The Supreme Court seemed inclined Wednesday to agree with a Muslim woman who charged that retailer Abercrombie & Fitch violated antidiscrimination laws when it denied her a job because her head scarf conflicted with the company’s dress code.
The Equal Employment Opportunity Commission took up the case of Samantha Elauf, who was denied a job at one of the chain’s stores in Tulsa. Elauf, then 17, had worn a head scarf, or hijab, since she was 13.
At issue in the case was whether Elauf needed to explicitly volunteer during her interview that she wore the head scarf for religious reasons. Abercrombie said this action was necessary to trigger a federal law that prevents religious discrimination in hiring and requires employers to either offer an accommodation or say why it would impose a substantial burden.
Both liberal and conservative justices questioned Abercrombie lawyer Shay Dvoretzky about why the company could not outline its policies — in this case, the clothing retailer prohibited head coverings — and ask the applicant whether it would be impossible to comply.
The question, Justice Sonia Sotomayor said, would be as simple as, “You have a problem with that?”
Dvoretzky said that would be “asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice.”
He said the EEOC’s rule “would lead employers to treat people differently based on their religion, which is precisely the opposite of what Title VII wants,” referring to the anti-discrimination statute.
Justice Ruth Bader Ginsburg responded: “Title VII requires them to treat people who have religious practice differently. They don’t have to accommodate a baseball cap. They do have to accommodate a yarmulke.”
Justice Samuel A. Alito Jr. proposed a hypothetical that he said “is going to sound like a joke, but, you know, it’s not.”
He envisioned four job applicants: “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 hijab, the fourth is a Catholic nun in a habit.”
Alito continued, “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.’”
In Elauf’s case, the interviewer and a supervisor conferred and agreed they thought Elauf wore the hijab for religious reasons. They then concluded she could not meet the company’s “Look Policy,” which promotes an East Coast collegiate preppy style that prohibits caps and the color black.
Deputy Solicitor General Ian H. Gershengorn ran into trouble with some justices in trying to come up with a standard for how sure an employer would need to be that an applicant might need a religious accommodation if the information wasn’t volunteered.
But he said that was unnecessary here. “If the employer had not assumed that this was religious, had not believed it, they would have hired her,” Gershengorn said. “The default rule for ‘I’m not sure’ is hire.”
Only Justice Antonin Scalia voiced support for Abercrombie’s view of the case.
“You could avoid those hard questions — whether it’s understand, believe, suspect — by adopting the rule that the court of appeals adopted here, and that is, if you want to sue me for denying you a job for a religious reason, the burden is on you to say, ‘I’m wearing the head scarf for a religious reason, or I’m wearing the beard for a religious reason,’ ” Scalia said.
But Ginsburg said that Elauf was not even aware the company had a policy against head scarves.
“How could she ask for something when she didn’t know the employer had such a rule?” Ginsburg said.
Justice Elena Kagan seemed to agree with Gershengorn that the point of the law was to encourage a dialogue about whether religious accommodations were required, and that might involve “awkward” conversations.
Abercrombie’s policy, she said, seemed to be that simply not hiring certain people means it may avoid stereotypes.
“Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem?” she asked.
While religious and civil liberties groups backed Elauf, business groups supported Abercrombie.
But it was unclear why the company continued to fight Elauf’s claim. A jury awarded her $20,000 in damages after a district judge said her claim could go forward. The Denver-based U.S. Court of Appeals for the 10th Circuit reversed the decision.
But the company has since changed its policy on head scarves and settled similar lawsuits elsewhere.