Culture Politics

Supreme Court to hear case of a headscarf that cost a Muslim teen a job

A pedestrian walks past shoppers lined up to wait for the opening of an Abercrombie & Fitch store in New York on November 26, 2013. Photo courtesy of REUTERS/Lucas Jackson *Editors: This photo may only be republished with RNS-SCOTUS-HEADSCARF, originally transmitted on February 19, 2015.

WASHINGTON (RNS) The Supreme Court on Wednesday (Feb. 25) will hear the case of a young Muslim woman who says the Abercrombie & Fitch clothing store illegally denied her a job because she wears a hijab in keeping with her faith.

A pedestrian walks past shoppers lined up to wait for the opening of an Abercrombie & Fitch store in New York on November 26, 2013. Photo courtesy of REUTERS/Lucas Jackson  *Editors: This photo may only be republished with RNS-SCOTUS-HEADSCARF, originally transmitted on February 19, 2015.

A pedestrian walks past shoppers lined up to wait for the opening of an Abercrombie & Fitch store in New York on Nov. 26, 2013. Photo courtesy of REUTERS/Lucas Jackson
*Editors: This photo may only be republished with RNS-SCOTUS-HEADSCARF, originally transmitted on Feb. 19, 2015.

The store argues that company policy used to forbid floor “models” — the company’s word for store employees who interact with customers — from wearing caps, and that it was up to Samantha Elauf, 17 at the time of her interview, to make it clear that she needed a religious accommodation.

A federal district court agreed with Elauf and her lawyers in the case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., which originated in Tulsa, Okla. But the Denver-based 10th U.S. Circuit Court of Appeals sided with Abercrombie.

Now the Supreme Court, which in recent years has generally sided with those who say that their religious rights have been trampled, will hear Elauf’s appeal.

Her attorneys say she is protected by the Civil Rights Act of 1964, which prohibits employment discrimination on the grounds of race, national origin, sex and religion.

If the high court agrees with the 10th Circuit, it would “permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence if the applicant does not know that she must expressly state her need for a religious accommodation, even when she is unaware of employer policies that would require it,” said William Burgess, senior staff attorney at the Council on American-Islamic Relations, which filed a brief in the case.

On the store’s side, the Cato Institute, a Washington-based libertarian think tank, argued in its brief that it must be up to the prospective employee to raise the issue of a religious accommodation.

“Any other rule not only foments tremendous awkwardness in the employer-employee relationship, but puts the employer in the untenable position of having to inquire into certain sensitive personal information even as such queries themselves are legally
disfavored,” the Cato brief states.

The court is expected to decide the case in the spring or early summer.

KRE/MG END MARKOE

About the author

Lauren Markoe

Lauren Markoe has been a national reporter for RNS since 2011. Previously she covered government and politics as a daily reporter at the Charlotte Observer and The State (Columbia, S.C.)

22 Comments

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  • A & F is a fashion store. Customers shopping for fashionable clothes will not gravitate to someone wrapped in a hijab. This sounds like a set up to me. I see no discrimination here.

  • What do you do when you hire someone? You discriminate between said applicant and all other applicants. What the ass-law does is substitute some judge’s preferences for the merchant’s preferences. Mightn’t we suggest that if the judge wants to run a haberdashery in a particular way, he open his own haberdashery.

  • This would also fall into the slippery slope conundrum – where would one limit her choice of dress? At the hijab or the burka….?

  • The rules are generally much easier than anyone is willing to own up to.

    If the limitations or inability to allow the accommodation has some kind of secular and rational justification you don’t have to allow it.

    I find it ironic that a “libertarian” think tank is more concerned with the vague ill defined liberties of a corporation than the exercise of explicitly referenced civil liberties of an individual.

  • This Muslim woman must win her right to wear her Hajib.
    Good for her that she is fighting for her rights.

    In the USA we have freedom of religion. This is a right we must all
    defend for each other.

    I hope she wins and sues Abercrombie and Fitch.

    Of course, I also hope that she becomes an Atheist someday – by her OWN choice – IF and when she wants to. That is what is great about America.

  • @Brien,

    A simple scarf Hajib is not a difficult thing for a retail merchant to deal with. If the religious rights to not cause undue harm on the operation of a store it should be lawful.

    We are not talking about a government worker or a policeman who represents the government and is required to wear a certain uniform; a situation which must be explicitly non-religious.

  • What was she wearing during the interview? Did the interviewer go over the rules of employee dress including head coverings or the lack thereof.
    A hijab can be as simple as a scarf or a head covering not the entire coverage of everything except the eyes, hands and feet.

  • Max,
    My opinion, the Supreme Court will decide in her favor as they did in the case of the Muslim prison inmate on his short beard.

  • Ok I’m a hijab wearing Muslim and a libertarian. Suppose she wants to work at a strip club. Should she win her right to wear hijab there as well? Don’t employers have a right to hire the look that represents them?

  • See my post above:

    “If the limitations or inability to allow the accommodation has some kind of secular and rational justification you don’t have to allow it.”

    This is a pretty easy rule to follow now lets see how that works out with your silly hypothetical:

    Are there a secular and rational reason to ban a hijab for a stripper?
    -Your job is to take your clothes off
    -Hair whipping is a major component of both pole and lap dancing

    That being said, there is a market for hijab-based nudity. Evidently it is a REALLY popular form of porn on various Muslim based internet sources.
    [Thank you Google]
    So therefore, such an accommodation would not be OK as a stripper. However, when she is off duty or is serving drinks, it is reasonable.

  • It all comes down to whether the company could cough up a rational excuse for not making the accommodation.

  • My first question would be did she wear the scarf in the interview process? It sounds like she was hired then told she couldn’t wear it. But if the employer is even remotely smart he would have said that during the interview IF she wore it. So maybe the employer did not know an accommodation needed to be met because she did not have it on when she was hired. If that is the case than her beliefs should be in question because you aren’t allowed to go without the scarf in public even interviews. Now if she did wear it then the employer is wrong and he should have made adjustmemts for her. He would have been able to see the need for religious accommodations. I’m not saying the employers right or the victims right. But I think we need a full story here to know where to side.

  • Do you also think Hobby Lobby has the freedom of religion to refuse birth control insurance to its employees?

  • This is a very good comment and as a muslim who supports the first amendment in its entirety, I really do think you have a good point. But however, if she chose to cover her hair with a hat or a beanie or something fashionable, should she be fired later or not hired if she wore it to the interview? Whatever the supreme court decides is the correct answer to this question, will determine how they rule. I’m gonna guess, Abercrombie and Fitch is going to pay 7-8 figures for violation of 1st amendment and out right racism/islamaphobia. Peace.

  • Yes, she wore the hijab during the interview but it wasn’t discussed. The interviewer initially gave her a high score, but after consulting with a supervisor who did ask about the hijab, she was given low “appearance” marks and was not hired, even though A&F assumed she was wearing it for religious reasons. The question in the case is whether the plaintiff was required to ask for a religious accomodation at the time of the interview.

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