By Bruce Buchanan, Siskind Susser P. C.

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The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached an agreement with Abercrombie & Fitch Inc. (Abercrombie), a clothing retailer headquartered in Columbus, Ohio. The agreement resolves a complaint filed with OSC, claiming that the company discriminated against a non-U.S. citizen in violation of the Immigration and Nationality Act (INA).
The investigation found that Abercrombie required a non-U.S. citizen, but not similarly-situated U.S. citizens, to produce her permanent resident card (green card) for the purpose of verifying her employment eligibility. The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship status or national origin when verifying an employee’s employment eligibility.

Under the settlement agreement, Abercrombie will pay $3,661 in back pay to the complainant and a civil penalty of $1100 to the United States; establish a back pay fund of $153,932 to compensate other individuals who may have been harmed; undergo training on the anti-discrimination provision of the INA; revise their employment policies and training materials; and be subject to monitoring of its employment eligibility verification practices for two years.
This settlement agreement is one more legal problem for Abercrombie. Earlier this year, the U.S. Supreme Court decision found against Abercrombie concerning whether it needed to provide a religious accommodation. In that case, a job applicant wore a hijab to a job interview, but did not mention her religion or request an exception to Abercrombie’s dress code. The Court found that a job applicant need only demonstrate that a prospective employer’s desire to avoid providing a religious accommodation was a motivating factor in its decision not to hire, not that the employer actually knew of the need for an accommodation. In an immigration case several years ago, Abercrombie settled a case with Immigration and Customs Enforcement (ICE) for $1 million due to essentially paperwork violations in their electronic I-9 system.