In 2010, the federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Abercrombie & Fitch, claiming that the company refused to hire an applicant because the applicant wore a hijab – an Islamic religious head scarf.

Recently, a federal court denied Abercrombie’s motion asking for the case to be dismissed prior to trial.

The applicant, Halla Banafa, wore a hijab to her interview at the ‘abercrombie kids’ store in Milpitas, California. She received a passing score, but not a job offer. The EEOC claimed that she was not hired because Abercrombie felt the Hijab was inconsistent with the Abercrombie “look.” 

Abercrombie maintains a “look policy” that gives employees guidelines about what clothing to wear while working so the employees’ appearance is consistent with Abercrombie’s “preppy” style. Headwear is prohibited, but exceptions have been made for religious accommodation on a case-by-case basis.

According to the EEOC’s allegations, the interviewing manager (who had been on the job for only one month) asked Banafa during the interview if she was Muslim and also discussed the hijab, including whether Banafa was required to wear it. 

Banafa allegedly asked if the hijab would be a problem, and the interviewer said she would check with the district manager, but never did. The interviewing manager’s notes during the interview stated that Banafa did not have the “Abercrombie look.”

Abercrombie argued that the case should be dismissed before trial because it had a legitimate, non-discriminatory reason for the refusal to hire — Banafa was not available to work on Mondays through Thursdays. 

But the court found that there was at least enough evidence to allow the case to go to trial:

• Religion and the hijab came up during the interview and the “look policy” was discussed
• Three people were hired even though they scored lower than Banafa
• The “availability” explanation was contradicted by witnesses who said weekend workers were needed more than weekday workers
• The interviewing manager changed her story about the reason for refusal to hire — repeatedly  saying the decision was made because Banafa was not outgoing or confident, but four years later (in a deposition for the lawsuit) changing the reason for the decision to Banafa’s lack of availability

This isn’t the only lawsuit brought against Abercrombie for discriminating against workers or applicants who wear a hijab. Nearly two years ago, the EEOC filed a lawsuit against the clothing retailer, claiming that the company violated federal law when it fired a Muslim employee for wearing a hijab.

This past year, the California legislature passed AB 1964, which clarifies that the state Fair Employment and Housing Act covers a religious dress practice (such as a head covering or jewelry) or a religious grooming practice (such as a hair style or facial hair) as a belief or observance.

As an interesting side note, the same year that Banafa was denied the job she got married, moved to South Carolina, stopped wearing the hijab and got a job at Olive Garden.

Author: Gail Cecchettini Whaley

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