Flip-flops are OK.

Fashion and Religion Clash at Abercrombie

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In France, the bitter controversy over the hijab, or headscarf, worn by some Muslim women relates to citizenship, feminism, and the secularism of the French Revolution and Republic. In America, we have Abercrombie. So perhaps it's fitting that the U.S. Supreme Court has announced it will take its first hijab case to decide whether the chain could deny employment to an otherwise qualified young woman who wanted to wear a headscarf on the job.

The case, Equal Employment Opportunity Commission v. Abercrombie & Fitch, started in 2008 when 17-year-old Samantha Elauf applied for a job at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. At Abercrombie, salespeople are called "models," and part of the job interview is scored on how you look. Once hired, the "models" must comply with an Abercrombie "look policy" that governs how they dress.

Elauf knew the score. Before the interview, she asked a friend who knew the store's assistant manager whether she would be able to wear a hijab on the job. The manager told her friend that because he'd worked with someone who wore a yarmulke at Abercrombie, he expected the hijab would be fine. The only quirk was that the look policy prohibited anything black, so Elauf would have to go with a different color headscarf. She thought that sounded all right. Elauf showed up for the interview wearing what the U.S. Court of Appeals for the 10th Circuit called "an Abercrombie-like T-shirt and jeans" -- plus a black hijab.

Elauf didn't bring up her religion or headscarf, and neither did the interviewer, who did mention other requirements of the look policy such as a ban on excessive makeup or nail polish. Elauf did well. She got a two out of three score for appearance and on the other categories. Her total score was six, which ordinarily would get her the job. Once the interview was over, the interviewer was unsure of how to proceed, because she didn't know what company policy would be on the hijab or its color. Her direct supervisor didn't know, and she was directed to a district manager. He told the interviewer that a headscarf would be inconsistent with Abercrombie's look policy, and that she should change Elauf's appearance score to one out of three, which would put her total at five, one point short of a job recommendation.

Elauf didn't get the job -- and the EEOC sued Abercrombie for religious discrimination. A federal district court thought it was an open and shut case and decided summarily for the EEOC. The 10th Circuit reversed. In a split decision, the court didn't just send the issue to trial; it issued summary judgment for Abercrombie.

The court's reasoning was that Elauf had never told Abercrombie that she would require a religious accommodation under the look policy to wear a hijab. Under the complex framework of employment discrimination cases, the EEOC must establish a "prima facie" case of discrimination to shift the burden to the defendant to explain his conduct. According to the court, the EEOC couldn't assert a prima facie case if Abercrombie wasn't on notice that it would have to accommodate Elauf.

If this result sounds absurd, that's because it is. A dissenting judge, Ronald Reagan appointee David Ebel, pointed out the obvious fact that Elauf didn't tell Abercrombie that she would need a special accommodation because she had no reason to assume she would need one. After all, she'd been told by her friend on the authority of the assistant manager that her hijab wouldn't violate the look policy so long as it was any color other than black. Abercrombie, which was in a position to know that the headscarf might violate its policies, never brought up the issue with Elauf -- thereby avoiding a conversation. Ebel acknowledged that, in general, it makes sense for the law to require the applicant to inform the potential employer of a religious scruple that might conflict with the job and require accommodation. But he insisted that the legal framework for determining the existence of a prima facie case ought to be flexible.

Four justices of the Supreme Court -- the number needed to grant certiorari -- clearly thought the 10th Circuit decision was worthy of reconsideration. But how will the Supreme Court address the issue? A narrow holding would simply agree with Ebel and call for flexibility when circumstances warrant. But the Supreme Court generally doesn't take cases merely to correct errors below -- it wants to create a principle.

One broad principle the court could announce is that an employer cannot simply choose not to hire an employee in order to avoid the possibility of being asked to reasonably accommodate the employee's religious beliefs. In effect, such a rule would shift the burden of starting the discussion to the employer if the employer actually in real life knows and understands that religion is on the table.

The court could also frame the issue more narrowly by simply saying that the employee's obligation to raise the issue is waived when the employer relies on religion to make its discriminatory decision. This would decide the case in favor of Elauf, but would be less satisfactory because it would miss the true point of antidiscrimination law: not to treat potential employees differently based on assumptions about their religion.

The court is likely to avoid the fascinating underlying question of whether Abercrombie could lawfully have refused to let Elauf wear a hijab at work even if she had asked. That's a pity, because it would be great opportunity to show the French just how we do things in the U.S.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net