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3rd Time Not a Charm for Abercrombie; Loses 3rd Hijab Case

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By William Peacock, Esq. on September 10, 2013 2:25 PM

Umme-Hani Khan worked at Abercrombie & Fitch's Hollister-branded store in San Mateo, California, for approximately five months. She was an "impact associate," which meant her primary duties were in the stockroom. According to a press release by the Equal Employment Opportunity Commission, she was initially asked to match the colors of her hijab, or headscarf, to Hollister colors, which she did. In February 2010, however, she was fired for violating the company's "Look Policy," after the company changed course and ordered her to stop wearing her religiously required headscarf, which she refused to do.

As District Court Judge Yvonne Gonzalez Rogers succinctly stated, "It is undisputed that Khan was terminated 'for non-compliance with the company's Look Policy.' Khan's only violation of the Look Policy was the headscarf."

Religious discrimination, or undue hardship for the store? The retailer's lawyers argued that the Look Policy is the "very heart of [its] business model" and that exceptions would harm the store. But the court noted that Abercrombie failed to show any evidence, besides unsubstantiated opinion testimony, that making a religious exemption for a color-matched headscarf would harm the company's bottom line.

It's always nice when the court's opinions match common sense, isn't it?

This is an employee who works, primarily, in the stock room. Heck, even if she worked on the sales floor, the company should be on the side of tolerance, not on the side of hypothetical customers who would be scared away by purchasing clothing from a teenager wearing a religious head covering.

Then again, this is the company that in addition to dismissing fat people, also settled a racial discrimination lawsuit a few years back for $50 million. And this isn't the company's first hijab-related lawsuit.

The Equal Employment Opportunity Commission also brought suit against Abercrombie and Fitch on behalf of another Bay Area employee in 2010, when it refused to hire a young woman for a stock room position because of her headscarf. That case is currently pending, though the plaintiff was granted partial summary judgment earlier this year.

Interestingly enough, that judge noted that the case might be different had the employee worked as a model, rather than as a stock room employee.

We wouldn't be shocked to see Abercrombie appeal both cases, once they are finalized, to the Ninth Circuit. An even earlier case in Oklahoma is currently pending on appeal in the 10th Circuit in Denver, reports The Wall Street Journal.

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