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Supreme Court Appears to Sympathize With Woman Rejected for Abercrombie Job Due to Headscarf

Allegory of Justice
A much-watched case regarding religious and employment discrimination made its way before the Supreme Court Feb. 25, with most commentators saying the court appears to be sympathizing with the would-be employee in question, Samantha Elauf.

In 2008, when she was 17, Elauf applied for a job at clothing retailer Abercrombie and Fitch, and says that she was denied employment because her headscarf, worn for religious reasons, conflicted with the company’s “look policy.”

The Equal Employment Opportunity Commission brought a suit on Elauf’s behalf, claiming that Abercrombie violated Title VII of the Civil Rights Act, which dictates that no employer may “fail or refuse to hire or to discharge any individual … because of such individual’s race, color, religion, sex, or national origin.” The case was successful in the lower courts, but was overturned on appeal before ending up at the nation’s highest court.
Connection Between Appearance and Religion
Abercrombie has claimed that it could not have asked Elauf about her ability to comply with the company dress code, which prohibits head coverings, without asking about her religion. Abercrombie lawyer Shay Dvoretzky said that would be “asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice,” which is opposed to the intent of Title VII.

But the justices seemed to reject this argument, saying it would have been easy to ask her if she would have any problems complying with the company policy.

They also said it was disingenuous to imply the company didn’t know that her attire was religiously motivated. “Maybe she’s just having a bad hair day, so she comes in with a headscarf, but she doesn’t have any religious reason for doing it. Would you reject her for that? No,” said Justice Samuel Alito. “The reason that she was rejected was because you assumed she was going to do this every day, and the only reason why she would do it every day is because she had a religious reason.”
Asking for Religious Accommodations
One of the reasons the case is being so closely watched is because it could set a precedent for whether employers must extend reasonable accommodations to employees based on their religious practices regardless of whether they ask for such accommodation.

Abercrombie is arguing that the burden should have been on Elauf to specifically ask for a religion-based exception. But only Justice Antonin Scalia voiced support for that view.

In order to make Elauf’s claim that she was discriminated against for her religion legitimate, he said, she would have had to explicitly say that she could not comply with the policy due to religious concerns.

It is not yet known when the court will make a final decision on the case.

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