From Star Tribune, February 25, 2015
WASHINGTON — The Supreme Court is considering the employment discrimination claim of a Muslim woman who was turned down for a job by clothing retailer Abercrombie & Fitch after she showed up at her job interview wearing a black headscarf that conflicted with the company’s dress code.
The case being argued Wednesday explores when an employer must take steps to accommodate the religious beliefs of a worker or job applicant. Central to the case is that applicant Samantha Elauf never explicitly voiced her religious views or her need to wear a headscarf on the job, although the assistant store manager who interviewed her correctly assumed Elauf was a Muslim who dressed as she did for religious reasons.
Abercrombie & Fitch has since changed its policy on headscarves and has settled similar lawsuits elsewhere. But it has continued to fight Elauf’s claim at the Supreme Court.
Elauf was 17 when she interviewed for a “model” position, as the company calls its sales staff, at an Abercrombie Kids store in a shopping mall in Tulsa, Oklahoma, in 2008. She impressed the assistant store manager. But her application faltered over her headscarf, or hijab, because it conflicted with the company’s Look Policy, a code derived from Abercrombie’s focus on what it calls East Coast collegiate or preppy style.
At the time of the interview, the policy required employees to dress in a way that’s consistent with the clothing Abercrombie sells, and it prohibited wearing headscarves or anything in black. The company has said it changed its headscarf policy as early as 2010, but the ban on black clothing remains.
The woman who conducted the interview consulted with a more senior supervisor and then decided not to hire Elauf.
The federal Equal Employment Opportunity Commission filed suit on Elauf’s behalf, and a jury eventually awarded her $20,000.
But the federal appeals court in Denver threw out the award and concluded that Abercrombie & Fitch could not be held liable because Elauf never asked the company to relax its policy against headscarves.
Organizations of state and local governments are supporting the company out of concerns that, if the EEOC prevails, they would be subject to more discrimination claims as large employers.
Muslim, Christian and Jewish advocacy organizations have weighed in on Elauf’s side, as have gay-rights groups.
A legal brief on behalf of Orthodox Jews argues that requiring job applicants to voice the need for religion-related special treatment makes them less likely to be hired, with no reason given for the decision. Orthodox Jews who wear a skullcap, or yarmulke, or who may not work on Saturdays are routinely advised to withhold that information until after they are hired, lawyer Nathan Lewin said in his Supreme Court filing.