Culture Institutions

Supreme Court wrestles with accommodating religious faith on the job

Samantha Elauf outside of the Supreme Court on Wednesday (Feb. 25, 2015). Photo courtesy of Emily Hardman, Becket Fund
Samantha Elauf outside of the Supreme Court on Wednesday (Feb. 25, 2015). Photo courtesy of Emily Hardman, Becket Fund

Samantha Elauf outside of the Supreme Court on Wednesday (Feb. 25, 2015). Photo courtesy of Emily Hardman, Becket Fund

WASHINGTON (RNS) Samantha Elauf was a teenager who loved clothes and applied to work in an Abercrombie & Fitch Kids store in her native Tulsa, Okla., in 2008. But Elauf, a Muslim, also happens to wear a headscarf. So she didn’t get the job.

No one – not even Abercrombie & Fitch — disputes that her hijab cost her the job offer. And the law, Title VII of the Civil Rights Act of 1964, states that an employer can’t deny employment based on an worker’s religious practice, unless accommodating it would prove terribly burdensome.

At the time, Abercrombie had a “no hats” policy for its sales associates. When the U.S. Supreme Court heard Elauf’s case Wednesday (Feb. 25), Justice Ruth Bader Ginsburg summed up the religious exemption required of the company: “Title VII doesn’t require accommodating baseball caps, but it does require accommodating religious practice.”

So why did this case make it all the way to the Supreme Court?

Elauf, though she won in a federal district court in 2011, lost in a federal appeals court in 2013. At the 10th U.S. Circuit Court of Appeals in Denver, the company’s argument — that it shouldn’t have had to give a religious accommodation because Elauf never asked for one — found traction.

Do we really want companies delving into an applicant’s religious practice in order to determine whether the person might want an accommodation, Abercrombie lawyer Shay Dvoretzky asked the justices on Wednesday. “This will inevitably lead employers to stereotype,” he said.

It may lead to some “awkward conversations,” agreed Justice Elena Kagan. But the alternative is what happened to Elauf: a prospective employee gets no opportunity to discuss an accommodation. She is simply not given the chance, or the job.

“Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worse problem?” Kagan asked Dvoretzky.

The question the justices need to decide in this case, EEOC v. Abercrombie & Fitch Stores Inc., is whether an employer is guilty of religious discrimination only if a job applicant has expressly asked for an accommodation. The U.S. Equal Employment Opportunity Commission, which enforces federal employment discrimination laws, has represented Elauf as her case has risen through the courts.

Like Kagan, other justices signaled discomfort with Abercrombie’s stance that it was not liable because Elauf was not more vocal. Justice Clarence Thomas, who chaired the EEOC from 1982 to 1990, maintained his usual silence during oral arguments.

“Many members of the court seemed sympathetic to the EEOC’s position and Ms. Elauf,” said Daniel Mach, director of the American Civil Liberties Union’s Program on Freedom of Religion and Belief, who attended Wednesday’s argument. “It’s a clear case of religious discrimination, and I’m optimistic that the court will agree.”

Groups that filed legal briefs on behalf of Elauf include the Becket Fund for Religious Liberty, the American Jewish Committee and the Council on American-Islamic Relations. Major business groups sided with Abercrombie, including the U.S. Chamber of Commerce.

Some legal observers said the 10th Circuit, in ruling for Abercrombie, realized that it does not make sense to make companies responsible for figuring out prospective employees’ religious needs.

“As an employer, you should not ask applicants what their religion is or make assumptions as to what their religion might be,” said Laura O’Donnell, who represents companies in the employment practice of Texas firm Haynes and Boone. “EEOC guidelines make that very clear.”

But this case raises a deeper question that goes beyond whether the law requires an employee to give “explicit notice” that she will need a religious accommodation, said Rick Garnett, a University of Notre Dame law professor who studies First Amendment issues.

“We should not want our law to reflect a presumption that religion is entirely ‘private,’ that the workplace is a faith-free zone and that the default position in the public sphere is to be, in terms of religious faith, a blank slate,” Garnett said.

Elauf, now 24, made a statement on the Supreme Court steps Wednesday morning, read by an EEOC spokeswoman.

“No one had ever told me that I could not wear a headscarf and sell clothing,” she said. “I am not only standing up for myself, but for all people who wish to adhere to their faith while at work.”


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.)


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  • If we lived in a sensible world, this young woman would not be wasting her time and everyone’s patience in what amounts to a bullying exercise and Ruth Bader Ginsburg, if she wished to determine the hiring practices of a retail establishment, would have to start one herself.

  • If we lived in a sensible world there would be no religion, and this young woman would have no need to waste her time and everyone’s patience as no one would believe they had to wear anything, or do anything just to please the concept of a god.

  • No, if we lived in a sensible world, people who fancy themselves devoted to truth through observation would have a more circumscribed sense of what they do know and what they do not know.

  • She had chosen to apply for a sales position, dealing directly with the customers.
    As such she would be a public representative of the company. I think the company should have the digression to set dress codes for those employees. On the other hand, public policy is set by Congress, whether wise or no.

  • “an employer can’t deny employment based on an worker’s religious practice, unless accommodating it would prove terribly burdensome.”

    This is completely fair.
    She should never have been denied her job. Abercrombie and Fitch are being discriminatory and UNFAIR.

    Religious freedom requires everyone to be put up with everybody else’s religion – or non-religion – as the case may be. It is your bad, A&F.

  • How many times are the Christianists going to try to “project” their own bullying of the many Americans they hate and fear onto their intended victims? No one is fooled by that standard lie.

  • Wrong! Freedom means that we do NOT have to put up with anybody’s religion, especially since it is the religions which are discriminatory. Our democratic freedoms attempt to give equal treatment to all equally.
    Absolutely no consideration should be given at all to any religion.

  • Brien,

    Nobody is asking you to “put up” with religion.
    Your responsibility as an American citizen is to allow people their lawful right to practice their religion as long as it does not violate your rights.

    Looking at someone walking by in a Muslim scarf or seeing someone praying is not a violation of your rights.

    ONLY IF they try to force you to PARTICIPATE in religion that is different – that is when they cross the line and you can tell them to stick their religion where the moon don’t shine.

  • Bravo, Atheist Max
    Yet again, Amax proves that atheism can survive alongside religious people and that one does not need religion to know what is moral. It is funny that Christians say that “man needs God for morality”, while skipping over the fact that God is a man made thing itself. LOL.

  • People devoted to real truth welcome new observations through scientific discovery that leads them to new truths, not an abandonment of truth for the sake of subscribing to ancient beliefs that were never founded in reality.

  • Aww the poor wittle multinational retail chain which pulls in billions of dollars a year is being picked on by a teenage girl. How tough for them. 😉

  • You mean my business is successful and I have many outlets, therefore Ruth Bader Ginsburg should have a franchise to set my hiring practices. Got it.

  • CarrotCakeMan, the distinction between a private party and a state actor seems lost on you, characteristic of the very young who cannot distinguish between authority in domestic settings, markets, and the public square. The managers of Abercrombie & Twink outlets govern their stores. They cannot issue injunctions binding parties in geographic jurisdictions with hundreds of thousands of people in them.

  • I can’t wait for the new world or cleansed earth from God which is ahead of us so that we won’t have to worry about any problems like this!

  • I mean you are a hysterical nasty minded person pushing a ridiculous argument. If the people at A&F were sensible, we would not have this story.

  • Places of worship are secular, places of work are not.

    And while I respect Judge Ruth Bader Ginsburg, the language of Title VII does not explicitly require accommodating religious ‘practice’ specifically at the place of work. Rather it is “an unlawful employment practice … to discriminate against any individual .. because of such individual’s ..religion”.