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SCOTUS swats down Abercrombie headscarf case

SCOTUS swats down Abercrombie headscarf case

East Coast collegiate style? Non-constitutional. Sort of.

Yesterday, fledgling retailer Abercrombie & Fitch lost their anti-hijab case in the Supreme Court.

Amy provided background when SCOTUS heard oral arguments in February:

Back in 2008, Samantha Elauf, an observant Muslim, applied and was interviewed for a job at teen-friendly retailer Abercrombie & Fitch. She impressed the hiring manager, but when the time came to make a decision, the manager decided not to hire Samantha because she had concerns about whether or not Samantha would insist on wearing her headscarf to work. This would have been a violation of Abercrombie’s “Look Policy,” which dictates that employees conform to a strict set of style guidelines that specifically prohibit head coverings and black clothing.

Abercrombie’s “Look Policy” was summarized as, “classic East Coast collegiate style.”

After Samantha failed to get the job, a friend of hers already employed with the retailer asked the hiring manager for her reasons, and the manager indicated that the headscarf played a part in her decision.

…The EEOC sued on Elauf’s behalf on grounds of religious discrimination, and down came a $20,000 award in favor of her case. The 10th circuit overturned the decision, saying that because Elauf never asked for an accommodation, the company wasn’t liable for not offering one; the Court was uncomfortable holding employers to a standard that would require them to ask about a religious exemption they may not know an employee needs.

The 8-1 decision was one Justice Antonin Scalia called, “really easy.” Justice Clarence Thomas dissented.

Adam Liptak reported for the New York Times:

Justice Scalia, writing for seven justices, said Ms. Elauf did not have to make a specific request for a religious accommodation to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring.

“Title VII forbids adverse employment decisions made with a forbidden motive,” Justice Scalia said from the bench, “whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”

Justice Scalia elaborated on this point in his written opinion. “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” he wrote.

…Justice Samuel A. Alito Jr. voted with the majority to reverse the appeals court’s decision, but he did not adopt the majority’s reasoning. “I would hold,” he wrote, “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.” He added that in this case there was “ample evidence” that “Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a religious reason.”

In dissent, Justice Thomas wrote that the company’s dress code was a neutral policy applied evenhandedly that could not be the basis for a discrimination lawsuit.

E.E.O.C. v. Abercrombie & Fitch Stores, Inc. is being hailed as a landmark religious liberty case by groups made up of religious minorities like Sikhs, Jews, and Muslims, Liptak pointed out. “It would help protect their members against employment discrimination based on their members’ religious attire, head coverings or beards,” he explained.

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I do wonder where this will lead. Will female muslim lifeguards be allowed to wear full body coverings and a hijab? Firefighters? I know the military is becoming more lenient, but at what point does their right (ie. preference, as this is not a command of the koran) interfere with safety/security?

quiksilverz24 | June 2, 2015 at 7:49 am

Employment 101: Never talk about people you did not hire. Never give a reason about the person that caused the non-hire. Only say “We decided to move forward with other candidates.” Leave it at that.

I don’t believe the Civil Rights Act requires reasonable accommodation for ideological reasons, so we are completely on the wrong boat here. Islam is not a religion, but a fascist and hostile ideology disguised as a religion, and therefore should not enjoy any protections afforded to a religion. Case closed.

    platypus in reply to bobtuba. | June 2, 2015 at 9:32 am

    The problem is that legally one must allege that notion and then prove it with evidence. Most attorneys are way too timid to do what is needed to get a ruling on it.

      Skookum in reply to platypus. | June 2, 2015 at 12:39 pm

      Why should Islam receive the benefit of doubt? Adherents should be required to prove their dysfunctional ideology is a religion, and I doubt they could, because it conflicts with natural law in so many ways.

        platypus in reply to Skookum. | June 3, 2015 at 12:03 am

        I don’t know how much civil procedure you know so if this explanation is stuff you already know, forgive me.

        In order to make a legal claim in the form of a complaint, one must allege jurisdiction & venue, must allege the facts that support a recognized tort, must name the tortfeasors, and must allege that the plaintiff was damaged by the tortfeasors.

        Consequently, any of those elements can be challenged via an affirmative defense (alleged in an answer to complaint). If someone claims that their religious rights were violated, and you fail to dispute it, it is law of the case and cannot be examined by the trial judge nor can it be raised on appeal.

        That’s what I was talking about – attorneys need to challenge these assumptions that are really just allegations subject to proof. If they don’t, well then the beat goes on.

Yesterday, fledgling retailer Abercrombie & Fitch…

In what sense is Abercrombie & Fitch, founded in 1892, a “fledgling” retailer?


    …is being haled as a landmark religious liberty case

    I think the word you want here is hailed.

    The Friendly Grizzly in reply to Amy in FL. | June 4, 2015 at 6:27 pm

    The one founded in 1892 was a a sporting goods store. It sent BK decades ago, and the dress-your-daughter-like-a-whore chain bought the rights to the name in an asset sale. There is absolutely no connection to the original firm beyond the name.

You hire sales people who can appeal to your target buyers. If your target is Muslim women with their head tied up you hire them. If your target market is young collegiate people types not so much. This brand is known for their sexy (and questionable taste) ads. Having women with their head covered and wearing baggy black clothes is not exactly conducive with their brand. Next the muslim women will want to be in tractor sales.

    Elliott in reply to Elliott. | June 2, 2015 at 10:10 am

    You don’t use sales people who think their customers are an abomination to Allah. It is off putting and they won’t come into your store. I suspect that is the intent anyway of the suit is to close them down for being unclean or something like that.

      MattMusson in reply to Elliott. | June 2, 2015 at 10:51 am

      So the questions remain – Must you give people the Sabbath off? And – must you hire them if their religions forbids them to sell your products?

        Sammy Finkelman in reply to MattMusson. | June 2, 2015 at 3:39 pm

        It depends upon whetehr a reasonable accomodation is possible or not.

        What happened here is that Abercrombie & Fitch did not have a dress code, which she then could have asked for an exception, but wanted girls who all by themselves would wear the kind of clothing they liked. The last thing they wanted was to tell goirls what they were looking for.

        Samantha Elauf did not identify herself as a Moslem, but, fearing discrimination, tried to disguise it, and dressed in a way in which it was not obvious that it was because of the religious tenets she adhered to, but taht did affect her choice of clothing.

        She had no idea that they were discriminating on the basis of the clothing that femakles who showed up for interviews chose to wear.

        The discrimination on the basis of sex was apparently regarded as job related. (women have to change clothing there etc.)

    lc in reply to Elliott. | June 2, 2015 at 5:30 pm

    True. So why would this muslim woman want to work at A&F?
    Test case?

If we are going to get a test case, what about Hooter girls with Hajabs?

CloseTheFed | June 2, 2015 at 11:24 am

The entire problem here, is the loss of property rights occasioned by our never-ending attempt to assimilate blacks.

If these companies had actual freedom, they could hire and fire whomever they wanted, and we would be free of these muslims who will never integrate into society.

I for one, would never want to hire, or even speak with, a muslim. When one tries to wait on me in a commercial establishment, I refuse to deal with them.

NC Mountain Girl | June 2, 2015 at 11:45 am

This case has a couple of ironies. One, if you look at the company’s website one of the requirements for every in-store position listed is that the candidates promote diversity and inclusion. Like most on the left, inclusion means an agenda that favors a narrow group. In the fashion industry those words often mean the company promotes the heteronormality agenda.

The second is that the “classic East Coast collegiate style” has long celebrated scarves. Any true female preppie knows how to pull the 36″ Hermes scarf off the strap of her Coach bag, fold it into a triangle, whip it around her head, cross the tails around her neck and knot it there to protect her hair when the wind whips up at a polo match of football game or when she is behind the wheel of her convertible. Indeed, it is known as the Grace Kelly wrap after an icon celebrated for ezquisite taste.

If I read this correctly, it wasn’t over her refusing to adhere to the dress code, rather the employer jumping to that conclusion based on the knowledge that she was muslim.

If I don’t hire a one armed man because I assume he can’t juggle or I don’t hire a Muslim cleric because I assume he will deem juggling to be un-Islamic, I am not being fair to the candidate.

Is this the same Supreme Court that has a good chance of ruling that everyone, regardless of religious beliefs, must support a fundamental change in the age-old definition of the primordial social institution — while a business may not enforce a suitable dress code?

…I thought this was a highly technical ruling that the plaintiff need not demand a religious exception before filing a lawsuit, which creates the catch-22 of, what if she is disqualified from the hiring process before she makes such a demand?

From what I read, the Supreme Court didn’t touch the issue whether she was actually discriminated against at all, only that she need not have made a preemptive strike to seek relief under the law.. provided she has suffered actual discrimination for her religion. Which is someone else’s job to figure out.

Although the headscarf is current Islamic fashion, I don’t believe the Quran actually requires it. Therefore it should not be considered a religious necessity.
Kimberlee Kaye, was this part of A&F arguments?