In an era of heightening religious tension worldwide, Abercrombie & Fitch has pulled off a miracle: The retailer managed to unite Christians, Jews, and Muslims, as well as Buddhists, Hindus, Santeros, Sikhs, and Zoroastrians. Lawyers representing all these faiths (and agnostics and atheists, too) have joined together for a Supreme Court case reviewing a religious-bias lawsuit against Abercrombie & Fitch.
The faithful, as it happens, are united against Abercrombie.
Sixteen religious-advocacy groups have filed friend-of-the-court briefs siding with the U.S. Equal Employment Opportunity Commission (EEOC) in a discrimination case scheduled to be argued on Feb. 25. The EEOC is appealing a lower-court decision that said Abercrombie couldn’t be held liable for rejecting a Muslim job applicant based on her wearing a traditional head covering known as a hijab. That decision, reached by the U.S. Court of Appeals for the Tenth Circuit in Denver, concluded that the plaintiff, 17-year-old Samantha Elauf, wasn’t covered by Title VII of the Civil Rights Act of 1964 because she failed to tell an Abercrombie interviewer explicitly that she wore the hijab for religious reasons.
Abercrombie acknowledges that its hiring personnel understood why Elauf wore a hijab to her interview at an Abercrombie Kids store in Tulsa. The retail chain prohibits store employees from wearing head coverings—part of its “Look Policy,” which cultivates “a classic East Coast collegiate style of clothing”—but stresses in its Supreme Court brief that the policy is “religion-neutral.” Moreover, Abercrombie’s brief adds, “accommodating religious practice is not always straightforward, in large part because it can be hard to tell who wants or needs accommodation.” The EEOC’s own guidelines, the company contends, “have long reflected this difficulty by acknowledging that it is generally the employee’s or applicant’s duty to ask for accommodation—not the employer’s job to guess.”
In its brief, the EEOC says Abercrombie misunderstands its guidelines for applying Title VII. The law, the agency says, “prohibits an employer from refusing to hire a job applicant based on what the employer correctly understands to be the job applicant’s religious observance or practice, unless accommodating that practice would cause the employer hardship.” The EEOC continues: “Employers who suspect a possible religious conflict can simply advise an applicant of the relevant work rules and ask whether (and why) the applicant would be unable to comply.”
Religious organizations agree. In a friend-of-the-court brief, the Council on American-Islamic Relations argues that the Tenth Circuit’s ruling “places unreasonable burdens on individual job candidates and employees who outwardly display their religion through dress and grooming practices.” A joint brief from the American Jewish Committee and other Jewish organizations strikes a more conciliatory tone, noting that most workplace conflicts over religion can be addressed through discussion and “relatively simple accommodations.” As a result, “Title VII’s religion provisions should be interpreted to encourage ‘bilateral cooperation’ between employers and current or prospective employees.” But the Tenth Circuit disregarded these principles, the groups argue, by “imposing unique and onerous requirements on applicants and employees who seek to establish religion-based discrimination.”
The Becket Fund for Religious Liberty, a public-interest law firm that often supports Christian causes, but also stresses its representation of other faiths, warns that the Tenth Circuit’s decision would impose “a presumption that employees are nonreligious unless they explicitly announce otherwise, essentially creating a standard of ‘protection upon request only’ that erodes the important role that religion plays in society.”
Abercrombie does have support from the U.S. Chamber of Commerce and the National Federation of Independent Business, which filed a joint friend-of-the-court brief endorsing the retailer. The EEOC’s position, the business groups argue, would allow “for the recovery of damages without any showing of intentional discrimination.” The groups add that the EEOC is seeking to enforce “a freestanding ‘failure to accommodate’ claim [that] finds no support in the statutory text.” Endorsing the government’s position, the brief asserts, “would only add more confusion to an area of employment-discrimination law that has already lost its way.”
The justices are expected to rule by late spring on whether, or how, Abercrombie can preserve its preppy tradition while integrating the trappings of non-WASP belief systems. The outcome is difficult to handicap. A majority of the justices have generally shown sympathy for business complaints about the burdens of consumer and employee litigation. On the other hand, the Tenth Circuit’s strikingly employer-friendly standard for religious-bias suits stands in tension with rulings of other lower courts. In this too-close-to-call environment, the denominationally diverse friend-of-the-court briefs could very well sway justices to vote against Abercrombie & Fitch.