Abercrombie & Fitch’s rejection of a Muslim job applicant for wearing a headscarf was sharply criticised in the US supreme court on Wednesday, as even conservative justices ridiculed the fashion chain’s “mythical preppy” rules on how employees can dress.
In a landmark religious discrimination case, brought by Oklahoma shop worker Samantha Elauf, lawyers for the store argued it need not have taken her religion into account when applying a rule against headwear because managers only guessed she was Muslim.
But a majority of justices on the nine-strong bench appeared sympathetic to arguments made by the US Equal Employment Opportunity Commission (EEOC) that they should have asked Elauf or at least told her of the ban so she had an opportunity to volunteer the information.
“I am not only standing up for myself, but for all people who wish to adhere to their faith while at work,” said Elauf in a statement issued from the steps of the court after the hour-long hearing. “Observance of my faith should not prevent me from getting a job.”
If it eventually rules in favour of the EEOC and Elauf, the supreme court will clear up a disagreement among lower appeal courts about whether employers have to know for sure that an applicant is seeking a religious exemption under existing anti-discrimination rules. Questions raised during the oral argument suggest many are leaning this way.
Justice Elena Kagan compared the case to an employer deciding it did not want to hire Jewish people and then looking out for names that looked Jewish as a way to screen applicants. “That’s gotta be against the law, right?” she said, incredulously.
Justice Stephen Breyer also joked about the store’s attempt to make everyone look like they had gone to Princeton University.Samuel Alito, known for more conservative views, also said Abercrombie must have suspected Elauf’s headscarf was permanent, otherwise it would have simply assumed she would not wear it again once at work. “[Or] maybe she was just having a bad hair day?” he asked to laughter from the court after describing the store’s list of rules as “mythical preppy”.
Only Antonin Scalia, the most conservative justice on the bench, appeared sympathetic to the store’s argument that it could not know for sure what Elauf’s religion was, even though a manager suspected she was Muslim.
“Would you tell us what it is you want here,” he asked EEOC lawyer and deputy US solicitor general Ian Gershengorn. “Understand, know, believe, suspect – what other verbs do you suggest?”
“If you want to sue me, the burden is on you to tell me,” added Scalia.
Briefly, chief justice John Roberts appeared sympathetic. “Let’s say you have someone of Middle Eastern appearance who shows up with a beard,” he said. “Do you think it is better for him … to be asked questions that that they would not ask any other applicant?”
But Roberts and others appeared swayed by Alito, who suggested employers simply tell applicants what their rules are and then ask “Do you have a problem with that?” as a way around making assumptions about their religion.
Abercrombie’s lawyer Shay Dvoretzky questioned whether this would mean the company would have to “deviate from a religion-neutral policy based on mere suspicion”.
“Having that kind of standard will inevitably lead employers to stereotype,” he added.
He also rejected the suggestion that the store should have told Elauf it did not allow headscarves.
“It was a matter of common sense that Abercrombie & Fitch requires employees to wear clothes that look like Abercrombie style,” said Dvoertzky. “It does not sell headscarves.”
But the majority of the bench appeared to agree with Gershengorn’s assertion that “this is a particularly straightforward case”, because the store had admitted it suspected Elauf was Muslim and still rejected her due to her headscarf.
“This is an unusual case because it is very rare that you have an interviewer like [Abercrombie manager Heather] Cooke that is honest,” said Justice Sonia Sotomayor. “The only reason you have a suit here is because she was honest.”
“Most of the time applicants never find out why they were not hired and this is what makes this a very important case,“ concluded Gershengorn.