On Thursday, the Supreme Court declared that it would hear a religious hiring discrimination case, stemming from a Tulsa, Oklahoma Abercrombie & Fitch store’s decision in 2008 not to hire then 17-year-old Samantha Elauf because she wore a hijab.
What makes this case particularly interesting is that Abercrombie & Fitch is openly admitting that their refusal to hire Elauf was based on her wearing the hijab and not some other reason. They argue that this was not an instance of religious discrimination, though, because they didn’t have “actual knowledge” that wearing the hijab was religious.
Business Week reports that Samantha Elauf
… had been told by a friend who worked for the retailer that wearing a hijab wouldn’t be a problem — as long as it wasn’t black. Sales associates can’t wear black at Abercrombie.
During her interview, Elauf wore a head scarf and the assistant manager scored her style a 6, which was good enough to be hired. When the assistant manager sought approval for Elauf’s hijab, though, a supervisor said the head scarf didn’t meet Abercrombie’s look policy [which, at the time, did not permit the wearing of hijabs; this has since been changed]. Hats are not allowed at Abercrombie. The supervisor later said he didn’t know that Elauf wore the scarf for religious reasons. Elauf wasn’t hired.
The Equal Employment Opportunity Commission sued on Elauf’s behalf, and a federal judge found that Abercrombie’s decision was in fact a violation of Title VII of the Civil Rights Act of 1964. This decision was then overturned by the 10th U.S. Circuit Court of Appeals, which sided with Abercrombie, saying that since Elauf had not given direct, explicit notice that she needed a religious accommodation, no discrimination had taken place.
At the heart of what the Supreme Court will decide, then, is whether direct, explicit notice is always necessary.
Abercrombie argues that this is the case — that applicants “are not permitted to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.” The EEOC, on the other hand, argues that a prospective employee cannot know be expected to know a potential employers’ rules beforehand, in order to know what conflicts might arise (and thus, what accommodations are needed). They also point out that, as Elauf wore a distinctly religious garment to her interview, Abercrombie had “enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.”
It will interesting be to see what the Supreme Court decides. Abercrombie’s defense seems to hinge on the merest technicality: that Elauf did not explicitly state that the religious garment she was wearing was a religious garment. And, from my perspective, that seems like a very shallow defense. Elauf was not wearing an ambiguous garment, or even an obscure one; the religious nature of the hijab is widely known (and easily ascertained). Should ignorance be an excuse for intolerance, intentional or not? Abercrombie has already settled two religious discrimination cases stemming from the “look policy,” in which they fired or refused to employ Muslim women because they wore hijabs. This seems like another instance that would have been best served by admitting discrimination, settling, and moving on.
For more on the case, see the SCOTUS blog.