Friday, September 13, 2013

EEOC Wins Summary Judgment in Religious Head Scarf Case

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We have written often on the banning of religious garb, whether in the workplace or otherwise.  See, e.g., our article on banning the wearing of burquas (here), our article on the push in France to ban the wearing in public of Muslim veils (here), and our article on the Third Circuit affirming a workplace head scarf ban (here).

In a recent development on this issue, the EEOC recently won a motion for summary judgment, in a religious discrimination case involving the wearing of a religious head scarf. See EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-cv-03162-YGR, 2013 U.S. Dist. LEXIS 125628 (N.D. Cal. Sept. 3, 2013).  The defendant in that case, Abercrombie & Fitch, Inc., operates retail stores across the country under the brand names Abercrombie & Fitch, Hollister Co., Abercrombie Kids, and Gilly Hicks. Id. at 4.  The case revolved around Abercrombie’s “Look Policy”, which sets forth certain rules regarding employee appearance, including a prohibition on wearing any form of headwear. Id. at *6-7.  All in-store Abercrombie employees were required to comply with the Look Policy, are to be informed of the Look Policy during the job interview process, and are required to sign an acknowledgement of the Look Policy when they are hired. Id. at *7.  The Look Policy also appears in Abercrombie’s handbook. Id.

Plaintiff, Ms. Umme-Hani Khan, a Muslim, believes that Islam requires her to wear a head scarf, also known as a hijab, when in public or in the presence of men who are not immediate family members. Id. at *7-8.  For more on the practice of wearing a hijab among Muslim women, see Kim Parker, Women, Islam, and Hijab, Postcolonial Studies @ Emory (May 2012) (available here); Islam’s Women: Jewels of Islam, The Virtues of Hijab (available here);, The Qur’an and Hijab (available here).  At the time Ms. Khan was hired, she had fully adopted the practice of wearing a head scarf on the above occasions, and she therefore wore a head scarf when she interviewed for the position. Id. at *8.  She acknowledged the Look Policy, and agreed to abide by it. Id. 

Ms. Khan worked for Abercrombie from October 2009 to February 2010, all the time wearing her head scarf. Id. at *9.  Local supervisors allowed her to wear her head scarf so long as it matched company colors (the Look Policy was a part of Abercrombie’s marketing strategy, aimed at “communicating the spirit of” the store’s brand). Id. at *6-7, *9.  Her store managers never informed her that she was not complying with the Look Policy. Id. at *9.

In February of 2010, a District Manager made a regularly scheduled visit to the store at which Ms. Khan worked, noted that Ms. Khan was not in compliance with the Look Policy, informed Ms. Khan of same a few days later, and asked Ms. Khan if she could take her head scarf off. Id. at *10.  Ms. Khan responded that she could not take the head scarf off because it was part of her religion.  Within weeks, Abercrombie suspended and then fired Ms. Khan, solely due to her non-compliance with the Look Policy. Id. at *10-11.  Eleven days after the termination, Abercrombie offered Ms. Khan an unconditional offer of reinstatement with the accommodation of being allowed to wear her head scarf to work, but Ms. Khan declined the offer of reinstatement. Id. at *11.

At the time that Ms. Khan filed her charge of discrimination with the EEOC, the EEOC was involved in two other cases against Abercrombie in connection with the wearing of headscarves – one case alleging a refusal to hire an applicant for an associate position because she wore a hijab, and the other alleging a refusal to hire a woman as a model because she wore a hijab. Id. at *11-12.  The EEOC found reasonable cause to believe that Abercrombie had discriminated against Ms. Khan in violation of Title VII. Id. at *13.  The EEOC unsuccessfully attempted to jointly settle all three cases with Abercrombie.  Id. at *12-13, *15. The EEOC, as a part of a conciliation effort, attempted to get Abercrombie to agree to modify its policies to allow the wearing of head scarves by all employees, but Abercrombie rejected that proposal, as the EEOC’s proposed policy modification did not allow for a case-by-case consideration of whether employees should be permitted to wear head scarves. Id. at *13-14.  After continued unsuccessful efforts at conciliation and settlement, EEOC filed suit on behalf of Ms. Khan as Plaintiff-Intervenor. Id. at *15-16.

In litigation, Abercrombie raised a number of affirmative defenses, including that the EEOC failed to engage in conciliation in good faith, Id. at *19, that Abercrombie’s Look Policy is protected commercial free speech, Id. at *24, that accommodating Ms. Khan’s religious beliefs would constitute an undue hardship, Id., and that punitive damages and injunctive relief were not warranted, Id. at *46-47, *50.  Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the plaintiffs’ motion for summary judgment (and denied Abercrombie’s cross-motion) as to all of those issues, as well as to the issue of liability. Id. at *23-24, *41, *45, *50, *56.

Abercrombie did not dispute that the plaintiffs had established a prima facie case of unlawful discrimination. Id. at *29.  As to liability, setting aside the procedural issues about good faith conciliation and whether punitive and injunctive relief was available, Abercrombie based its defense solely on its undue hardship and commercial free speech defenses.

Abercrombie’s undue hardship defense was that the Look Policy was “key to Abercrombie’s success and/or that deviations from the policy ‘detract from the in-store experience and negatively affect [the] brand.’” Id. at 32.  Judge Gonzalez Rogers rejected that argument, as it was based only on the testimony of Abercrombie employees as to their “beliefs” based on “personal experience” about the effects of the Look Policy, and not on any hard data.  Id. at *35-37.  The Judge therefore found the employees’ “beliefs” to be “speculative and purely subjective in nature,” and that “[a] reasonable jury could not conclude that Abercrombie would be unduly burdened by allowing Khan to continuing [sic] wearing her hijab as she had been prior to February 2010.”  Id. at *38, *41.

Abercrombie’s commercial free speech defense, which Judge Gonzalez Rogers characterized as a “novel argument,” was that “the store associates should be classified as ‘living advertisements’ for [Abercrombie’s] brand and therefore their appearance is protected as commercial free speech.” Id. at *42.  The standard for a finding of commercial free speech was succinctly summarized by the Court as follows:

Commercial speech is that ‘which does 'no more than propose a commercial transaction.’’ Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976)). The test for determining whether commercial speech exists is set forth in Bolger v. Youngs Drug Products Corp. There, the Supreme Court held that commercial speech can be found where the speech: (i) is an advertisement; (ii) refers to a particular product; and (iii) the speaker has an economic motivation for the speech. 463 U.S. 60, 66-67, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983) (holding that the ‘combination of all these characteristics’ provided ‘strong support’ that the pamphlets at issue were properly characterized as commercial speech). Commercial speech is entitled to constitutional protection, albeit a lesser degree of protection than is afforded to other forms of speech. See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).
Id. at *41-42.  The Court concluded that Abercrombie had not provided any authority to support its “novel argument”, and concluded that Abercrombie had failed in any event to satisfy the above standard to establish commercial free speech. Id. at *43. The Court based this decision primarily on the fact that the employees in question did much more than just purportedly “representing the brand,” given that “the employees’ responsibilities consist of ensuring shipments are complete, folding clothing, and placing/replacing clothing on the floor,” duties which were “primarily performed in the stockroom.” Id. at *44.  And, while the Look Policy restricted what employees could and could not wear, it did not require employees to wear only Abercrombie’s products. Id.

After also dispensing with Abercrombie’s argument about good faith conciliation, Judge Gonzalez Rogers granted the plaintiffs’ motion for summary judgment as to liability, “[t]here being no viable defense” thereto. Id. at *45.

As to Abercrombie’s arguments about the plaintiffs’ entitlement to injunctive relief, the Court explained the applicable standard as follows:

‘Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, unless the employer proves it is unlikely to repeat the practice.’ E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (citations omitted). ‘[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.’ County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). However, an injunction may be unnecessary where there is no reasonable expectation that the alleged violation will recur and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ County of Los Angeles, 440 U.S. at 631. To obtain an injunction, the ‘necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.’ W. T. Grant Co., 345 U.S. at 633.
Id. at *46. The plaintiffs sought an “injunction enjoining Abercrombie from engaging in practices which discriminate on the basis of religion, and an order that Abercrombie institute policies, practices, and programs providing employment opportunities for employees of all religions and which ‘eradicate’ effects of past unlawful practices”. Id. at *45.  Abercrombie opposed such an injunction, arguing that (a) Abercrombie had offered Ms. Khan unconditional reinstatement with the accommodation of wearing her hijab; (b) there was no threat of future, recurring violations, as Abercrombie had made “significant policy changes” since the events in question; and (c) the injunction was overbroad. Id. at *46-47.  The Court denied Abercrombie’s summary judgment motion on this issue, finding triable issues as to whether the changes in Abercrombie’s policies “completely and irrevocably eradicated the effects of the alleged violation.” Id. at *49.  The Court pointed to evidence that Abercrombie had changed its policies due to the instant litigation rather than because of the law, and on the fact that several of Abercrombie’s witnesses continued to believe that wearing religious headwear harmed Abercrombie’s image and brand. Id. at *49-50.  As to Abercrombie’s argument as to the breadth of the contemplated injunction, Judge Gonzalez Rogers concluded that the record was not sufficiently developed to determine that issue. Id. at *50.

Finally, the Court rejected Abercrombie’s summary judgment motion regarding the availability of punitive damages, finding that “[r]easonable jurors could determine that by offering Khan one option – to remove her hijab despite her religious beliefs – Abercrombie acted with malice, reckless indifference or in the face of a perceived risk that its actions violated federal law.” Id. at *55.  As to Abercrombie’s anti-discrimination policies, the Court concluded that triable issues existed as to whether those policies were implemented in good faith, and that there was insufficient information in the record to determine whether deterrence or punishment would be necessary. Id. at *56.

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