Justices defend Muslim girl in employment dispute

WASHINGTON -- Supreme Court justices who have favored legal protections for religious beliefs and customs sharply questioned a lawyer for Abercrombie & Fitch Wednesday over the clothier's refusal to hire a headscarf-wearing Muslim girl.

The hour-long oral argument exposed the retailer and its "look policy" for sales associates to harsh criticism from both liberal and conservative justices. They appeared to reject its contention that the girl was turned down for her black hijab, not her religion.

The focus of the case was 17-year-old Samantha Elauf's 2008 job interview in Tulsa, Okla. The woman conducting the interview assumed she was wearing the headscarf for religious reasons -- but did not ask. She was found to be qualified, but a supervisor later ordered that Elauf be turned down.

Several justices said company officials clearly understood the headscarf was a religious garb. They did not buy Abercrombie's contention that it rejected Elauf simply because the "look policy" does not allow hats.

"Maybe she's just having a bad hair day, so she comes in with a headscarf, but she doesn't have any religious reason for doing it. Would you reject her for that? No," Justice Samuel Alito said.

"The reason that she was rejected was because you assumed she was going to do this every day, and the only reason why she would do it every day is because she had a religious reason."

How the high court resolves the case could have implications both for the employment opportunities granted religious minorities and the hiring practices used by companies large and small. For those reasons, it has risen to become one of the court's major cases this term.

Even so, the circumstances involved in Elauf's case lead to a narrower question: Must the job applicant request a religious accommodation, or should the employer recognize the need for it?

The federal government maintained that Abercrombie discriminated "when it intentionally refused to hire Samantha Elauf because of her hijab, after inferring correctly that Elauf wore the hijab for religious reasons."

Abercrombie & Fitch, backed by the U.S. Chamber of Commerce and other business groups, contended that employers should not be forced to inquire about a job applicant's religion for fear of appearing to discriminate.

That argument got some support from Chief Justice John Roberts, who worried that a dialogue about religious practices could lead to increased stereotyping.

"It seems that your solution causes more problems," he told Deputy Solicitor General Ian Gershengorn, who was representing the Equal Employment Opportunity Commission on Elauf's behalf.

Justice Antonin Scalia defended the company and the appeals court that ruled in its favor. If a job applicant is going to sue over a religious accommodation claim, he said, perhaps she should raise it during the job interview.

A federal district judge originally ruled for Elauf, but an appeals court reversed and said it was the job applicant's responsibility to ask for the exception – just as people with disabilities must under the Americans with Disabilities Act.

Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, color, religion, sex or national origin. The ban on religious discrimination includes observances and practices, unless the employer cannot reasonably accommodate them without undue hardship.

Abercrombie & Fitch describes its clothing as "rugged casual wear modeled after the preppy look of the Ivy League." Its abercrombie kids stores, like the one where Elauf applied, cater to pre-teens and middle-schoolers, while its Hollister outlets sell "casual clothing inspired by Southern California" to high-schoolers.

The clothier's "look policy" affects the type of clothing, jewelry and makeup its sales representatives can wear, including atop their heads. But it often grants exceptions upon request, including for head scarves.

"They don't have to accommodate a baseball cap," Justice Ruth Bader Ginsburg said. "They do have to accommodate a yarmulke."

The focus on the Ivy League's preppy look caused lots of smiles on the court, where all nine justices hail from Harvard or Yale.

What if a job applicant looked like "this mythical preppy" but wore a black blouse for her job interview, Alito said. Would the company have turned her down under the assumption that she would insist on black clothing?

On the other hand, he said -- warning that his example would sound like a joke -- what if a Sikh in a turban, a Hasidic Jew wearing a hat, a Muslim woman with a hijab and a Catholic nun in a habit all came in for job interviews. Would they have to specify it was for religious reasons in order for the employer to be on notice?

Abercrombie & Fitch is a noteworthy defendant in the case. It settled a lawsuit brought by black, Hispanic and Asian-American college students for $40 million a decade ago and pledged to diversify its hiring, promotion and marketing practices. Since then, the company says, it has gone from fewer than 10% non-white sales associates to more than 50%.

"A&F has a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs," the company said in a statement.