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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