WASHINGTON — The Supreme Court heard arguments Wednesday in a civil rights case involving a Muslim woman who was denied a job at an Abercrombie & Fitch Co. store because she wore a head scarf that did not comply with the retailers’ clothing policy.
At issue is whether an employee or job applicant bears the burden of requesting a religious accommodation versus how much knowledge an employer needs about a potential religious conflict before making employment decisions.
The widely watched case before the High Court stems from a lawsuit the Equal Employment Opportunity Commission filed against Abercrombie in 2009 on behalf of then-17-year-old Samantha Elauf, who, in 2008, was denied a sales associate position at an Abercrombie Kids store in Tulsa, Okla.
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Elauf wore a black head scarf, or hijab, to the job interview but did not request a religious accommodation for wearing the scarf if she got the job. Islamic practice often requires post-adolescent Muslim women to wear a head scarf when in the presence of adult males outside of their immediate family.
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A&F subsequently denied her job application, based on the grounds that wearing a scarf violated its “Look Policy” that requires sales associates to wear clothes similar to those sold in its stores.
The U.S. District Court for the Northern District of Oklahoma granted summary judgment to the EEOC in 2011 and allowed a jury trial that awarded Elauf $20,000 in damages. But the 10th U.S. Circuit Court of Appeals reversed the lower court’s decision in favor of A&F in 2013.
In its appeal and petition, the EEOC asked the Supreme Court to weigh whether employers are only liable under a Civil Rights-era law for firing an employee or refusing to hire an applicant only if they have “explicit or actual knowledge” from them that a “religious accommodation” or exception to its policies is required. A&F argued in court documents that it did not have “actual knowledge” of a “religious conflict from any source” and that “the true issue…is whether an applicant adequately informs a prospective employer of the need for a religious accommodation under Title VII simply by wearing an item of clothing which can be but is not always associated with a particular religion.”
Deputy Solicitor General Ian H. Gershengorn, representing the EEOC, said it disagreed with the 10th Circuit’s decision that imposed two requirements on religious accommodation claims that eliminate liability for employers’ refusal to accommodate, including that the applicant verbally request accommodation and that the employer know, rather than “just correctly understand, the need for accommodation.”
According to court documents, the woman who interviewed Elauf later testified that she assumed Elauf was wearing the head scarf for religious reasons and asked a district manager for guidance on company policy regarding black head scarves.
Gershengorn called it a “particularly straightforward case.” “What the employer did here was act upon the assumption that Ms. Elauf needed to wear the head scarf for religious reasons and yet…it later claimed refuge that it didn’t have sufficient knowledge or certainty to actually have initiated the accommodation process that Congress wanted…We think there is sufficient knowledge, notice, when somebody understands that — when somebody assumes that a practice is religious and then acts upon it, that that is sufficient,” he added.
But Justice Antonin Scalia said: “You could avoid those hard questions, whether it’s ‘understand, believe, suspect,’ by adopting the rule that the Court of Appeals adopted here, and this is 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 head scarf for a religious reason or I’m wearing the beard for a religious reason,’” Scalia said. “That avoids all problems. Once you notify the employer that it’s for a religious reason, you got ’em.”
Justice Samuel Alito said, “I want to know…whether the employee has to say, ‘I’m wearing this for a religious reason’ or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.”
Shay Dvoretzky, counsel for A&F, replied that there are some circumstances where it is more obvious than others, but argued that creating such a broad-based rule for all cases, considering that some cases are ambiguous, would be “entirely unadministrable for courts, employers and applicants alike.”
Dvoretzky said the question before the court is “at what level of knowledge does the employer have to have before the duty to accommodate is triggered.”
“For 40 years, the EEOC’s own guidance has put the burden to initiate the conversation on the employee because the employee knows,” he asserted.
But Justice Ruth Bader Ginsburg countered that in this case, the job applicant did not know the company’s policy. According to court documents, the interviewer did not mention to Elauf that head scarves were prohibited under A&F’s policy.
“Here, the employee had no reason to think that there was anything offensive about her dress,” Ginsburg said. “How can she say, ‘By the way, I have a religious reason for wearing this head scarf,’ when from everything, from all appearances, the employer doesn’t care; it’s OK to wear a head scarf.”
In response, A&F’s Dvoretzky said, “The employer can’t just disclose the policy, that isn’t a solution because that is asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice.”
The Supreme Court is expected to rule on the case by the summer.