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Supreme Court Hears Oral Arguments in Abercrombie Hijab Case

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By Mark Wilson, Esq. on February 26, 2015 9:20 AM

The Supreme Court heard oral arguments Wednesday in EEOC v. Abercrombie and Fitch Stores, the case about a Muslim teenager, Samantha Elauf, who interviewed for a job at an Abercrombie store while wearing a headscarf.

Abercrombie chose not to hire her explicitly because of the headscarf, assuming that she would need a religious accommodation, which it didn't want to grant, because Abercrombie's dress code policy prohibits head wear. The EEOC claimed that the employer discriminated based on its assumption that she would need an accommodation without ever asking Elauf.

Petitioner: Don't Make Assumptions

The problem is that Elauf never asked for an accommodation, partly because, as a prospective employee, she didn't yet know what the policy was. The justices wanted to know from the outset whether the employer should presume an accommodation is necessary or whether the employee has to affirmatively ask for one in order for Title VII to kick in. Is an employer on notice that a religious accommodation is warranted when an employer should reasonably be aware, or when the employee says something?

Ira Gershengorn, representing the Solicitor General, said that the appropriate response from an employer faced with a possible religious issue would be to "assume that [there] isn't a religious problem, to not engage in the stereotyping and assume that the person could comply as they would with somebody who was wearing a headscarf or something else for not religious reasons."

He also suggested that the interviewer should have observed the headscarf, pointed out to Elauf that Abercrombie doesn't allow head wear, and then asked if she could follow that policy. Instead, he said, they assumed without ever asking that she wouldn't be able to follow the policy.

Respondent: 'Suspecting' Religion Is Unworkable

When it came to question Shay Dvortezky, representing Abercrombie, the justices wanted to know whether the burden should be placed on the employee to speak up and say, "I'm wearing this for a religious reason." That's what the Tenth Circuit said, and Dvortezky said that's the way it should be.

The justices weren't so sure. Dvortezky also got challenged on her characterization of the law because, quite simply, Elauf didn't know that headscarves weren't allowed. (The best Dvortezky could come up with to show that she did know is that (1) Elauf knew Abercrombie had a dress code and (2) she knew Abercrombie didn't sell headscarves. That's a pretty thin connection if you're trying to conclude that she knew Abercrombie had an affirmative policy for staff members against head wear.)

There was also a concern about the level of knowledge an employer needed in order to show Title VII discrimination. Such discrimination has to be intentional, but Dvortezky implied that anything short of the employee saying to the employer, "I'm Jewish" and the employer not hiring the employee wouldn't qualify.

The justices thought there was definitely a way to show to a reasonable certainty that someone was being denied a job for religious reasons, even as Dvortezky called their rule "unadministrable" because there was no guidance as to the level of certainty required. Otherwise, employers would be able to fire someone because of religion as long as the employer didn't have absolute certainty as to the employee's religion.

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