliance with state or local religious discrimination laws, which can vary from federal law.  Finally, employers would also be wise to update their internal hiring practices training to ensure that hiring managers and interviewers are aware of best practices following the Supreme Court’s ruling

Case: Gonzalez v. Abercrombie & Fitch, Inc.

3:03-cv-02817 | u.s. district court for the northern district of california.

Filed Date: June 16, 2003

Closed Date: April 15, 2011

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Case Name: Gonzalez v. Abercrombie & Fitch, Inc.

Docket Number: 3:03-cv-02817-SI

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Case summary.

On June 16, 2003, employees filed a lawsuit in the United States District Court for the Northern District of California under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the California Fair Employment and Housing Act against Abercrombie & Fitch Stores, Inc. The plaintiffs, represented by private counsel, asked the court for injunctive relief, restoration of jobs or front pay benefits, back pay, exemplary and punitive damages, and attorneys' fees, alleging that Abercrombie & Fitch Management Co. had racially discriminated against potential and active employees. The plaintiffs also sought to represent a class of such employees. Specifically, they contended that Abercrombie was systematically discriminatory, subjective, and arbitrary with respect to hiring, firing, job assignment, compensation, promotion to in-store managerial positions, and conditions of employment. They alleged that Abercrombie enforced a nationwide corporate policy of preferring white employees for in-store sales and management positions, desirable job assignments, and favorable work schedules.

The EEOC, engaged in a concurrent civil action against Abercrombie, also concluded that Abercrombie was in violation of Title VII. According to the PACER docket, on November 12, 2004, the case was consolidated with two EEOC cases: EEOC v. Abercrombie and Fitch and West v. Abercrombie and Fitch. This expanded the complaint to include charges of discrimination against women as well as minorities.

The case was initially assigned to Judge Maria-Elena James, who then signed the order re-assigning the case to Judge Susan Illston for all further proceedings. The plaintiffs filed a first amended complaint on August 18, 2003, alleging the same substantial facts and claims but adding three named plaintiffs and three defendants. They filed a second amended complaint on January 9, 2004 to include Title VII claims. The third amended complaint, filed on May 17, 2004, added individual gender discrimination claims on behalf of two of the named plaintiffs.

The fourth amended complaint was filed on November 8, 2004. According to the fourth amended complaint, the plaintiffs sought to represent a class of people applying to and working within Abercrombie & Fitch who faced discrimination due to their race, color, and/or national origin since February 24, 1999.

After negotiations during court-ordered mediation, on November 16, 2004, the court certified a settlement class. And on April 14, 2005 the court (Judge Susan Illston) approved the consent decree. In this settlement agreement, Abercrombie was required to pay $40 million to class members, to pay attorney fees, and to implement extensive new policies and programs that promoted equal employment and diversity amongst employees, subject to the approval of a court-appointed monitor. In exchange, the plaintiffs agreed to release Abercrombie from all related claims. The parties stipulated that the consent decree did not constitute an admission of liability. The consent decree was to remain in effect for a period of six years until April 14, 2011. In addition, the parties agreed to the appointment of a Special Master in charge of dispute resolution and enforcement procedures under the consent decree.

On August 28, 2009, the plaintiffs initiated dispute resolution proceedings to assert that Abercrombie had failed to comply with its hiring obligations under the decree. The Special Master made a decision on April 15, 2011 that ordered Abercrombie to make an adverse impact review and assessment of its selection criteria, but denied the plaintiff’s request that Abercrombie implement alternative selection criteria and extend the consent decree. The plaintiffs challenged the Special Master’s decision. Judge Illston affirmed on June 23, 2011 and ordered Abercrombie to submit a report of the adverse impact review to the plaintiffs and the Court after completion. 2011 WL 2516621. As of April 2011, the period of the consent decree ended and the case is now closed

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Summary Authors

Emily Kuznick (4/8/2008)

Julia Florey (4/12/2019)

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5759436/parties/gonzalez-v-abercombie-fitch-co/

Alexander, Elizabeth A. (Tennessee)

Bolden, Victor A. (New York)

Brown, Willis E. (Illinois)

Cervantez, Eve Hedy (California)

Anderson, Sandra J. (Ohio)

Illston, Susan Yvonne (California)

Clobes, Bryan L (Pennsylvania)

Cohen, Hilary (Pennsylvania)

Dermody, Kelly M. (California)

Drieband, Eric S. (District of Columbia)

Duarte, Lisa (California)

D'Urso, Martin J. (Pennsylvania)

Fields, Cleo (Louisiana)

Forrester, Melody (Pennsylvania)

Gold, Sidney L. (Pennsylvania)

Goldstein, Barry L (California)

Gottesman, Zachary (Ohio)

Greenberg, Traci M. (Pennsylvania)

Keller, James (Ohio)

Kohn, Joseph C. (Pennsylvania)

Lee, Bill Lann (California)

Lerner, Jeffrey D. (Pennsylvania)

Liberto, Diana (Pennsylvania)

Nanda, Jyoti (California)

Ota, John (California)

Reams, Gwendolyn Young (District of Columbia)

Saenz, Thomas A. (California)

Sagafi, Jahan C (California)

Sekhon, Nirej S. (California)

Simons, Shaheena Ahmad (California)

Su, Julie A (California)

West-Faulcon, Kimberly (California)

Dexter, Douglas Evans (California)

Gochanour, Gregory M. (Illinois)

Kearney, Sandra A. (California)

Knueve, Mark A. (Ohio)

McKinney, Patrick R. (California)

Park, Anna Y. (California)

Ridgley, Thomas Brennan (Ohio)

Young, Douglas R. (California)

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Documents in the Clearinghouse

See docket on RECAP: https://www.courtlistener.com/docket/5759436/gonzalez-v-abercombie-fitch-co/

Last updated April 5, 2024, 3:04 a.m.

Case Details

State / Territory: California

Case Type(s):

Equal Employment

Special Collection(s):

Private Employment Class Actions

Multi-LexSum (in sample)

Filing Date: June 16, 2003

Closing Date: April 15, 2011

Case Ongoing: No

Plaintiff Description:

People applying to and working within Abercrombie & Fitch who faced discrimination due to their race, color, and/or national origin

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Unknown

Abercrombie & Fitch, Private Entity/Person

Defendant Type(s):

Causes of Action:

42 U.S.C. § 1981

Title VII (including PDA), 42 U.S.C. § 2000e

State Anti-Discrimination Law

Available Documents:

Trial Court Docket

Complaint (any)

Monetary Relief

Injunctive (or Injunctive-like) Relief

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Form of Settlement:

Court Approved Settlement or Consent Decree

Content of Injunction:

Discrimination Prohibition

Utilize objective job description

Utilize objective hiring/promotion criteria

Follow recruitment, hiring, or promotion protocols

Comply with advertising/recruiting requirements

Other requirements regarding hiring, promotion, retention

Post/Distribute Notice of Rights / EE Law

Provide antidiscrimination training

Implement complaint/dispute resolution process

Monitor/Master

Recordkeeping

Goals (e.g., for hiring, admissions)

Amount Defendant Pays: $40,000,000

Order Duration: 2005 - 2011

General/Misc.:

Pattern or Practice

Discrimination Area:

Conditions of Employment (including assignment, transfer, hours, working conditions, etc.)

Discharge / Constructive Discharge / Layoff

Disparate Treatment

Pay / Benefits

Discrimination Basis:

National origin discrimination

Race discrimination

Sex discrimination

Affected National Origin/Ethnicity(s):

Affected Race(s):

Asian/Pacific Islander

Affected Sex/Gender(s):

EEOC-centric:

Private Suit Related / Consolidated with EEOC Suit

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Lessons From the Rise and Fall of Abercrombie & Fitch

One of america's hottest brands flamed out almost as quickly as it heated up. now it wants to make a comeback..

The rise, fall, and rebirth of Abercrombie & Fitch is an arc that doubles as a business case study in management practices and brand reinvention. 

Abercrombie & Fitch was a darling American brand that dominated the closets of teens and young adults in the late 1990s and early 2000s, only to implode spectacularly. The brand reveled in its WASPiness: it marketed the all-American look through exclusivity, plastering images of shredded physiques across storefronts and shopping bags--all while hiring people who sported the same look. 

At one point, shirtless men (with washboard abs, of course) were positioned at storefronts to welcome patrons. The company sold sex in a palatable way: Wearing Abercrombie was a status symbol, which made it excusable for the brand to dominate high school hallways. 

This was all done under the direction of former Abercrombie CEO Mike Jeffries, the man responsible for giving the Abercrombie look a facelift. Founded in 1892, Abercrombie historically catered toward sportsmen and mostly sold outdoor and sporting goods. At one point, the brand even called Teddy Roosevelt and Ernest Hemingway customers. But when Jeffries assumed the role of CEO in 1992, he honed the brand's strategy on elitism and brought on others to help bring his vision to life.

Part of the brand's appeal is that it was both exclusive and aspirational: teenagers and college customers yearned to be part of the cool kid club, explains Dustin York, an associate professor of communication at Maryville University. "They don't want to stand out from the crowd necessarily," he says. "But they still want to be seen as a popular and successful high school or college students"

"Abercrombie really almost took that philosophy and basically put it on steroids," York adds.

But the momentum behind Abercrombie was overcome by other cultural forces as consumer preferences shifted and critics stood up to what appeared to be a blatantly racist and discriminatory ideology that propped up the brand. Amid growing criticism, Abercrombie flamed out, as recently portrayed in the new Netflix documentary White Hot: The Rise and Fall of Abercrombie & Fitch. 

Now operating under the leadership of Fran Horowitz, Abercrombie has changed its tune. The monocultural monotony that the brand once embraced has been replaced online by a presence that imbues inclusivity. Its website and social media feature models of different races and sizes, accompanied by celebratory posts about community and acceptance. 

Abercrombie certainly isn't the first fashion brand to flame out, but its quick fall offers some lessons worth remembering: 

Change is essential for survival

Change may be uncomfortable, but it's essential for companies that want to stay relevant. The good news is that companies that are weaker with ideation can always source that skill elsewhere. But ideation is imperative to longevity, especially amid a changing environment of consumer preferences. "If you don't like change, you'll like being irrelevant even less," says York.

How You Treat Employees Has Long-Term Implications

The hiring practices of Abercrombie were rooted in racism, elitism, and discrimination, according to the documentary. Recruiters operated under instructions to hire only good-looking people, which Abercrombie defined in a booklet that spelled out what was acceptable. While "classic hairstyles" presented on a white model were in the acceptable category, dreadlocks on a Black model fell into the unacceptable category.

Ultimately, how Abercrombie treated its employees and job candidates ultimately unraveled the fabric of its strong brand, says Kathy Gersch, a former Nordstrom vice president who is the chief commercial officer at Kotter, a business consulting firm.

Abercrombie was hit with multiple lawsuits over its discriminatory practices. A lawsuit filed in 2003 alleged discrimination against Asian, Black, and Hispanic employees. Abercrombie shied away from hiring non-White individuals to work on the sales floor and when it did, encouraged non-White employees to work other roles in the store that didn't interact with the public, according to the suit. The company eventually agreed to a $40 million settlement and a consent decree requiring it to implement diversity and inclusion measures in the business.

The company also lost a religious discrimination case filed by Samantha Elauf, a Muslim woman who claimed she wasn't hired by the brand because she wore a hijab. The Supreme Court eventually ruled in Elauf's favor in 2015 and found that Abercrombie violated civil rights law.

Think customer-first

One of the critical components behind Abercrombie's downfall was its intense focus on the brand, rather than the customers. Businesses that see quick growth as a result of cultural forces need to remember to keep their customers in mind, according to Carlos Castelán, the managing director of the Navio Group, a retail management consulting firm. Castelán cautions that businesses shouldn't get too far over their skis when they're scaling their company. "Businesses that lose sight of their customer and believe the brand itself is what's most powerful often erode over time," he explains. "Thinking customer-first rather than assuming the infallibility of the brand is the key lesson learned from the rise and fall of Abercrombie."

Brands help shape culture and society

Brands are important to society because they help people express themselves, but they also can foster a sense of community and social belonging. Take cult classics like Trader Joe's or Apple, both of which have devoted customer bases that continue to subscribe to new products the companies pump out. Apple, in its own way, influences current discourse (the prevalence of iMessage has led to lighthearted jabs around green text bubbles sent from non-Apple devices). Whatever brand people choose to wear acts like a billboard that shows who they are as a person and what values they have, according to York.

"Brands have the most impact in society: More than legislation, more than any president, more than any single influencer," says York, "large brands can move the needle on any topic." But, as in Abercrombie's case, not always in the right way. 

A refreshed look at leadership from the desk of CEO and chief content officer Stephanie Mehta

Privacy Policy

Carla Barrientos on What It Was Like to Sue Abercrombie & Fitch for Racial Discrimination

Carla Barrientos was 19 when she first started working at the Abercrombie & Fitch at the Valley Plaza Mall in Bakersfield, California. It was the early 2000s, and the brand’s moose-adorned clothing and suggestive marketing were the pinnacle of cool. But when Barrientos, reportedly the only Black employee working at the store, was unceremoniously given after-hours shifts and then fired, she joined a class-action lawsuit against the company. In June 2003, she, along with eight others, sued Abercrombie & Fitch for race and sex discrimination . The company settled and admitted no guilt, though it was required to pay $40 million and sign a consent decree to change its practices and promote diversity across the brand . However, A&F’s leadership stayed intact, including its controversial then-CEO Mike Jeffries . Now in Netflix’s new documentary White Hot: The Rise & Fall of Abercrombie & Fitch , Barrientos joins two other former plaintiffs to tell their side of the story. Below, she shares, in her own words, what happened all those years ago—and what she thinks of A&F’s newfound popularity.

The first time I went to Abercrombie & Fitch, I heard the store before I could see it. I was walking through the mall, shopping with my family, when I heard loud house music. B oom, boom . When we actually got to the store, I could smell Fierce cologne, and I saw the guys out front with no shirts on. That was my first dose of Abercrombie & Fitch.

Back then, for me, the brand represented cool. People noticed if you were wearing Abercrombie & Fitch. If you had an A&F shirt or jeans or even a belt, it was definitely not lost on anyone. It’s what everyone was wearing.

One day I was shopping at the store when I was approached about working there. I had my little interview where I sat on a couch, and they asked me odd questions, nothing that really had to do with working at a clothing store. I had a friend who worked there, so when I started, I would walk around and chat with my friends and the managers. It wasn’t the kind of job where, if I saw a friend and wanted to have a conversation, anyone would stop me. It was fun; I’d float around, straighten clothes here and there. But then after a few shifts like that, my job started to change. Suddenly, my shifts were starting later, and I’d mostly be working when the mall was closed. Then it changed where, if our mall closed at 8 p.m., my shift would start at 8 p.m. There were a lot of cleaning duties, like vacuuming, dusting, cleaning the windows. No one had told me they were going to make this change or why they were doing it. It wasn’t what I’d been hired to do, so I knew something was going on. I just didn’t know what.

One day, I was venting to my friend who worked there, and I told her, “I want more day shifts. I don’t have any.” I had gone to the manager and asked for more, and he had told me there weren’t any to give. But my friend told me that wasn’t true. She said they’d scheduled her for 30 hours in one week, even though she said it was too much. She told me, “Let’s do this: You take my day shift. I’ll take your night shift.” Easy. Same amount of hours, we were getting the same pay rate. So I went to the manager and told him my friend was willing to swap. But he flat out told me, “We cannot do that. The shift you’re assigned is the shift you’re assigned.” It didn’t make sense. When I told my friend what happened, she said, “It’s probably because you’re Black. You’re the only Black person who works here. During the day shift, it’s all white.”

“I was so confused. How do you work at a place, but you’re not getting any hours?”

I knew what she was saying was true, but I didn’t want to face that reality. But after I asked my manager about swapping shifts, everything changed. I wasn’t on the schedule at all anymore. I was so confused. How do you work at a place, but you’re not getting any hours? I was told to just keep checking back, but when I wasn’t on the schedule for a couple months, I knew I didn’t work there anymore.

There were times I’d doubt myself. What did I do wrong? Was I not persistent enough about what I needed to do to change as an employee? I’d never want to be seen as someone with a poor work ethic. I’d never want to leave a job in bad standing. It was difficult to realize there wasn’t anything I could’ve done. It wasn’t because of something I could change; it was about who I was as a Black person. It was really painful. When I heard Abercrombie say it had an “all-American look,” I saw myself in that. I saw other people of color. I saw other folks who don’t fit what Abercrombie thought was “all-American.” It was difficult trying to process that.

Not long after I was fired, my sister told me there was a lawsuit being filed against Abercrombie & Fitch. I called this number connected to the case and left a message, briefly sharing what happened to me. Within 10 minutes, I got a call back, and they asked to hear my story and let me know I wasn’t alone. Sometimes I’d thought, maybe this is an isolated situation. It’s just this store or just this area. It was validating to hear I wasn’t alone, but it was scary to think this was a systemic practice, that t his was how they operated. I never thought a company would go this far to be so exclusionary. I’d been working since I was 15 years old, and I’d never had a situation like that in the workplace, where I was discriminated against and then subsequently fired.

The lawsuit was a long process. We had to answer so many questions, and we were being gaslighted by Abercrombie & Fitch’s lawyers into thinking, this wasn’t discrimination. You just didn’t have the “look,” and the look didn’t have anything to do with you being Black. The look had to do with attractiveness. It was grueling.

“We were being gaslighted into thinking, oh no, this wasn’t discrimination. You just didn’t have the ‘look,’ and the look didn’t have anything to do with you being Black .”

Then, after it was all done, it was difficult to hear the company had admitted no wrongdoing. But I really believed they would follow the consent decree and make those changes as a company. I thought that it’d be positive from here on out. It was very disappointing to see it was not done, and the oversight was really lacking. Our case helped, but it didn’t change the company.

When change happens, it has to be real. That means dismantling the problem and bringing in totally different people. After our lawsuit, everyone who was in charge when all these terrible things happened continued to run the company. But I think there’s an ability for second chances. And now, it seems like in the past few years, the company really has changed. It’s become popular again, and for good reason; it’s very inclusive. I’ve visited the website, and it’s beautiful. I see lots of different people represented, people of all sizes, shapes, colors. When I worked there, Abercrombie & Fitch thrived on exclusivity. If you were cool, you could be here, and if you were not, you go. Now it really seems that everyone has a seat at the table. Everyone can be here, and everyone is celebrated for who they are. That’s not a negative. It’s not something that downgrades a company or a group; it enhances it.

Now I dress a lot differently than I did back when I was 19. But I’ve heard Abercrombie & Fitch has some good clothes. I haven’t been back to the store yet. But maybe next time I’m in a mall, I’ll go.

This interview has been edited and condensed for clarity.

Watch White Hot: The Rise & Fall of Abercrombie & Fitch on Netflix now.

Madison is the digital deputy editor at ELLE, where she also covers news, politics, and culture. If she’s not online, she’s probably napping or trying not to fall while rock climbing.

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EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015)

Abercrombie refused to hire Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit, alleging violation of Title VII of the Civil Rights Act of 1964, which prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the district court. The Tenth Circuit reversed, holding that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation. The Supreme Court reversed and remanded. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie “fail[ed] . . . to hire” her “because of ” “[her] religion” (including a religious practice), 42 U.S.C. 2000e–2(a)(1). Rather than imposing a knowledge standard, the statute prohibits certain motives, regardless of the state of the actor’s knowledge. An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII allows failure-to-accommodate challenges to be brought as disparate-treatment claims and gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.

Title VII requires employers to give favored treatment to religious practices, rather than requiring that they be treated no worse than other practices, and it gives rise to a cause of action under a disparate treatment theory when an employer fails to accommodate a religious practice.

SUPREME COURT OF THE UNITED STATES

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v . ABERCROMBIE & FITCH STORES, INC.

certiorari to the united states court of appeals for the tenth circuit

No. 14–86. Argued February 25, 2015—Decided June 1, 2015

Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation.

Held : To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives , regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices. Pp. 2–7.

731 F. 3d 1106, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in part and dissenting in part.

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‘Discrimination was their brand’: how Abercrombie & Fitch fell out of fashion

A revealing new Netflix documentary looks back on the highs of the fashion brand that dominated a generation before controversies dragged it down

I f you’re a millennial or have parented one, you know the look: advertisements with shirtless men, sculpted abs above low-cut jeans, a melange of thin and tan and young white bodies in minimal clothing. A store at the mall mostly obscured by heavy wooden blinders, music pulsing from within. Faded jeans and polo shirts in middle and high school, all featuring the ubiquitous moose.

White Hot: The Rise & Fall of Abercrombie & Fitch, a new Netflix documentary on the ubiquity of a once zeitgeist-y brand’s limited vision of “cool” and its culture of discrimination, is easy catnip for adults re-evaluating the influences of their youth. The brand of barely there denim miniskirts and graphic T-shirts was “part of the landscape of what I thought it meant to be a young person”, the film’s director, Alison Klayman, told the Guardian. (Klayman, a millennial, grew up in Philadelphia.) That’s true for many US adolescents in the late 90s through the 2000s, as Abercrombie stores anchored most mainstream malls across America, including my hometown middle school hangout in the suburbs of Cincinnati, Ohio.

Anytime Abercrombie comes up in conversation, “you immediately cut right to stories about people’s identity formation”, said Klayman. How much money you could or could not spend on clothing, body insecurities, memory imprints from hangouts at the mall. The overpowering smell of its cologne, Fierce, liberally applied to every surface. The messages one received on what was cool, on whose bodies met the right standards and whose did not.

As White Hot traces through a succinct and wide-ranging survey of the brand’s evolution and sales tactics, Abercrombie & Fitch, a company hinged on a vision of “preppy cool”, kept those messages pretty overt. To quote former CEO Mike Jeffries, who oversaw the brand’s precipitous rise in the late 90s and 2000s, in a now infamous interview from 2006: “We go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes], and they can’t belong. Are we exclusionary? Absolutely.”

Translation: a brand that was “white hot” not only in a financial sense, during a period of cultural ubiquity at the turn of the millennium, but also one that promoted, internally and externally, an exclusively white vision of beauty and style. That “all-American” is doing a lot. (The brand also famously refused to carry plus sizes for years, until after Jeffries departed in 2014.) As White Hot recounts through first-person interviews with several former staff members and cultural academics, this is a brand that once sold graphic tees branded with a racist depiction of Asian people and the words “two Wongs can make it white”. The brand that, in corporate materials, banned store staff from having dreadlocks, that ranked employees on appearance and skin tone, faced a class action racial discrimination case in the early 2000s and argued before the supreme court in 2015 that it was legal to deny employment to a woman with a headscarf because the religious garment violated its “look policy”. (The company lost in a 8-1 ruling.)

The 88-minute film offers its fair share of nostalgia bait – the opening sequence plays alongside Lit’s My Own Worst Enemy , and the signature scent is subject to plenty of good-natured ribbing – but focuses on taking scalpel to the company’s finely tuned, if now stale, image. “We wanted to focus on the everyday people who were affected by this company,” said Klayman.

Taking a more objective look at Abercrombie offered the opportunity to examine “abstract forces that impact us in life, things like beauty standards or structural racism”, and peek behind the curtain to see “exactly how this was a top-down system that relied on existing biases”.

That system, the film explains, was both a reflection of American culture and executed under the exacting watch of Jeffries, who took over as CEO in the early 1990s. The Abercrombie & Fitch name was established (as the shirts often boasted) in 1892 as an elite sportsman’s store (think a Teddy Roosevelt-esque gentleman hunter). It became the famous moose polo version after retail magnate and Jeffrey Epstein financier Les Wexner purchased it, moved its headquarters to Columbus, Ohio, and handed the reins to Jeffries.

It was Jeffries – a mercurial and reclusive figure who declined to participate in the film – who masterminded Abercrombie’s transformation into a clothing brand that united Calvin Klein sexy and Ralph Lauren Americana, sold at aspirational but accessible prices, marketed primarily to adolescents. Jeffries was, by numerous accounts from former corporate employees in the film, demanding, obsessed with youth and a micro-manager who emphasized appearance – as in, thinness, whiteness and Eurocentric features – at the company’s stores. In 2003, under Jeffries, the company faced a class action racial discrimination lawsuit from California which alleged that the company turned down minorities for sales positions, relegated them to stockrooms, and had their hours reduced when managers heard their looks weren’t Abercrombie enough. (Three of the class-action plaintiffs testify to such discrimination, and its emotional damage, in the film.) The company settled the lawsuit for $50m without admitting wrongdoing.

As part of the deal, Abercrombie & Fitch was subject to a consent decree and required to hire a diversity officer – Todd Corley, who appears in the film but defers from revealing his full opinions on the brand’s controversies. As White Hot explains, the consent decree had no enforcement mechanism, and though representation increased behind the scenes, the brand’s exclusionary vision under Jeffries continued. “Discrimination was their brand,” says Benjamin O’Keefe, who started a viral petition to boycott the brand in 2013 until they made their clothing for teens of all sizes. “They rooted themselves in discrimination at every single level.”

Jeffries certainly meets the “eccentric bad CEO” criteria now popular in TV shows, from WeCrashed to The Dropout to Super Pumped , and its depictions of millennial hustle culture (“Abercrombie was definitely doing work hard, play hard,” said Klayman.) But as titillating as it can be to focus on his oddities (his comically exaggerated plastic surgeries, for example), such focus can end up being “exculpatory”, said Klayman. “It kind of lets all of us, the collective, off the hook, not to mention the entire company that was facilitating this exclusionary vision for decades.

“It’s really convenient to put all the sins on Mike [Jeffries] and that era because he was so closely associated with the company’s rebirth in the 90s and early aughts,” she said. “And he definitely deserves real criticism, but it takes more than one guy to do what A&F did.”

Since Jeffries left in 2014, the company has changed tack. Under CEO Fran Horowitz, appointed in 2017, the company’s sales have rebounded from its mid-2010s nadir and a rebrand of its image to one of inclusivity, one more in line with the politics of Gen Z. “We run a company very focused on diversity and inclusion,” Horowitz has said . The company has developed a cult following for its Curve Love jeans in a range of sizes .

Their marketing now “puts them in line with what good business looks like today”, said Klayman. But “it’s important to talk about it holistically, and I don’t know how much they’ve truly reckoned with their past”. That reckoning, the film ultimately argues, goes beyond a corporate rebrand; the brand was not so much exceptional as illustrative. It was not the pioneer of exclusivity nor whiteness but, for a time, one of the best at profiting on it – which, to be fair, is pretty classically all-American.

White Hot: The Rise & Fall of Abercrombie & Fitch is now available on Netflix

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• How Abercrombie & Fitch got hot again

The once-troubled brand is now a favourite of millennials and gen-Zs alike

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F or many , 2023 was the year of the chip. Just ask anyone holding shares in Nvidia, whose stock rose by 246%. But it was also the year of the Sloane Pant. The popular tailored trouser helped send the shares of Abercrombie & Fitch, a 132-year-old clothing firm, up by 274% (see chart).

A decade ago Abercrombie’s brand was toxic. Now it is all the rage. The company has been through one of the fashion industry’s most remarkable glow-ups. Gone are the sexualised black-and-white catalogues and snooty staff. It still sells its famous “Fierce” cologne, but no longer pumps it through the air ducts. On August 28th the company lifted its forecast for revenue growth for the year to 13%. Although the market had hoped for more—its shares fell on the news—that growth would far outpace the 0-2% that McKinsey, a consulting firm, predicts for America’s fashion industry. Even after the stumble, Abercrombie’s shares are up by around 50% this year.

This is not Abercrombie’s first reinvention. In 1992 Mike Jeffries, a retail executive, was tasked with turning around what was then a faded sporting-goods seller, which he did by targeting teenagers with preppy, tight and low-cut clothing. In 2006 Mr Jeffries summed up its strategy in an interview: “Candidly, we go after the cool kids...Are we exclusionary? Absolutely.”

That attitude gradually came to grate on shoppers. Mr Jeffries refused to stock women’s sizes beyond a ten (a British 14)—and anything in black or purple. He also wrote a 29-page “Look Book” for employees. His obsession with policing appearance led to discrimination lawsuits from employees. The company fought one claim, by a Muslim employee whose hijab violated the company’s policy, all the way to America’s Supreme Court, where it lost.

Mr Jeffries also made the brand rigid. He crafted intricate back stories for its product lines: RUEHL was all about “the great American kid who moves to New York to be successful”; Gilly Hicks, a lingerie line, was named for a character who lived in an Australian manor house.

Whereas Mr Jeffries told consumers what they wanted, Fran Horowitz, who took over as chief executive in 2017 after 15 consecutive quarters of shrinking sales, is listening instead. She talks up Abercrombie’s “chase capabilities”—industry-speak for keeping inventory low and pouncing on trends. On her watch the company has made better use of data to understand what products to offer and which customers to target, notes Dana Tesley of Tesley Advisory Group, a consultancy.

Instead of going after teens, Abercrombie now targets 25- to 40-year-olds—many of whom might once have spent their babysitting money on its camisoles. But gen-Z customers love it, too, says Casey Lewis, who blogs about youth culture. “It’s just seen as…an ‘it’ brand,” she says. Young consumers may turn to fast-fashion firms such as Shein for the cheapest wares, but they look to Abercrombie for stylish clothes at reasonable prices. And leopard print—as seen on TikTok. Abercrombie’s spotted cardigan is selling fast.  ■

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This article appeared in the Business section of the print edition under the headline “Back in style”

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