Headscarf case offers religious liberty cover

A majority of Supreme Court justices on Wednesday seemed to favor protecting broad accommodations for religious employees in a case that pits Muslim headscarves against a preppy teen clothier.

In 2008, a 17-year-old Muslim girl wearing a hijab interviewed for a job at the clothing retailer Abercrombie & Fitch in Tulsa, Okla. The managers decided not to give her the job because her religious headscarf didn’t fit appearance guidelines. Abercrombie & Fitch’s dress code for employees on the floor, whom the company refers to as “models,” banned headwear of any kind.

The Equal Employment Opportunity Commission (EEOC) sued on behalf of the girl, Samantha Elauf, and won her $20,000 at the lower court level. But then the 10th U.S. Circuit Court of Appeals ruled in favor of Abercrombie, saying the company couldn’t be expected to accommodate the girl’s religious practice when she hadn’t asked for an accommodation. The Supreme Court took the case.

Religious freedom lawyers as well as religious groups—Christian, Muslim, and Jewish—filed briefs backing Elauf, saying Abercrombie’s actions were clearcut religious discrimination. Under Title VII of the Civil Rights Act, employers must accommodate religious practice unless the accommodation would impose an “undue hardship” on the business. The religious groups say the 10th Circuit’s ruling could have a broad impact on job opportunities for religiously observant employees, like Christians who won’t work on the Sabbath or Sikhs who wear turbans.

In arguments on Wednesday, the high court seemed all but certain to reverse the 10th Circuit. Chief Justice John Roberts, Justices Ruth Bader Ginsburg, Samuel Alito, Sonia Sotomayor, and Elena Kagan all took turns asking hostile questions of Abercrombie’s lawyer, Shay Dvoretzky.

“The reason that she was rejected was because you assumed she was going to do this [wear a headscarf] every day and the only reason why she would do it every day is because she had a religious reason,” Alito said.

Dvoretzky said the company didn’t want to begin “stereotyping” in job interviews and assuming someone’s outfit is religious. Asking an applicant about their religion is also touchy, and Abercrombie said that practice could make the company more vulnerable to lawsuits.

Several justices proposed that Abercrombie, without inquiring into someone’s religious belief, could ask an applicant whether he or she could comply with its dress code. Kagan was particularly blunt with Dvoretzky.

“You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation, to ask some questions,” said Kagan. “Now, people can disagree about whether one can ask those questions in a way that’s awkward at all, but you’re saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But the alternative to that rule is a rule where Abercrombie just gets to say, ‘We're going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out and make sure that they never become Abercrombie employees.’”

Only Justice Antonin Scalia seemed to side with Abercrombie, implying that a ruling against the retailer would open companies up to all sorts of lawsuits. He said companies should only be liable if an applicant asks for a religious accommodation and the company doesn’t hire him or her for that reason.

“If you want to sue me for denying you a job for a religious reason, the burden is on you to say, ‘I’m wearing the headscarf for a religious reason, or I’m wearing the beard for a religious reason,’” Scalia said.

Religious groups in their briefs strongly disagreed with Scalia’s approach, which mirrored the arguments from the 10th Circuit: Employers are protected unless employees ask for an accommodation.

“The 10th Circuit’s ruling ignores the reality of the human condition,” wrote the Becket Fund for Religious Liberty in its brief backing Elauf. The group said in the 10th Circuit’s ruling “employees are nonreligious unless proven otherwise.”

“It is simple anthropological fact that most human beings have religious beliefs and a religious identity of one sort or the other,” Becket’s brief stated. “It is also simple fact that human beings carry that identity with them into the workplace. If the law is to properly order human relationships, it must take those facts into account. The law may not assume that people are irreligious unless proven otherwise, and it should not assume that the workplace is a religion-free zone.”