U.S. Supreme Court justices must determine whether Abercrombie & Fitch’s decision not to hire a Tulsan be cause she wore a headscarf was religious discrimination.
WASHINGTON — The people who ran the Abercrombie & Fitch Kids store at a Tulsa mall in 2008 were inclined to hire Samantha Elauf.
The 17-year-old got high marks in her first interview for a sales position on such criteria as “appearance and sense of style” and “outgoing and promotes diversity.”
Part of Elauf’s appearance, however, was the headscarf she wore because she’s a Muslim. The store employees in charge of hiring thought it might conflict with the company’s “Look Policy” so they called the district manager for advice. He told them not to hire her.
The company has been in a fight with the U.S. government ever since.
It’s almost over, though. The U.S. Supreme Court is scheduled to hear oral arguments Wednesday and render a decision some time this summer on whether Elauf was a victim of religious discrimination.
“This is an extremely important issue that affects many people of different faiths,’’ said Gene Schaerr, a Washington, D.C., attorney representing 15 religious and civil rights organizations that filed a friend-of-the-court brief backing Elauf.
The Equal Employment Opportunity Commission sued the clothing chain in federal court in Tulsa and won — Elauf was later awarded $20,000 in compensatory damages — but the 10th U.S. Circuit Court of Appeals reversed, ruling that the Abercrombie store didn’t discriminate because Elauf never told the company she wore the hijab for religious reasons and would have to wear it at work.
That, the court said, was in keeping with the government’s general policy that businesses shouldn’t ask job applicants about their religious beliefs.
It falls now to the justices to decide how explicit a job applicant or employee must be in expressing the need for a religious “accommodation” — or just whose responsibility it is.
Religious groups back Elauf
The government and many religious groups are on the same side in this case.
The Becket Fund — the influential law firm that represented Hobby Lobby and several nonprofit organizations in successful challenges against the federal contraceptive mandate — contends that Abercrombie “blatantly” denied Elauf a job based on her religion.
Eric Baxter, senior counsel for the Becket Fund, said the argument that job applicants had to make explicit statements about their religion “is both an absurd and dangerous precedent for all people of faith seeking employment.
“Justice may be blind, but that doesn’t mean employers can cover their eyes. A job applicant does not have to bring a ‘Look at me — I am religious’ sign to an interview just to keep her civil rights.”
Civil Rights Act
The case is not a constitutional one. It involves a title of the Civil Rights Act that prohibits employers from discriminating based on sex, race, color, religion and some other protected traits.
There are two types of discrimination under the law: intentional and the kind in which a neutral policy that applies to all employees has the effect of burdening someone. But a different type of case has evolved as well — ones in which an employer is accused of not “accommodating” a religious practice.
In the case of Abercrombie’s “Look Policy,” all headwear was banned. Even though some of the stores sold caps, employees weren’t supposed to wear them. Before Elauf’s situation, the clothing chain had previously made accommodations — in fact, even for headscarves and yarmulkes.
In written arguments to the Supreme Court, Abercrombie says Elauf never explained the headscarf and the hiring manager only assumed it was for religious reasons.
The company argues that the Equal Employment Opportunity Commission’s own manual says: “The employee is obligated to explain the religious nature of the belief or practice at issue, and cannot assume that the employer will already know or understand it.”
In order for a company to be liable for discrimination, there should be “actual knowledge of a religious conflict, not a mere guess,” Abercrombie says.