The Supreme Court ruled 8-1 on Monday that retailer Abercrombie & Fitch may have violated workplace discrimination law when it turned down a Muslim job applicant because she wore a hijab, even though her religious beliefs never came up in the interview.
Samantha Elauf, the job seeker at the center of the case, applied for a sales position at an Abercrombie children’s store in Oklahoma in 2008. Despite her high marks in the interview, Elauf didn’t land the job because her headscarf ran afoul of Abercrombie’s employee “look policy,” which bars hats and promotes the retailer’s preppy brand. Elauf sued with the help of the U.S. Equal Employment Opportunity Commission.
Civil rights law requires that employers accommodate workers’ religious beliefs in the workplace, and forbids them from firing or not hiring someone because of those beliefs. But Abercrombie argued that it couldn’t have known to make such an accommodation because Elauf, who was 17 at the time, never requested one.
The majority of justices didn’t buy that argument, reversing an earlier appeals ruling in Abercrombie’s favor. They said that whether or not Abercrombie had firm knowledge of Elauf’s need for an accommodation was not relevant — only that her headscarf was a “motivating factor” in their decision not to hire her. (In Elauf’s case, an Abercrombie manager had correctly assumed that Elauf was Muslim, and that she would regularly wear the hijab on the job.)
“Motive and knowledge are separate concepts,” Justice Antonin Scalia wrote for the majority. “[A]n employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”
The ruling sends Elauf’s case back to the lower court for further consideration. Justice Clarence Thomas was the lone dissent, penning an opinion that partially concurred with the majority.
Abercrombie’s lawyers argued that a ruling in favor of Elauf would pressure companies to ask or make assumptions about job seekers’ religious beliefs — a dicey proposition, they said, since employers aren’t supposed to inquire about a worker’s religion. But the EEOC said that a job applicant like Elauf shouldn’t have to bear the full burden of raising the possibility of a religious accommodation, especially since the employer would know best whether there may be a conflict with company policy.
Justice Samuel Alito, a member of the court’s conservative wing, signaled his leaning on the case during oral arguments in February, when he raised a hypothetical situation that, by his own admission, sounded “like a joke.”
“So the first is a Sikh man wearing a turban. The second is a Hasidic man wearing a hat. The third is a Muslim woman wearing a niqab. The fourth is a Catholic nun in a habit,” Alito said. “Now, do you think … that those people have to say, ‘We just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement’?”
Alito said there were ways for an employer to address the issue without directly asking a job applicant about his or her religion. In the hypothetical case of someone who appears to be Middle Eastern and who wears a long beard, he asked, “Why can’t the employers just simply say, ‘We have a “look policy” that doesn’t permit beards. Can you comply with that policy?'”
Abercrombie has been sued at least two other times over headscarves — once by an applicant who, like Elauf, said she was denied a job because of hers, and once by an employee who lost her job after being ordered to remove hers. Abercrombie settled both of those cases and then changed its policy to allow for headscarves, though it continued to defend its actions in the Elauf case.
In briefs filed with the court, Abercrombie had the backing of the U.S. Chamber of Commerce, while Elauf drew support from civil, religious and gay rights groups.