Abercrombie Pressed at U.S. Supreme Court in Head-Scarf Case

U.S. Supreme Court justices expressed support for a Muslim teenager denied a job at Abercrombie & Fitch Co. because of her head scarf, in a case that may put a greater burden on employers to avoid religious discrimination.

Hearing arguments Wednesday in Washington, several justices questioned a federal appeals court ruling that sided with Abercrombie. The lower court said Samantha Elauf needed to explicitly tell the company she required a religious exemption from its dress code to work at an Oklahoma store.

Justice Ruth Bader Ginsburg questioned the company’s view, saying Elauf had no reason to think there was anything about her dress that was offensive to the company.

“How could she ask for something when she didn’t know the employer had such a rule?” Ginsburg said.

More than a dozen religious-advocacy groups from a variety of faiths are backing the U.S. Equal Employment Opportunity Commission, which filed a suit on Elauf’s behalf. They say the case has implications for the growing practice of online employment applications, which sometimes reject job-seekers automatically if they aren’t available to work on the Sabbath.

Business groups, including the U.S. Chamber of Commerce, are supporting Abercrombie.

Justice Samuel Alito asked why businesses with employee dress policies like Abercrombie can’t just explain them to applicants and ask whether they have a problem. Should an applicant wearing obviously religious dress, such as a Sikh turban, have to take the initiative to explain the garb is more than a “fashion statement”? he asked.

Formal Complaints

The EEOC received 3,549 formal complaints of religious discrimination last year, almost double the number 15 years earlier, though down from a peak of 4,151 in 2011.

Federal law requires an employer to “reasonably accommodate” workers’ religious practices as long as the business wouldn’t suffer an “undue hardship.”

Abercrombie contends it shouldn’t be forced to ask employees about their religious views.

Justice Elena Kagan said Abercrombie doesn’t want to have what might be an “awkward conversation” with applicants.

“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,” she said. “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.”

Religious Practices

The Obama administration says job applicants like Elauf often won’t know whether their religious practices might violate a company policy. The government says employers who suspect a conflict should be required to advise the applicant of the relevant work rules and ask whether compliance would be a problem.

Chief Justice John Roberts questioned the government’s argument, saying employers would be asking questions based on stereotypes.

“It seems that your solution causes more problems,” he said.

The case reached the high court at a time of transition for Abercrombie, whose longtime chief executive, Michael Jeffries, left the company in December after years of slowing sales.

The dispute stems from Abercrombie’s requirement that its in-store salespeople, whom it calls “models,” reflect the store’s style. Under Abercrombie’s “look policy,” salespeople must wear styles similar to the clothing sold in the store and are prohibited from wearing hats or anything black.

Job Interview

Elauf, then 17, wore a black scarf, known as a hijab, when she met with an assistant manager about a job at an Abercrombie Kids store in Tulsa, Oklahoma, in 2008. The subject of religion never arose during the interview, although the manager, Heather Cooke, later testified that she assumed Elauf was Muslim.

Cooke was prepared to make a job offer until she discussed Elauf’s scarf with Randall Johnson, an Abercrombie district manager. Johnson said that, because Elauf would be in violation of Abercrombie’s dress code, Cooke should downgrade the girl’s interview score and deny her the job.

Abercrombie, which is based in New Albany, Ohio, agreed to pay $71,000 to settle two similar suits in California in 2013. In Elauf’s case, the company says its actions were legal because it didn’t have “actual knowledge” that Elauf wore a scarf for religious reasons.

A Denver-based federal appeals court agreed with that argument, ruling in favor of Abercrombie on a 2-1 vote.

The case is Equal Employment Opportunity Commission v. Abercrombie & Fitch, 14-86.

Before it's here, it's on the Bloomberg Terminal.