High Court Tumble for A&F in Headscarf Case

      WASHINGTON (CN) – Abercrombie & Fitch must pay after deciding not to hire a teenage Muslim girl because of her headscarf, the Supreme Court ruled Monday.
     Samantha Elauf was 17 in mid-2008 when she applied for a sales job at an Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Okla.
     Abercrombie calls its sales associates “models,” and holds them to a “Look Policy” that involves showcasing the preppy brand. Though the policy prohibits models from wearing black clothing or caps, it offers no definition of the term cap.
     Elauf had worn a traditional veil for Muslim women known as a hijab since she was 13. A friend of Elauf’s who already worked at Abercrombie asked an assistant manager at the store whether Elauf could wear her scarf to work if she got the job.
     Noting that a different employee wore a yarmulke, the supervisor said a non-black headscarf would be fine.
     The policy on headscarves never came up when a different assistant manager interviewed Elauf and scored her style as a 6, amounting to a recommendation that the store hire the applicant.
     When that supervisor sought approval for Elauf’s hijab, however, a district manager found the headscarf inconsistent with Abercrombie’s look policy.
     Though the woman who conducted Elauf’s interview testified otherwise, the district manager later told the court that he did not know he was being asked about a scarf worn for religious reasons.
     The interviewer meanwhile said she received orders to change the score card she had filled out on Elauf, thus ensuring the girl would not be recommended for hire.
     After Abercrombie declined to hire Elauf, the Equal Employment Opportunity Commission filed suit.
     A jury ultimately awarded the EEOC $20,000 in damages, but the 10th Circuit reversed last year.
     It said Abercrombie should have been awarded “summary judgment as a matter of law because there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or ‘hijab’ for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy.”
     The Supreme Court agreed last year to review the case, and the justices were nearly unanimous in reversing Monday based on Title VII, a section of the Civil Rights Act that bars employers from refusing to hire applicants to avoid accommodating a religious practice that it could accommodate without undue hardship.
     An applicant need not inform the employer of her need for an accommodation for this prohibition to apply, the court found.
     The ruling emphasizes that Title VII “prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.” (Emphasis in original.)
     “A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability,” Justice Antonin Scalia wrote for the court.
     In a concurring opinion, Justice Samuel Alito noted that his colleagues have reserved “decision on the question whether it is a condition of liability that the employer know or suspect that the practice he refuses to accommodate is a religious practice.
     “In my view, the answer to this question, which may arise on remand, is obvious,” Alito wrote. “I would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”
     Were there no knowledge requirement, “it would be irrelevant in this case whether Abercrombie had any inkling that Elauf is a Muslim or that she wore the headscarf for a religious reason,” Alito wrote.
     “That would be very strange,” he continued.
     Alito posed the hypothetical where an interviewer thought Elauf was wearing the scarf for a secular reason.”
     “Suppose that nothing else about Elauf made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason,” he wrote. “If ‘§2000e-2(a)(1) does not impose a knowledge requirement,’ Abercrombie would still be liable. The EEOC, which sued on Elauf’s behalf, does not adopt that interpretation, and it is surely wrong.”
     Though Abercrombie said its policy is neutral because it treats religious and secular practices the same, Scalia said “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices.”
     “Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of such individual’s’ ‘religious observance and practice,'” Scalia continued. “An employer is surely entitled to have, for example, a noheadwear policy as an ordinary matter. But when an applicant requires an accommodation as an ‘aspec[t] of religious … practice,’ it is no response that the subsequent ‘fail[ure] … to hire’ was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”
     Justice Clarence Thomas dissented on this point, saying that the “mere application of a neutral policy cannot constitute ‘intentional discrimination.'”
     “To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith,” Thomas wrote. “But that is a classic case of an alleged disparate impact. It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company’s Look Policy. Because I cannot classify Abercrombie’s conduct as ‘intentional discrimination,’ I would affirm.”
     The majority had shut down Abercrombie’s argument, however, that the EEOC’s claim is one of disparate impact, not disparate treatment.
     “That might have been true if Congress had limited the meaning of ‘religion’ in Title VII to religious belief – so that discriminating against a particular religious practice would not be disparate treatment though it might have disparate impact,” Scalia wrote. “In fact, however, Congress defined ‘religion,’ for Title VII’s purposes, as ‘includ[ing] all aspects of religious observance and practice, as well as belief.’ Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”

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