Abercrombie & Fitch had a bad day in court Feb. 25 when its lawyer squared off against skeptical Supreme Court Justices hearing oral arguments in a case involving a teenager who says the Muslim headscarf she wore to an interview cost her a job at the preppy retail chain.
Justices peppered the company’s attorney with variations on a simple question: What’s so hard about accommodating a hijab?
A ruling in EEOC v. Abercrombie & Fitch—expected by June—will decide whether a job applicant must specifically request an accommodation before an employer can be held liable for having a dress code that prohibits religious attire or grooming practices.
Samantha Elauf was 17 in 2008 when she applied for a sales job at an Abercrombie & Fitch store. She wore a hijab, which many Muslim women believe their faith requires, to a job interview. However, she never specifically said she wanted a religious accommodation allowing her to wear a scarf on the job. Abercrombie & Fitch declined to hire Elauf because wearing a hijab violated a “look policy” sales staff must follow.
The EEOC sued on Elauf’s behalf, and in 2013, the 10th Circuit Court of Appeals reversed a district court ruling that Abercrombie & Fitch violated Title VII. That set up the Supreme Court challenge.
The key question the Supreme Court must decide is not whether Abercrombie & Fitch discriminated against Elauf, but whether job applicants and employees must explicitly tell an employer that they seek accommodation of garb or grooming practices that are religious in nature.
Justices repeatedly wondered whether the religious accommodation question had become unnecessarily complex.
Justice Samuel Alito suggested that employers could have a simple conversation with applicants, spelling out dress code requirements. Then, he suggested, “Just say, do you have any problem with that?” Other Justices warmed to Alito’s simple-is-better approach, and it quickly became apparent that Abercrombie & Fitch faces an uphill battle to win this case.
Online resource EEOC guidance
Read informal EEOC guidance on religious garb.