The Supreme Court heard a case on February 25th about a Muslim teenage girl who was not hired by Abercrombie “because she wears a hijab,” or headscarf, according to the Equal Employment Opportunity Commission’s allegations. Headscarfs do not comply with Abercrombie’s “Look Policy.” At Abercrombie, the sales-floor employees are “referred to as ‘Model[s]’” and “must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores.”[1] Part of this policy prohibits sales-floor employees from wearing black clothing and “caps” (headscarfs are not specified in the policy).
The EEOC won this
freedom of religion case in the United States District Court for the Northern
District of Oklahoma, but the United States Court of Appeals for the Tenth
Circuit decided in favor of Abercrombie. Now, it’s up to the Supreme Court to
decide the following issue: “Can an employer be held liable under Title VII of
the Civil Rights Act of 1964 for refusing to hire an applicant based on a
religious observance or practice if the employer did not have direct knowledge
that a religious accommodation was required?”[2]
So, what exactly
does Title VII of the Civil Rights Act of 1964 say? Here’s a snippet:
“Title VII of the Civil Rights of Act of
1964 makes it ‘an unlawful employment practice for an employer…to discharge any
individual, or otherwise to discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of employment, because of
such individual’s…religion.’”
“‘Religion’ is defined to include those
‘aspects of religious observance and practice’ that an employer is able to
‘reasonably accommodate…without undue hardship on the conduct of the employer’s
business.’”
“As a result, an employer has an
obligation ‘to reasonably accommodate the religious practices of an employee or
prospective employee, unless the employer demonstrates that accommodation would
result in undue hardship on the conduct of its business.’”
Here are the
facts of the case:
Before the job interview,
Samantha Elauf, the job applicant, asked her friend, Farisa Sepahvand, who
works at Abercrombie, whether or not Ms. Elauf could wear a headscarf at
Abercrombie if she were an employee. Her friend asked an assistant manager, who
said that would be fine “especially if she didn’t wear a headscarf that was
black.”[3]
Ms. Elauf wore a
black headscarf to her Abercrombie interview. Applicants do not have to comply
with the “Look Policy” at their interviews, according to Abercrombie’s policy. An
assistant manager, Heather Cooke, interviewed Ms. Elauf and did not ask her
about the headscarf. Ms. Elauf also never mentioned in the interview that she
wears the headscarf for religious reasons.
Ms. Elauf’s interview
score was high enough for her to get the job. Ms. Cooke “assumed that [Ms.
Elauf] was Muslim” and, after the interview, asked Abercrombie’s district
manager, Randall Johnson, about her concern that Ms. Elauf’s headscarf does not
comply with the “Look Policy.” The facts are disputed whether or not Ms. Cooke
mentioned to Mr. Johnson that Ms. Elauf wore the headscarf because of her
religion. According to Ms. Cooke, Mr. Johnson told her “to change Ms. Elauf’s
interview score” so that “she would not be recommended for hire.” Ms. Cooke
never contacted Ms. Elauf about the job. Ms. Elauf found out that she was not
hired through Ms. Sepahvand.
The Supreme
Court justices seemed to lean toward the EEOC’s argument during the hearing.
For example, Justice Samuel A. Alito asked a thought-provoking hypothetical to
Abercrombie’s attorney, Shay Dvoretzky, whether or not Abercrombie would hire a
person that wears a black blouse to an interview, “which is against the
Abercrombie rules”…“on the assumption that this person likes black so much this
person is going to wear black every single day?[4]”
Mr. Dvoretzky responded: “I don’t think Abercrombie needs to make that
assumption about what the person will do later in order to make a judgment
based on the person’s appearance at the interview.”[5]
The question is
one of assumption. As Justice Alito noted, “Maybe she’s just having a bad hair
day so she comes in with a headscarf, but she doesn’t have any religious reason
for doing it.”[6]
If the employer assumes that an
applicant will need a religious accommodation, is an assumption enough
information? Or does the applicant need to tell the employer about his or her
religious needs? Moreover, if the employer thinks
that the applicant will not be okay with wearing his or her garb (i.e. a
headscarf) during work, should the employer ask the applicant during an
interview? Or, is that assumption treating “people differently based on their
religion”? [7]
The Supreme
Court will release most likely release their decision for this case this summer.
[1]
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/10th-cir-11-5110.pdf
[2]
http://gwplsa.blogspot.com/2014/12/elonis-v-united-states-first-supreme.html
[3]
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/10th-cir-11-5110.pdf
[4]
http://www.oyez.org/cases/2010-2019/2014/2014_14_86
[5] Ibid.
[6] Ibid.
[7] Ibid.
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