July/August 2015 Church & State | People & Events

The U.S. Supreme Court ruled June 1 that a Muslim woman who was denied a job at retailer Abercrombie & Fitch because she wears a headscarf has the right to sue the company.

The high court reinstated a lawsuit claiming that Abercrombie violated the Civil Rights Act of 1964 when it declined to hire Samantha Elauf, a practicing Muslim who wears a headscarf for religious reasons. The company’s decision was based on its “look policy,” which prohibits employees from wearing hats and other head coverings.

Abercrombie, which has since altered the look policy, argued that it could not have reasonably known Elauf is Muslim since she did not request a religious accommodation during her job interview. The 10th U.S. Circuit Court of Appeals accepted that argument, even though the sales manager who rejected Elauf admitted that the company understood she was Muslim and that her headscarf factored into the decision not to hire her.

The Supreme Court’s 8-1 decision overturned that 10th Circuit ruling, sending the case back to the lower court for further consideration. In the majority opinion, Justice Antonin Scalia wrote that an employer may not discriminate against an applicant if they believe the applicant would require a religious accommodation.

“Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation,” read the opinion. “We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

Americans United and its allies filed a friend-of-the-court brief in the case. The brief explained that this case is different from Burwell v. Hobby Lobby Stores because Elauf’s scarf did not cause any harm to a third party. The groups urged the high court to rule against Abercrombie and argued that a ruling in favor of the company would provide “a simple roadmap for any employer who wants to engage in intentional hiring discrimination based on religion: Don’t ask, don’t tell.”

“This ruling makes it very clear that employers cannot put their head in the sand when they suspect that an applicant will need a religious accommodation,” said Gregory M. Lipper, Americans United’s senior litigation counsel. “Ms. Elauf was qualified for the position, and Abercrombie would have suffered no hardship by letting her wear a headscarf in the workplace.”

The brief was written by David T. Goldberg of Donahue & Goldberg; Toby J. Heytens, Daniel R. Ortiz, and Douglas Laycock of the University of Virginia; and Marc Stern of the American Jewish Committee. Americans United joined the brief alongside the Anti-Defamation League, the Jewish Council for Public Affairs, the Jewish Social Policy Action Network, the National Center for Lesbian Rights and the Union for Reformed Judaism.

The case is EEOC v. Abercrombie & Fitch.