EEOC and OFCCP win big in recent cases

 Two unusual big wins have been buzzing around the news in the last few days--a settlement between the EEOC and Abercrombie and Fitch, and an order by an administrative law judge at the Department of Labor to pay almost $2.2 million to African American job seekers who the judge found had been discriminated against.

The EEOC settlement involved two cases brought against Abercrombie and Fitch, challenging the application of its "look policy" to muslim teens who wore hijabs for religious reasons. From the press release, 

Clothing retailer Abercrombie & Fitch has agreed to pay $71,000 and to change its policies to settle two separate religious discrimination lawsuits on behalf of Muslim teens wearing hijabs (religious headscarves), the U.S. Equal Employment Opportunity Commission (EEOC) announced today.  This settlement follows last week's ruling finding Abercrombie liable for religious discrimination in one case, and an April 2013 ruling dismissing its undue hardship claims in the other suit.  

In an order issued Sept. 3, U.S. District Judge Yvonne Gonzalez Rogers found Abercrombie liable for religious discrimination when it fired a Muslim teenager from her "impact associate" (stockroom employee) position solely for refusing to remove her hijab.  Abercrombie had claimed that the hijab violated its "Look Policy" and permitting employees to wear it would harm the Abercrombie brand.  Observing that Umme-Hani Khan had been interviewed and hired while wearing the hijab and had worked without incident at Abercrombie's Hollister store at the Hillsdale Shopping Center in San Mateo, Calif., for four months, the court dismissed Abercrombie's argument as "not linked to any credible evidence."  Khan intervened in the EEOC's lawsuit and was represented by the Legal Aid Society/Employment Law Center and the Council on American-Islamic Relations.

Similarly, in an April 2013 ruling on the EEOC's lawsuit on behalf of Halla Banafa, U.S. Judge Edward J. Davila also dismissed Abercrombie's undue-hardship claims on summary judgment, citing the "dearth of proof" linking store performance or the Abercrombie brand image to "Look Policy" compliance.  The EEOC lawsuit alleged that the 18-year old Muslim applicant was asked about her headscarf and religion during her interview, then denied a job as an "impact associate" in Abercrombie's Great Mall outlet in Milpitas, Calif., for discriminatory reasons. 

In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011  that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. That case is pending on appeal in the U.S. Court of Appeals for the 10th Circuit.

The OFCCP's action began in 1993 with a routine compliance review that culminated in a complaint filed by the Solicitor of Labor in 1997 for violation of the Executive Order that prohibits discrimination by federal contractors. From that press release:

U.S. Department of Labor Administrative Law Judge Linda S. Chapman has ordered Bank of America Corp. to pay 1,147 African American job applicants $ 2,181,593 in back wages and interest for race-based hiring discrimination at the company's Charlotte facility. In an earlier ruling, the judge determined that the bank applied unfair and inconsistent selection criteria resulting in the rejection of qualified African American applicants for teller and entry-level clerical and administrative positions. The ruling represents a major victory in a case that has spanned nearly two decades, during which Bank of America repeatedly challenged the authority of the department's Office of Federal Contract Compliance Programs. Bank of America is a federally-insured financial institution that provides a variety services and products, making it a federal contractor under the purview of OFCCP's regulatory requirements.

Both of these cases are noteworthy because of the systemic nature of the relief ultimately provided. Abercrombie is changing its look policy, and Bank of America has learned that it cannot systematically disadvantage African American applicants. Both too show the importance of agency enforcement to accomplish what individual actions might not. And the OFCCP case shows how employer reporting and agency compliance review (something the EEOC too can engage in) can be used to ensure that employers are following federal law.

MM