Supreme Court to hear Abercrombie headscarf case: What's at stake?

The United States Supreme Court is set to take up a case on Wednesday testing whether the clothing store Abercrombie & Fitch discriminated against a Muslim woman when it declined to hire her because she wore a headscarf that clashed with the company’s dress code.

The case is important because it could set a standard of when and how employers are expected to offer accommodations when workplace requirements applicable to everyone violate a particular employee’s religious practice.

Specifically, the case tests whether it is the responsibility of the employer to identify and accommodate any friction between job site rules and a worker’s religious faith, or whether it is the responsibility of the worker (or job applicant) to inform her employer of a conflict with a religious practice before an employer may be held liable for violating federal anti-discrimination laws.

The issue arises in the case of Samantha Elauf, who applied for a job at an Abercrombie Kids store in Tulsa, Okla., in 2008.

Ms. Elauf is a Muslim and had been wearing a headscarf for four years, since she was 13 years old.

Prior to applying for the job, Elauf asked a friend who then worked for Abercrombie whether she would be able to wear her headscarf at work.

The friend told Elauf that one Abercrombie store had permitted a Jewish employee to wear a white yarmulke. The friend also told Elauf that Abercrombie prohibited employees from wearing black, so she should not wear a black headscarf.

Despite the advice, Elauf arrived for her job interview wearing a black headscarf.

The assistant manager who conducted the interview noticed the headscarf and assumed that Elauf was Muslim. But she did not ask Elauf about her religious faith, or question the significance of the headscarf.

For her part, Elauf did not raise the issue of her headscarf and whether the company might make an exception to its dress code.

After the interview, the assistant manager contacted a district manager to discuss the headscarf issue. The district manager said the headscarf would violate the company’s dress code for its sales clerks – a policy that included a ban on wearing “caps” and a ban on wearing black.

The assistant manager would have offered Elauf a job, had she not been wearing the headscarf. Instead, Elauf was not offered a position.

Later, Elauf discovered that the reason she was not hired was because she wore a headscarf. She took her case to the Equal Employment Opportunity Commission. The agency filed a lawsuit against Abercrombie on Elauf’s behalf, charging that the company had engaged in unlawful religious discrimination by failing to offer an accommodation to Elauf.

A judge ruled that the company had enough information based on Elauf’s headscarf at the job interview to know a conflict existed that required a religious accommodation. A jury awarded Elauf $20,000 in compensatory damages.

The company appealed. A panel of the Denver-based 10th US Circuit Court of Appeals reversed. The appeals court said that an employer could not be punished on a mere assumption about a possible religious conflict.

Instead, the appeals court said, an employee must inform the employer of a religious conflict to put the employer on notice of a clash between an otherwise neutral company policy and a worker’s religious practice.

In his brief to the high court, Solicitor General Donald Verrilli said that Abercrombie decided not to hire Elauf because of her religious headscarf. That is discrimination based on religion and is prohibited under Title VII of the Civil Rights Act, he said.

It didn’t matter that Elauf did not inform the company of the religious significance of her headscarf or request a religious accommodation, the solicitor general said. It was enough that Abercrombie officials understood that her head covering was tied to her religion.

“Discrimination against a job applicant based on what the employer correctly understands to be the applicant’s religious practice is ... core prohibited conduct,” he wrote in his brief to the court.

“By enacting Title VII, Congress sought to eliminate decisionmaking based on particular aspects of identity [like religion] that Congress deemed categorically improper grounds for hiring decisions,” the solicitor general said.

“The court of appeals’ rule would undermine this objective, by permitting employers to choose job applicants based on one of the attributes that Congress sought to remove from hiring processes,” he said.

“While applicants have superior knowledge of their religious beliefs, employers have superior knowledge of work rules,” Verrilli said. “Employers who suspect a possible religious conflict can simply advise an applicant of the relevant work rules and ask whether (and why) the applicant would be unable to comply,” he said.

Abercrombie argues in its brief that the company’s required dress code for sales clerks was tied to Abercrombie’s strong brand identity and its strategy to use members of its sales staff as walking, in-store advertisements.

Maintaining a dress code that applies to all employees is not religious discrimination, the company argues. And employers cannot be held liable for violating anti-discrimination laws simply because the company correctly assumed that an aspect of a job applicant’s apparel is religiously significant.

“The EEOC says that Abercrombie … subjected Elauf to disparate treatment ‘because of’ her religion by subjecting her to the same policy as non-religious applicants or employees who wear head coverings for cultural, political, or aesthetic reasons,” Shay Dvoretzky wrote in the Abercrombie brief.

“This is a bizarre position,” Mr. Dvoretzky said. “Intentional discrimination occurs when a decision is made because of, not in spite of, the protected trait.”

It is not enough for company officials to have suspected Elauf wore her headscarf for religious reasons. To hold the company responsible for religious discrimination, there must be actual knowledge rather than a mere assumption, the lawyer said.

Someone must initiate the request for an accommodation, and employees or job applicants are usually better suited to do so, the Abercrombie brief says.

The Elauf case isn’t the first time Abercrombie has faced litigation over an employee seeking to wear a headscarf.

The company fired 19-year-old Hani Khan four months after she started working at a Hollister store (owned by Abercrombie) in San Mateo, Calif., in 2009. After a federal judge ruled in Ms. Khan’s favor, the company settled the case, paying Khan $48,000.

Abercrombie also agreed to pay Halla Banafa $23,000 to settle a claim that the company discriminated against her by refusing to hire her for a position in a Milpitas, Calif., Abercrombie Kids store in 2008. Ms. Banafa, then 18, wore a colorful headscarf to the job interview, but was rejected because the headscarf did not comply with the company’s dress code. 

The current case is EEOC v. Abercrombie & Fitch Stores, Inc. (14-86). A decision is expected by late June.