Supreme Court Explainer: Why the Abercrombie Hijab Case Matters
By / Jun 5

Earlier this week, the Supreme Court handed down an important decision for religious liberty. ERLC had joined in a brief to support Ms. Elauf’s case, and we are pleased that the Court ruled in her favor yesterday.

If you’re confused about what this case is about, here’s a brief overview:

What was this case about?

Samantha Elauf, a Muslim woman from Tulsa, Oklahoma, applied for a job at Abercrombie & Fitch. She wore her hijab, a headscarf worn by many Muslim women, to the job interview in accordance with her religious beliefs. What Ms. Elauf didn’t know was that Abercrombie has policy against wearing hats, caps, or any type of headwear in its employee dress code.

This put the Abercrombie store in a difficult position. But, according to an appellate court opinion, the store managers chose not to have a conversation about the underlying religious issues and whether there might be some compromise between Abercrombie’s dress code and Ms. Elauf’s religious beliefs. Instead, Abercrombie decided to deny Ms. Elauf the job based on an assumption that the headscarf would present a problem with the dress code.

What did Abercrombie & Fitch do wrong?

When making hiring decisions, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against job applicants on the basis of the employee or applicant’s race, color, religion, sex, or national origin. In the case of religious discrimination, this prohibition against discrimination is not absolute: employers may discriminate if they demonstrate that they are unable to make a “reasonable accommodation” for the religious observance or practice without “undue hardship on the conduct of the employer’s business.”

When presented with Ms. Elauf’s situation, Abercrombie had two options: make an exception for Ms. Elauf or make the argument that the headwear ban is so important to Abercrombie’s business that an exception for Ms. Elauf would put an “undue hardship” on the business.

Instead, Abercrombie chose not to hire Ms. Elauf, making neither an exception to the dress code nor an argument that an exception would be an undue hardship.

What did the Supreme Court decide?

The key issue before the Supreme Court was the fact that Ms. Elauf didn’t ask for an exception to Abercrombie’s dress code. As a result, Abercrombie assumed – but didn’t know for certain – that Ms. Elauf’s religious beliefs would conflict with the dress code.

Abercrombie argued that because the company did not actually know about Ms. Elauf’s religious beliefs, they were in effect permitted to discriminate.

The Supreme Court disagreed with Abercrombie’s position, deciding that Abercrombie had violated the Civil Rights Act by discriminating against Ms. Elauf. Practically, this meant that Abercrombie should have asked more questions about Ms. Elauf’s religious beliefs and made a reasonable accommodation for her.

Why does this case matter?

If Abercrombie had won this case, employers that suspected that a job applicant’s religious beliefs might create a conflict with employer policies could have discriminated against those employees without asking more questions.

Justice Scalia gave a practical example in the opinion of the Court:

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Because of this case, employers that have a reason to believe that they may need to make a accommodation for the religious beliefs or practices of a prospective employee will need to have a direct conversation about the issue.

This case is good news for religious people in our country. It means that religious beliefs and practices remain protected in the workplace, even when employers have only a suspicion that a job applicant’s religious beliefs may need to be accommodated.

This case also means that Christian business owners will need to continue to accommodate the religious beliefs and practices of members of other faiths, even when that is inconvenient. They can do so knowing that others will receive the same protections for their faith.

Wasn’t this already obvious?

While this is undoubtedly an important case, in a certain way this decision seems a little obvious. After all, this case was decided 8 to 1. The United States was founded as a place where different faith sects could live side by side and build a great society together in peace. Surely we should see that our employment policies will need to make accommodations for people that are not like us.

But this underscores an important point: religious liberty is not an obvious concept. In the course of human history, the protections for religious liberty that the First Amendment provides are anomalous; they are not the norm. We should never take this liberty as a given.

The human experience in much of the world for much of history has been the rule of man – the strongest wins. We are blessed to live in the United States, a place where the rule of law constrains the hand of the strong against the weak.

May we as Christians be diligent to stand with our friends of other faiths. May we remember that the First Amendment which protects them also protects us.

Explainer: The Supreme Court’s ruling in the Abercrombie hijab case
By / Jun 4

In the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court ruled on Monday that employers must offer a reasonable accommodation for an employee's religious practices. Here is what you should know about that case.

What was the issue that sparked the lawsuit?

Samantha Elauf, a 17-year-old Muslim girl from Tulsa, Oklahoma, applied for a job at Abercrombie, a preppy clothing retailer, in 2008. After being interviewed by Heather Cooke, the store’s assistant manager, Elauf was given a rating that qualified her to be hired. However, the store has a policy forbidding employees to wear “caps.” Cooke informed her district manager that she believed Elauf wore her headscarf because of her faith. Her manager said that Elauf ’s headscarf would violate the store’s dress code, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

The EEOC sued Abercrombie on Elauf ’s behalf, claiming that its refusal to hire Elauf violated Title VII of the Civil Rights Act of 1964. Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. Abercrombie claimed that dress policy wasn’t discriminatory because it applied to all head coverings. In addition, they claim, Elauf had not even requested a religious accommodation.

The question presented to the Supreme Court was whether this Title VII prohibition applies only where an applicant has informed the employer of his need for an accommodation.

What was the ruling of the Court?

The Tenth Circuit appeals court had ruled that for a company to violate Title VII’s ban on religious bias in the workplace, the employer would have to specifically know that that a job applicant needs an exception from a work rule to satisfy religious dictates. The Supreme Court ruled that this was a misinterpretation of what Title VII requires. As Lyle Denniston explains,

Even if the applicant does not inform the management of a religious practice, the 1964 civil rights law may be enforced against any employer who refuses to make an exception for that worker, when that refusal is based on at least a suspicion or hunch that the worker follows such a practice and wants to keep doing so, even if contrary to company policy.

What was the basis for that ruling?

Title VII’s “disparate-treatment provision” forbids employers from failing to hire an applicant because of the individual’s religion (which includes his religious practice). If an employer refused to hire someone because doing so would require them to accommodate a religious practice, then they would be violating Title VII. As Justice Scalia said, “Failing to hire for that reason is synonymous with refusing to accommodate the religious practice.” [Emphasis in original] Scalia added,

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Which Justices supported the ruling?

The decision was 8-1 in favor of Elauf. Justice Clarence Thomas was the only vote in favor of upholding the Tenth Circuit decision. In his dissenting opinion Thomas wrote,

Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.” Because the Equal Employment Opportunity Commission (EEOC) can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the Tenth Circuit.

Why should Christians care about this case?

While not every religious practice can be reasonably practiced at one’s job, those that can be accommodated should be accommodated. Just as no American should be required to set aside their conscience when they show up for work, there is no reason why non-disruptive religious practices—such as wearing a headscarf—should be excluded without sufficient cause. Religion is too important to be left at the door of a believer’s workplace.