Court hears oral arguments in EEOC v. Abercrombie

By Lauren Markoe, Religion News Service with BJC Staff Reports

WASHINGTON — Samantha Elauf was a teenager who loved clothes and applied to work in an Abercrombie & Fitch Kids store in her native Tulsa, Oklahoma, in 2008. But Elauf, a Muslim, also happens to wear a headscarf. So she didn’t get the job.

No one ­— not even Abercrombie & Fitch — disputes that her hijab cost her the job offer. And the law, Title VII of the Civil Rights Act of 1964, states that an employer cannot deny employment based on a worker’s religious practice, unless accommodating it would prove terribly burdensome.

At the time, Abercrombie had a “no caps” policy for its sales associates. When the U.S. Supreme Court heard Elauf’s case on Feb. 25, Justice Ruth Bader Ginsburg summed up the religious exemption required of the company: “Title VII doesn’t require accommodating baseball caps, but it does require accommodating to religious practices.”
So why did this case make it all the way to the Supreme Court?

Elauf, though she won in a federal district court in 2011, lost in a federal appeals court in 2013. At the 10th U.S. Circuit Court of Appeals in Denver, the company’s argument — that it shouldn’t have had to give a religious accommodation because Elauf never asked for one — found traction.

During oral arguments, Abercrombie lawyer Shay Dvoretzky made it clear that he did not think companies should be delving into an applicant’s religious practice in order to determine whether the person might want an accommodation. Having a standard, such as “correct belief” or suspecting a possible religious conflict “will inevitably lead employers to stereotype,” he said.

It may lead to an “awkward conversation,” agreed Justice Elena Kagan. But the alternative is what happened to Elauf: a prospective employee gets no opportunity to discuss an accommodation. She is simply not given the chance, or the job.

“Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem?” Kagan asked Dvoretzky.

The question the justices need to decide in this case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., is whether an employer is guilty of religious discrimination only if a job applicant has expressly asked for an accommodation. The EEOC, which enforces federal employment discrimination laws, has represented Elauf as her case has risen through the courts.

Like Kagan, other justices signaled discomfort with Abercrombie’s stance that it was not liable because Elauf was not more vocal. Justice Clarence Thomas, who chaired the EEOC from 1982 to 1990, maintained his usual silence during oral arguments.

“Many members of the court seemed sympathetic to the EEOC’s position and Ms. Elauf,” said Daniel Mach, director of the American Civil Liberties Union’s Program on Freedom of Religion and Belief, who attended the arguments. “It’s a clear case of religious discrimination, and I’m optimistic that the court will agree.”

Groups that filed and joined legal briefs on behalf of Elauf include the Baptist Joint Committee, Becket Fund for Religious Liberty, American Jewish Committee and Council on American-Islamic Relations. Major business groups sided with Abercrombie, including the U.S. Chamber of Commerce.

Some legal observers said the 10th Circuit, in ruling for Abercrombie, realized that it does not make sense to make companies responsible for figuring out prospective employees’ religious needs.

“As an employer, you should not ask applicants what their religion is or make assumptions as to what their religion might be,” said Laura O’Donnell, who represents companies in the employment practice of Texas firm Haynes and Boone. “EEOC guidelines make that very clear.”

BJC General Counsel K. Hollyn Hollman said religion should not disqualify anyone from employment. “In many employment contexts, an individual’s religious needs can be met more easily than an employer first assumes,” Hollman said. “This case is about making sure prospective employees are not categorically disqualified from work opportunities based upon religion.”

Elauf, now 24, made a statement on the Supreme Court steps after oral arguments, read by an EEOC spokeswoman.

“No one had ever told me that I could not wear a headscarf and sell clothing,” she said. “I am not only standing up for myself, but for all people who wish to adhere to their faith while at work.”


From the March 2015 Report from the CapitalClick here to read the next article.

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