Analysis Human Rights

Can Abercrombie’s ‘Look Policy’ Accommodate a Religious Headscarf?

Jessica Mason Pieklo

That's the question before the Roberts Court in a case that pits the religious rights of employees against the duty of an employer to accommodate them.

So far, employers have had a good run before the Roberts Court, thanks in large part to Justice Samuel Alito, who has emerged as the architect and conservative standard-bearer for defending the interests of employers in employment claims.

Under his direction, the Court dramatically rolled back employee protections from on-the-job harassment in Vance v. Ball State. Justice Alito also authored the Court’s majority opinion in Hobby Lobby, which allowed some businesses to assert a religious objection to complying with the birth control benefit in the Affordable Care Act. In each of those cases Alito accepted, practically at face value, the claims by employers that complying with anti-discrimination laws was unnecessarily burdensome and crafted for them enormous legal protections as a result.

But if there’s going to be a case where Justice Alito sides with an employee, it is this one. Back in 2008, a then 17-year-old Samantha Elauf went to the Woodland Hills Mall in Tulsa, Oklahoma, to interview for a job at Abercrombie Kids, a children’s clothing store owned by Abercrombie & Fitch. During her interview Elauf, who is Muslim, wore a t-shirt, jeans, and a headscarf. Despite an initial recommendation to hire Elauf, Abercrombie & Fitch declined, determining on the basis of the headscarf worn by Elauf during her interview that she didn’t fit the Abercrombie “classic East Coast collegiate-style” look.

Elauf complained, and the Equal Employment Opportunity Commission brought a case on her behalf, arguing that Abercrombie & Fitch failed to accommodate Elauf’s religious practices when it refused to hire her because she wore a headscarf. The district court agreed and sided with Elauf. But the Tenth Circuit Court of Appeals reversed the ruling, reasoning that it was up to Elauf to provide “direct notice” to Abercrombie & Fitch that she would need a religious accommodation to their “look policy.” It wasn’t enough that Elauf showed up to the interview wearing her headscarf, the Tenth Circuit said. She needed, in the interview, to make the case for Abercrombie accommodating its policy to hire her.

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Last week, the Roberts Court attempted to parse through just what exactly the Abercrombie “look” is, and whether or not it can or should accommodate a religious headscarf. Following on the heels of Hobby Lobby, the case sheds new light on the legal questions surrounding religious rights in the workplace.

In its brief, Abercrombie & Fitch said job applicants should not be allowed to “remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.” During oral arguments, Alito seized on that argument by posing a hypothetical for the attorneys to answer: If in a job interview, a Sikh man wears a turban, a Hasidic man wears a hat, a Muslim woman wears a hijab, or a Catholic nun wears a habit, must employers recognize those items of clothing as markers of their faith, or should they assume, Justice Alito asked, that each is a “fashion statement”?

Alito’s point went right to claims by Abercrombie’s attorneys that the company suspected, but didn’t actually know for certain, that Elauf wore her headscarf for religious reasons. The company also claimed that it was up to her to raise the issue first.

Justice Elena Kagan took Alito’s point a little further. “Suppose,” Justice Kagan asked, “an employer just doesn’t want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish and the employer doesn’t know he’s Jewish. No absolute certainty, and certainly Mr. Goldberg doesn’t say anything about being Jewish, but the employer just operates on an assumption that he’s Jewish, so no, he doesn’t get the job. Is that a violation?”

Attorneys for Abercrombie said their situation was different because its dress code applied neutrally in banning all head coverings, where the situation described by Justice Kagan was a classic case of employment discrimination. Not so fast, Justice Ruth Bader Ginsburg responded. “They [Abercrombie] don’t have to accommodate a baseball cap,” she said. “They do have to accommodate a yarmulke.”

And that’s the problem for Abercrombie. Its “look,” whether intentional or not, is racially and religiously coded. They proved as much when they refused to hire Elauf for not fitting the “look.” But the problem for equality advocates is that it is not clear under Title VII that such a decision was actually unlawful. In defending the actions of its managers, Abercrombie’s attorneys pointed to EEOC guidelines, which prohibit employers from making assumptions or asking potential employees about their religious practices—which was the point made in Justice Kagan’s hypothetical involving the Jewish employees. Historically, those stereotypes have been used by employers to deny employment opportunities to some women and people of color. Instead, the EEOC guidelines suggest employees ask employers for any accommodations they may need, which is what Abercrombie claims should have happened here.

But in this case, Elauf didn’t even know about Abercrombie’s “look policy,” so how could she ask for an accommodation to a policy she didn’t know existed? And how many interview candidates have access to corporate policies before their interview, let alone are in a secure enough position to make accommodation requests of those policies immediately? Normally those kinds of employee concerns wouldn’t register for Justice Alito, but as much as this is an employment discrimination case, it’s also a religious expression case, which explains why toward the end of oral arguments it was Justice Alito, joining with Justices Sotomayor and Ginsburg in looking for a solution that would accommodate the rights of employees for once.

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