If a Sikh man wears a turban, a Hasidic man wears a hat, a Muslim woman wears a hijab, and a Catholic nun wears a habit, should their employers assume their garb symbolizes their religious beliefs or are they simply wearing them as a fashion statement?
That was the question posed by Justice Samuel Alito as the Supreme Court discussed whether potential employers or applicants are responsible for pointing out potential religion-related issues while hiring.
The debate arose as the high court heard the case filed by Samantha Elauf, 24, against fashion retailer Abercrombie & Fitch, who turned her down for a position she was applying for because she wore a black hijab, a headscarf worn by Muslim women to symbolize their faith, to the interview.
Elauf was 17 when she applied for a sales staff position at an Abercrombie Kids store at Woodland Hills Mall in Tulsa, Oklahoma. She said she was never informed about the company's dress code, which prohibited all headwear of all kinds and black clothing. Elauf never learned about the reason why she was not accepted until a friend told her. That was when she told a Muslim support group, which turned to the Equal Employment Opportunity Commission (EEOC), which represents Elauf, for guidance.
The Supreme Court's decision is not expected before July, but the Justices, both liberal and conservative, appear to have made up their minds about who to side with. The turning point in the arguments was when Justice Alito told Abercrombie lawyers that the company must have known that Elauf was wearing the headscarf for a religious reason. Under Title VII of the federal civil rights law, employers are forbidden from refusing to hire applicants based on their religious beliefs, and if the defendant had rejected Elauf for her religious garb, it would be a violation of employees' right against religious discrimination.
"Just because she wore a headscarf on that one day wouldn't mean that she necessarily was going to wear it every day," Justice Alito said. "The reason that she was rejected was because you assumed she was going to do this every day, and the only reason why she would do it every day is because she had a religious reason."
Michael Scheimer, spokesperson for Abercrombie & Fitch, says the company "has a longstanding commitment to diversity and inclusion, and consistent with the law has granted numerous religious accommodations when requested, including hijabs."
But the Justices believe Elauf should not have been required to inform the interviewer of her religious inclination. Their point is the company should have been responsible for informing the applicant of their dress code and, the interviewer having observed a potential religious-based issue, should have pointed it out to Elauf. Justice Sonia Sotomayor said interviewers for companies that prohibit facial hair could say, "You know, we don't permit facial hair on the floor. You have a problem with that?" Such a question could easily circumvent having to ask for the applicant's religion directly, which is prohibited by law in some states.
Shay Dvoretsky, lawyer for Abercrombie & Fitch, said doing so would force the company to stereotype applicants. He also argued that it would put the employer in the difficult position of asking "hard questions." But Justice Elena Kagan said it was better for the interviewer to engage in "awkward" conversations first than reject applicants based on their religious wear.
"You're essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as awkward conversation," said Justice Kagan. "But 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. We'll never have the awkward conversation because we're just going these people out.'"
Dvoretsky warned that what the EEOC wanted from Abercrombie is to treat applicants based on their religion differently, "which is precisely the opposite of what Title VII wants." He said his client's dress code was not intended to prohibit the wearing of religious pieces of clothing but to ban all kinds of headwear. But that is essentially the problem, said Justice Ruth Bader Ginsburg.
"They don't have to accommodate a baseball cap," she said. "They do have to accommodate a yarmulke."
Only Justice Antonin Scalia appeared to sympathize with employers, who have to find the right balance between not posing questions that could be construed as discrimination and raising issues that could stem from the applicant's religious inclination.
"If you want to sue me for denying you a job for a religious reason, the burden is on you to say, 'I'm wearing the headscarf for a religious reason,' or, 'I'm wearing the beard for a religious reason," Justice Scalia said.
