Case against clothing store centers on question of whether job applicant must ask for religious accommodation for hijab

The U.S. Supreme Court indicated Wednesday that it will side with a Muslim woman denied a job at an Abercrombie & Fitch Co. clothing store in Oklahoma because she wore a hijab, or headscarf, for religious reasons.

Nine justices heard a one-hour argument as part of an appeal brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that sued the company on behalf of Samantha Elauf.

Elauf was 17 when she was interviewed for a “model” position, as the company calls its sales staff. She impressed the assistant store manager, but her application was rejected over her headscarf that apparently contradicted the company’s “Look Policy,” centered on an East Coast preppy style.

The dress code prohibited caps or hats, and Abercrombie & Fitch had argued that was the reason Elauf was not hired — not religious discrimination. Abercrombie has since changed its policy on headscarves. But it maintains a ban on black clothing.

The justices on Wednesday aggressively questioned Abercrombie’s lawyer on the premise that an employer must take steps to accommodate the religious beliefs of a job applicant or worker.

“What the Supreme Court is now confronting is how courts should sort out the duty to show that respect: must the job applicant specifically make her private religious needs known up front, or must the company make its policies clear, so that an applicant knows what is required and can ask for an accommodation,” said a post on the SCOTUS blog.

Elauf did not explain that she was wearing the hijab for religious reasons during the interview for a sales job at the store in 2008 in the Woodland Hills Mall in Tulsa, Oklahoma.

But Justice Samuel Alito said there would be no reason to deny her employment unless the company assumed she would wear the scarf to work every day because of her religion.

“You assumed she was going to do this every day. And the only reason she would do it every day was because she had a religious reason,” Alito said. Advocates echoed Alito’s sentiments and called for the high court to reject a lower court’s ruling.

“The Supreme Court should reject the 10th Circuit explicit notice rule because it places unreasonable burdens on individual job candidates and employees who outwardly display their religion,” Jenifer Wicks, litigation director of civil rights for Council on American Islamic Relations (CAIR), a Muslim advocacy group, told Al Jazeera in an emailed statement.

When the EEOC initially brought the lawsuit, a federal judge in Tulsa had accepted the view that the store’s management should have told Elauf about the dress code and given her the opportunity to seek accommodation.

But the U.S. Court of Appeals for the 10th Circuit disagreed, ruling in a split decision that Title VII — which says employers should not routinely ask potential employees about their religion because it could be intimidating — requires employers have explicit, verbal notice of a job applicant’s religious needs that may conflict with company policy, the SCOTUS blog said.

The EEOC then took the case to the Supreme Court, and the justices granted a review last October to consider whether the 10th Circuit had added a new duty for job applicants that was incompatible with Title VII, according to the SCOTUS blog. The EECO had argued in the petition that the notice requirement would undermine the law’s protection.

Muslim, Christian and Jewish advocacy groups have taken Elauf’s side in the case, as have gay and civil rights groups, including the American Civil Liberties Union (ACLU). In December, the ACLU, together with a broad coalition of religious groups, filed a friend-of-the-court brief in support of Elauf.

The ACLU wrote in a blog post at the time: “Open your eyes, Abercrombie. Discrimination is not in style.”