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Supreme Court questions Abercrombie & Fitch in employment case involving a headscarf

Samantha Elauf stood outside the Supreme Court in Washington on Wednesday. The Muslim teenager was denied a job at Abercrombie & Fitch after she showed up at her employment interview wearing a black headscarf that conflicted with the company’s dress code.
Samantha Elauf stood outside the Supreme Court in Washington on Wednesday. The Muslim teenager was denied a job at Abercrombie & Fitch after she showed up at her employment interview wearing a black headscarf that conflicted with the company’s dress code. The Associated Press

Supreme Court justices on Wednesday expressed support for a Muslim teenager denied a job at Abercrombie & Fitch after she showed up at her employment interview wearing a black headscarf that conflicted with the company’s dress code.

The discrimination case 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 in Tulsa, Okla., 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.

Hearing arguments Wednesday, several justices questioned a Denver federal appeals court ruling that sided with Abercrombie. The lower court said Elauf needed to explicitly tell the company she required a religious exemption from its dress code to work at the store.

Justice Ruth Bader Ginsburg questioned the company’s view, saying Elauf had no reason to think there was anything about her dress that was offensive to the company.

“How could she ask for something when she didn’t know the employer had such a rule?” Ginsburg said.

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 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 is 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.

Justice Samuel Alito asked why businesses with employee dress policies such as Abercrombie can’t just explain them to applicants and ask whether they have a problem. Should an applicant wearing obviously religious dress, such as a Sikh turban, have to take the initiative to explain the garb is more than a “fashion statement,” he asked.

Justice Elena Kagan said Abercrombie doesn’t want to have what might be an “awkward conversation” with applicants.

“The alternative to that rule is a rule where Abercrombie just gets to say, ‘We’re going to stereotype people and prevent them from getting jobs,’” she said. “We’ll never have the awkward conversation because we’re just going to cut these people out and make sure that they never become Abercrombie employees.”

Organizations of state and local governments are supporting the company out of concerns that if the EEOC prevailed, 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.

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