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Retailer's 'look policy' scrutinized by U.S. Supreme Court

Abercrombie & Fitch is no stranger to navigating troubled waters over its notable "Look Policy" that dictates how its employees are expected to appear on the job. But it's never had to defend the position before the U.S. Supreme Court -- until now. The question those of us outside the halls of the high court are now left with is how will the justices rule?

It's likely that readers of this Fresno law firm blog already know what this post is about. It happens to involve a hiring discrimination claim by a young Muslim woman. But it also is reminiscent of how the Abercrombie & Fitch has dealt with several California women in similar circumstances in the past. In those cases, it settled out of court.

The latest matter came before the justices this week. The arguments made were over the claim of Samantha Elauf that the mall-based clothing retailer violated federal civil rights law when it refused to hire her. She says it was because she is Muslim.

According to the case record, the young woman interviewed for a position at an Oklahoma store in 2008. She got a sterling rating based on her interview. She also happened to be wearing a black hijab during the interview. Despite getting thumbs up from the assistant store manager, higher ups said no to her employment. They said it was because the scarf she wore violated the company's look policy.

Elauf sued citing federal law that says employers must make reasonable accommodations in instances like hers, as long as it doesn't create undue hardship. She won at trial, but an appeals court reversed the decision sending the matter to the high court.

During arguments this week, the attorney for the company defended the look policy and suggested that the problem is that Elauf didn't ask for accommodation or explain why she was wearing the scarf. Analysts watching the proceedings said the justices' questions indicated they think that the issue is one of religious bias. They noted that the company didn't ask if Elauf even knew about the look policy.

How the Supreme Court panel will ultimately rule no one can say. It's not even clear when a decision might come. But some analysts say a ruling in favor of the company could hurt efforts to counter workplace discrimination going forward.

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