So starts the non-joke of U.S. Supreme Court Justice Samuel Alito during oral argument on February 25th in a case involving the conflict between a hijab and the “Look Policy” of preppy clothing retailer Abercrombie & Fitch.
Wait for the punchline…
I don’t know jack about Abercrombie. But I was impressed when I saw a massive Moose head hanging behind the register the only time I stepped foot in a store to outfit my son with a holiday gift card. Because I play on a beer league ice hockey team called the Moose … well I was easily impressed.
Samantha Elauf was probably not as enamored with the Moose head. She was seventeen years old when she applied to an Abercrombie store in Tulsa, Oklahoma for a position as a “model” (the title given to Abercrombie hipster doofus sales associates). It seems these “models” start by working in stores and then become eligible to be cast for Abercrombie’s marketing campaigns.
Ms. Elauf appeared at the interview wearing a hijab – a Muslim headscarf. During the interview, no one mentioned the headscarf, Ms. Elauf’s religion or that Abercrombie’s “Look Policy” prohibits the wearing of caps, which presumably includes head scarves. Apparently everyone just “looked” the other way.
OK… Not funny. But neither is this case.
The problem that paved the way to the Supreme Court, was that Abercrombie refused to hire Ms. Elauf because it assumed she wore the scarf for religious reasons and that her religious practice would not allow her to comply with its “Look Policy”.
While the first assumption was correct, the second was (a) something they should have discussed with Ms. Elauf and (b) something Abercrombie had a legal obligation to accommodate unless doing so would impose an undue hardship on the company – which they’d likely have a hard time proving.
This was not a big money case. After trial, Ms. Elauf was awarded all of $20,000. Nevertheless, appeals brought this case to the High Court.
I doubt this case would ever have seen the inside of a courtroom had Audrey Hepburn been the scarfed Abercrombie model applicant. Would Abercrombie have assumed Ms. Hepburn wore a scarf for religious reasons and refused her an accommodation? Probably not. And therein lies the problem.
Abercrombie presumed Ms. Elauf wore the scarf and would continue to do so every day for religious reasons without asking her the question or exploring whether an accommodation of her religious practice was required or feasible.
Or maybe I’m wrong … perhaps Abercrombie would have decided Ms. Hepburn was not cool enough to be an Abercrombie model either.
The oral argument before the Supreme Court reveals how a seemingly simple case can confuse even our most esteemed jurists when it presents tough legal questions at the core of Title VII of the Civil Rights Act of 1964 – the federal law that prohibits discrimination in employment based on religion.
Among the mention of beards, yarmulkes, baseball hats, the Yankees – and yes, scarves and Nuns – important questions were raised concerning how much an employer knows, should know, or should presume, about an applicant based on their appearance.
If you’ve never delved into a Supreme Court case before, this is one to check out. Some of the banter even drew chuckles from those in attendance. Click here for a cool app, brought to you by the Oyez Project at Chicago-Kent College of Law, which lets you listen to the oral argument and follow along with a scrolling transcript.
Abercrombie’s argument – which did not sit well with a majority of the Supremes – was that it was under no obligation to ask Ms. Elauf about her religion or whether she could comply with its Look Policy because to do so would create an “administrative rat mess” potentially subjecting the retailer to claims of discrimination.
The Deputy Solicitor General, arguing for the U.S. Equal Employment Opportunity Commission, which sued Abercrombie on Ms. Elauf’s behalf, pointed out she had no way of knowing the company’s “Look Policy” prohibited scarves. Therefore, Ms. Elauf had no reason to raise her religion or the need for any accommodation of her religious practices during the interview.
Essentially, it seems the Court must answer the age-old question: who goes first. Based upon the questions from the bench, the answer seemingly lands in Abercrombie’s ballpark. And rightfully so.
Bronx native and lifelong Yankees fan Justice Sonia Sotomayor hit a home run when she posed an obvious solution: why not just inform the applicant of the policy and simply ask, “You have a problem with that?”
We can expect the punch line answer in June.
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Ralph A. Somma is a Long Island, NY employment lawyer who handles cases involving discrimination in the workplace.
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About the Author: Ralph A. Somma Ralph A. Somma is an experienced employment lawyer from Long Island, New York. For over 20 years, Ralph has been working to enforce workplace rights in New York and Long Island.