The U.S. Supreme Court has decided to hear the case of Samantha Elauf, a Muslim teenager denied a position at Abercrombie & Fitch Co. (“A&F“) because she wore a hijab. The case is Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86.
In 2009, the U.S. Equal Employment Opportunity Commission (“EEOC“) sued the retailer, under Title VII of the Civil Rights Acts of 1964, on behalf of Elauf. A district court judge ruled for Elauf, a now successful fashion blogger and store merchandising manager for Urban Outfitters, and a jury awarded her $20,000 in damages. A&F appealed the decision to the Tenth Circuit, which overturned the district court’s decision.
The U.S. Court of Appeals for the Tenth Circuit concluded that Elauf was not protected under Title VII since Elauf did not explicitly inform the interviewer of the hijab’s religious significance. The EEOC has since appealed the decision to the Supreme Court.
Religious Issues
This suit comes at an especially important time: claims of religious discrimination in the U.S. workplace rose to 3,700 annually, according to the EEOC. A number striking because it has more than doubled compared to 15 years ago.
Sixteen religious-advocacy groups have filed amicus curiae, i.e. friend-of-the-court, briefs claiming A&F’s actions were religiously discriminatory. Due to the increase in religious diversity, the issue “is of enormous practical importance to a wide array of believers from numerous religious traditions” according to the court filing by religious groups comprising Christians, Jews, Sikhs and Muslims.
The Council on American-Islamic Relations claimed the Appellate courts’ ruling “places unreasonable burdens on individual job candidates and employees who outwardly display their religion through dress and grooming practices.” The American-Jewish Committee, amongst other Jewish organizations, suggests that most workplace conflicts over religion can be addressed through discussion and “relatively simple accommodations.” As a result, “Title VII’s religion provisions should be interpreted to encourage ‘bilateral cooperation’ between employers and current or prospective employees.”
The Becket Fund for Religious Liberty—a public-interest law firm that often supports Christian causes—argued that the Appellate court’s ruling allows for “a presumption that employees are nonreligious unless they explicitly announce otherwise, essentially creating a standard of ‘protection upon request only’ that erodes the important role that religion plays in society.”
Conversely, business advocacy organizations have supported A&F, fearing they could face similar consequences for religious discrimination. The U.S. Chamber of Commerce and the National Federation of Independent Business, have filed a joint friend-of-the-court brief endorsing the retailer. The business groups argue the EEOC’s position would allow “for the recovery of damages without any showing of intentional discrimination.” They further argue that endorsing the government’s position “would only add more confusion to an area of employment-discrimination law that has already lost its way.”
As it stands now, Federal law requires an employer to “reasonably accommodate” religious practices as long as it would not cause an “undue hardship” to the business.
Sales Models
The case stems from an interview Elauf had with a Tulsa, Oklahoma Abercrombie Kids store. All A&F stores, including Abercrombie Kids, require their retail salespeople, whom they term models, to reflect the A&F’s style. Under the A&F look policy, models must wear styles similar to the clothing sold in the store, and are prohibited from wearing hats or anything black. Elauf was rejected because the black hijab she wore to the interview did not comply with A&F’s strict dress code. A&F has since relaxed its policy regarding headscarves, after two separate lawsuits involving hijab-wearing Muslim employees, yet the no-black rule remains in place.
The assistant manager who interviewed Elauf gave her solid marks on the three “competencies” required for the job of model: (1) outgoing and promotes diversity, (2) sophistication and aspiration and (3) appearance and sense of style. The subject of Elauf’s religion never arose during the interview and the manager, Heather Cooke, was prepared to offer Elauf the job. Elauf said that, at the end of her interview, Abercrombie Kid’s assistant manager told her that someone would call her in a few days about orientation. But, no one ever called.
Cooke had discussed Elauf’s hijab with Randall Johnson, an Abercrombie district manager. Johnson said that, because Elauf would be in violation of A&F’s dress code, Cooke should downgrade Elauf’s interview score and deny her the job. A friend of Elauf’s who worked at the store asked about the store’s decision and the assistant manager indicated that Elauf had not been hired because of her hijab.
A&F’s Look Policy—the brainchild of former CEO Mike Jeffries—aims to cultivate an iconic collegiate “preppy” style. The mall-based retailer purportedly founded in 1892 inserted itself into the marketplace to sell to beautiful, young and privileged people who desire to emulate timeless East Coast traditions. The Ohio-based company deems caps too informal for that image, and also bans facial hair, hair with streaks and/or contrasting colors, unnatural makeup, obvious tattoos and long fingernails.
In court briefs, lawyers for A&F explained that stores must preserve their business “through the vicissitudes of teen and young adult fashion.” A&F lawyer Shay Dvoretzky opined: “Messages that deviate from a brand’s core identity weaken the brand and reduce its value.” A&F’s standards of “youthful all-American” and “classic” have already been questioned for inherent discrimination. This begs the question, will Samantha Elauf’s hijab truly damage A&F’s reputation or cause them undue hardship?
The Supreme Court will closely examine A&F’s Look Policy, and decide whether retailers must automatically offer religious accommodation for applicants, or whether the prospective employee must request such an accommodation. An indication of the Court’s feelings can be summed up by Justice Ruth Bader Ginsburg’s quip: “They don’t have to accommodate a ball cap, they do have to accommodate a yarmulke.”
Actual Knowledge
One wonders why A&F continues to fight Elauf’s claim when it previously paid $40 million in a class-action suit comprised of thousands of minority plaintiffs to settle a case brought by American college students for racial and sexual discrimination. In 2013, A&F agreed to pay $71,000 to settle two similar suits in California last year. However, in Elauf’s case, the company claims its actions were legal because it did not have “actual knowledge” that Elauf wore a scarf for religious reasons. The company argued “an employer cannot be liable for failing to accommodate a religious conflict unless it knows that the religious conflict exists”.
Justice Samuel A. Alito, Jr. noted, in the preliminary hearings, that employers could effortlessly determine whether prospective employees need a religious accommodation by simply describing their dress code and asking if it posed a problem. If the applicant then raised a religious objection, the employer would be required to offer an accommodation so long as it did not place an “undue burden” on the business. Alito and other justices seemed to place the burden on the employer to explain the company’s wardrobe policy, and ascertain whether an applicant could comply, instead of simply deciding not to hire.
A&F lawyer, Shay Dvoretzky, countered that questioning a job applicant about their religion could expose employers to lawsuits. A&F also contends that it should not be forced to ask employees about their religious views. This seemed to sway at least some justices as Chief Justice John Roberts expressed concern that a dialogue over religious practices could lead to increased stereotyping.
U.S. Solicitor General Donald Verrilli, representing the EEOC, said other courts have placed the burden on employers by requiring inquiry when the employer has reason to believe a conflict exists. Verrilli argued job applicants like Elauf often will not know whether their religious practices might violate a company policy. A ruling favoring A&F would allow employers to “take adverse employment actions based on what they correctly understand to be religious practices in cases in which applicants or employees simply lack the knowledge necessary to request an accommodation,” Verrilli wrote.
Possible Outcome
The Court is expected to rule by late spring on whether, or how, A&F can preserve its aesthetic while allowing for religious expression. A majority of the justices have generally shown sympathy for business complaints about the burdens of consumer and employee litigation. Nevertheless, the Tenth Circuit’s strikingly employer-friendly standard for religious-bias suits stands in tension with rulings of other lower courts. Due to the division in the Court, the denominationally diverse amicus curiae briefs could sway justices to vote against A&F.
The Court’s four liberal justices are likely to vote in Elauf’s favor, while at least one of the court’s conservatives, Justice Alito, seems prepared to follow suit. If this occurs, the EEOC will obtain the five-vote majority necessary to prevail. Whichever way the Court rules, similar suits may haunt A&F for some time, despite its rebranding attempts.
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