Did Abercrombie Discriminate Against an Applicant Because of Her Religion? Supreme Court Justices Hear Case

COMMENTARY Courts

Did Abercrombie Discriminate Against an Applicant Because of Her Religion? Supreme Court Justices Hear Case

Feb 26th, 2015 3 min read
COMMENTARY BY
Elizabeth Slattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

On Wednesday, the Supreme Court heard oral argument in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, an anti-discrimination case involving a Muslim teenager who applied to be a model at the clothing store.

Samantha Elauf was not offered a job and filed a complaint with the Commission, alleging that Abercrombie refused to hire her because at her interview she wore a headscarf, which is not allowed under the store’s style guidelines.

Title VII of the Civil Rights Act prohibits employers from discriminating based on race, color, religion or national origin in the hiring and firing of employees. This means employers must reasonably accommodate the religious practices of their employees (or prospective employees), unless an accommodation would cause an “undue hardship.” If an employer fails to provide such an accommodation, they can be found liable for intentional discrimination. The lower court decided that Abercrombie was not liable for discrimination because Elauf did not give the store explicit notice that she would require an accommodation from the style guidelines for religious reasons.

At the oral argument yesterday, the justices questioned how an employer should know whether there would be a conflict between a job candidate’s religious beliefs and the employer’s rules. Is it enough that the employer assumes the job candidate has a religious belief that would require accommodation?

The government’s lawyer framed it this way:

[I]n a situation like this in which it’s an applicant applying for a position, and the employer suspects…that there’s a religious…conflict, the employer has two options. It can assume there is no conflict…and make the hiring decision on the merits…Alternatively, if the employer feels like there’s enough concern about how [the applicant] would be able to perform, they can…start a dialogue.

Justice Elena Kagan tried to pinpoint what level of certainty an employer must have in order for its failure to accommodate to rise to the level of discrimination: “It could be certain, it could be less than certain, it could be a lot less than certain” is it discrimination “as long as the employer says there’s some chance, and I’m not going to hire…because of that chance”?

A way to get around this issue, Justice Antonin Scalia suggested, is to adopt the lower court’s rule:

[I]if you want to sue me for denying you a job for a religious reason, the burden is on you to say, I’m wearing the headscarf for a religious reason…Once you notify the employer that it’s for a religious reason, you got ‘em.

But where the burden lies is one of the main points of contention in this case. Should a job candidate be required to mention a potential conflict between the employer’s rules and her religious beliefs, or should the employer be responsible for bringing up any potential conflict? While it may seem easy for an employer to identify a religious practice that involves outward appearance (as in this case), Abercrombie’s lawyer pointed out the Court will be “devis[ing] a rule that’s going to apply across the board”—for cases that involve religious practices other than clothing and appearance.

Supporters from The Council on American-Islamic Relations demonstrate outside the U.S. Supreme Court after the court heard oral arguments in EEOC v. Abercrombie & Fitch at the U.S. Supreme Court in Washington, D.C. on Feb. 25, 2015. (Photo: Kevin Dietsch/UPI/Newscom)

Chief Justice John Roberts expressed concern that putting the burden on the employer would encourage stereotyping, causing more problems than it would solve:

Let’s say you have someone of Middle Eastern appearance who shows up for the interview with a beard. And the employer, like Abercrombie & Fitch, they don’t like beards. They don’t want their models…having beards. But he doesn’t know if the beard is there for a religion reason or not. So you think it’s better to…start asking this applicant questions he would not ask anyone else about religion?

Justice Kagan put it another way:

[Y]ou’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conservation, to ask some questions…But 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. 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.

Abercrombie’s lawyer responded that the issue is not having “awkward conversations,” but, rather, this would “lead employers to treat people differently based on their religion, which is precisely the opposite of what Title VII wants.”

The Roberts’ Court has been increasingly protective of freedom, from Hosanna Tabor to Hobby Lobby to the recent decision in Holt v. Hobbs against a prison’s ban on beards. Thus, the Court may err on the side of caution and rule in favor of the Equal Employment Opportunity Commission and Samantha Elauf.

This piece originally appeared in The Daily Signal