Supreme Court boosts workers who claim religious bias

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 Feb. 25, 2015. Photo courtesy of Emily Hardman, Becket Fund

WASHINGTON The Supreme Court ruled Monday (June 1) that companies cannot discriminate against job applicants or employees for religious reasons, even if an accommodation is not requested.

The decision was a defeat for preppy clothier Abercrombie & Fitch, which refused to hire a Muslim girl in 2008 because she was wearing a black hijab, or head scarf. It could benefit job applicants and employees who need time off for religious observances as well as those who adhere to strict dress codes.

Justice Antonin Scalia wrote the 8-1 decision for a near-unanimous court, save for Justice Clarence Thomas’ dissent. Scalia reasoned that even if the clothier did not know  Samantha Elauf’s religion, it still motivated the decision to deny her employment.

“The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward,” Scalia wrote. “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The ruling continued the high court’s practice of providing legal protection for religious beliefs and customs. In recent years, it has allowed employers with religious objections to avoid covering some forms of birth control, upheld the practice of opening local government meetings with a prayer, and allowed a Muslim inmate to keep his beard in prison.

That history put Abercrombie & Fitch’s “look policy” for sales associates on thin ice. During oral arguments in February, both liberal and conservative justices refused to believe the company’s insistence that Samantha Elauf, 17 at the time, was turned down simply because of the head scarf, not her faith.

In his dissent, however, Thomas defended the company, claiming that its “neutral look policy” cannot constitute intentional discrimination.

The court’s decision could have implications for religious minorities’ job opportunities and companies’ hiring practices. Muslim women who cover their heads encounter some of the biggest problems. Businesses, on the other hand, claim that requiring them to cater to all religious minorities’ observances is an “undue hardship.”

Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, color, religion, sex or national origin. The ban on religious discrimination includes observances and practices, unless the employer cannot reasonably accommodate them.

The clothier’s “look policy” affects the type of clothing, jewelry and makeup its sales representatives can wear, including atop their heads. But it often grants exceptions upon request, including for head scarves.

The circumstances in Elauf’s case actually posed a narrow question: Must the job applicant request a religious accommodation, or should the employer recognize the need for it? During her job interview, Elauf never brought up her religion, and her interviewer never asked.

The federal government maintained that Abercrombie discriminated “when it intentionally refused to hire Elauf because of her hijab, after inferring correctly that Elauf wore the hijab for religious reasons.”

After the Sept. 11, 2001, terrorist attacks, the Equal Employment Opportunity Commission — which sued Abercrombie on Elauf’s behalf — saw a 250 percent increase in religion-based discrimination charges involving Muslims. In 2012, more than 20 percent of its 3,800 religious discrimination claims were filed by Muslims.

Abercrombie & Fitch, backed by the U.S. Chamber of Commerce and other business groups, contended that employers should not be forced to inquire about a job applicant’s religion for fear of appearing to discriminate.

The company settled a lawsuit brought by black, Hispanic and Asian-American college students for $40 million a decade ago and pledged to diversify its hiring, promotion and marketing practices. Since then, it says, it has gone from fewer than 10 percent non-white sales associates to more than 50 percent.

It issued a statement following the Supreme Court’s decision noting “significant enhancements to our store associate policies, including the replacement of the ‘look policy’ with a new dress code that allows associates to be more individualistic; changed our hiring practices to not consider attractiveness; and changed store associates’ titles from ‘model’ to ‘brand representative’ to align with their new customer focus.”

“This case relates to events occurring in 2008,” the company said. “A&F has a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs.”

(Richard Wolf writes for USA Today.)

About the author

Richard Wolf


Click here to post a comment

  • This is an excellent Supreme Court decision.

    Everyone must have freedom of religion
    and employers are bound by the law to make reasonable accommodations
    to all employees.
    Wearing the scarf is a completely reasonable accommodation.

  • Hooters is to the Abercrombie headscarf case as “swastika cakes” were to the anti-gay marriage baker/florist/photographer cases. No man will ever take a waiter job at Hooters. Not bc they have purportedly tried- they have and those cases have settled. It seems like Hooters is willing to pay to never have to test its claim that large- breasted women are a bonafide occupational requirement. And no man actually wants the job bc he’d get zero tips, which is how waiters make money.

  • I’m surprised that no one in the media has commented on the possibility that this decision is a tip-off of possible future decisions involving other religion issues coming up before The Court. Like coercing nuns to endorse birth control and abortion. Or is The Court going to only give protection to Moslems???

  • @Deacon John,

    “Like coercing nuns to endorse birth control and abortion…”

    Under no circumstances will Nuns be “forced to endorse” anything against their religion. That is illegal. Just as priests will NEVER be forced to marry gay people.

    Your right to your religion ends when expressing those rights harms others. As in Suicide Bombing.

    As for, “only give protection to Muslims..”?
    Wearing a piece of clothing as Nuns do – is already legal religious expression for Nuns. Adding Muslims to that list denies nothing to Nuns.

  • There have been similar cases regarding overweight women, etc., and the results have been the same. As to your hypotheticals, I think the result would be the same.
    “Mentally retarded”? What century are you living in?

  • It appears that at the moment I am in the small minority that thinks that the workplace is not the place to assert your religion in opposition to the employer. Distracting religious jewelry, tattoos, clothing, and behavior are, and should be, constitutionally protected for the public, hence for the shopper, but not for the employee, as he is representing his employer to the public. I look for this case to have a long train of suits that push the limits, and in the end it will be overturned.

  • Why do you hate Orthodox Jews and Sikhs, John? They too wear head covering for religious purposes. They too would be directly affected by this decision.

    Wearing a head covering is a reasonable accommodation. Firing someone because you think God considers them abominations is not. Violating the privacy of an employee’s medical insurance use is also not a form of religious expression. If the nuns were being forced to use birth control and abortion for themselves, it would be an exercise of religious belief. Your religious belief is not grounds for dictating what others must do.

  • There seems to be a misconception that the floodgates are open now that the Supreme Court has recognized the right to wear a hijab at work. It didn’t, because that right has existed for some time. The issue here was who has to ask about a religious accommodation, and when. This case made the news due to a young, attractive Muslim woman challenging a defendant already vulnerable to claims that its “East Coast collegiate” (ie white and affluent) “Look Policy” was discriminatory. Plus it continues the Court’s trend of receptivity to religious freedom claims, in anticipation of the gay marriage case at the end of the month.