The Supreme Court Makes A Decision In The Abercrombie Discrimination Case

Photo: Chip Somodevilla/Getty Images.
Update: As of this morning, the Supreme Court sent the Abercrombie & Fitch lawsuit back to a lower court when it was not able to conclude if Abercrombie & Fitch did, in fact, discriminate against potential employee Samantha Elauf back in 2008, according to CNN.

When we last discussed this case, a key issue being debated by SCOTUS was whether it was the employer or the job applicant who should be responsible for raising questions or concerns about religious observances — such as Elauf’s headscarf — that might need reconciling with employer requirements — such as Abercrombie & Fitch’s dress code. Today's decision, with an eight-to-one vote by the Supreme Court, put the responsibility on the employer. As CNN reports, since Elauf was not fully informed of the company’s policies regarding headscarves in her initial interview, she was not able to ask for any accommodations herself.

However, the company said in a statement: “While the Supreme Court reversed the Tenth Circuit decision, it did not determine that A&F discriminated against Ms. Elauf. We will determine our next steps in the litigation, which the Supreme Court remanded for further consideration. A&F remains focused on ensuring the company has an open-minded and tolerant workplace environment for all current and future store associates. We have made significant enhancements to our store associate policies, including the replacement of the 'Look Policy' with a new dress code that allows associates to be more individualistic; changed our hiring practices to not consider attractiveness; and changed store associates' titles from 'Model' to 'Brand Representative' to align with their new customer focus. This case relates to events occurring in 2008. A&F has a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs.”
This story was originally published on February 26, 2015.

Yesterday, The Supreme Court of the United States heard an employment discrimination case seven years in the making. It touches on some thorny issues: Alleged religious bias, the latitude a company has (or doesn't have) to impose a dress code on its employees, and the embattled brand Abercrombie & Fitch, which has been taken to task (and to court) over the years for its insistence on hiring to establish a uniform look.

You might remember the case from our previous story: In 2008, the then-17-year-old Samantha Elauf went to interview for a "sales model" position at Abercrombie Kids in Tulsa, OK while wearing a headscarf, a symbol of her Muslim faith. She did not land the gig.

At the time, Abercrombie's managers internally questioned whether Elauf's black hijab violated the brand's infamous "Look Policy," an internal document that generally promoted a preppy-casual East Coast collegiate vibe, and specifically prohibited wearing caps and black clothing. (The policy has since changed to permit headscarves, after two separate lawsuits involving hijab-wearing Muslim employees.) In the end, Abercrombie's district manager offered the following reasoning for denying Elauf a job (as an attorney paraphrased it in court yesterday): "If we allow this, then someone will paint themselves green and call it a religion."

Elauf is now a successful fashion blogger and store merchandising manager for Urban Outfitters. The suit against Abercrombie was brought on her behalf by the Equal Employment Opportunity Commission. The legal foundation for the EEOC's case surrounds Title VII of the Civil Rights Act of 1964, which stipulates that employers are not allowed to discriminate against potential hires based on their religious beliefs or practice. That's a given.
The critical questions, which stir deeper implications, are these: Did hiring managers know for a fact that Elauf's headscarf was worn for religious regions — and, if they were uncertain, should they have asked her during her interview? During yesterday's hearing, the attorney for A&F seemed to imply as much. In response, Chief Justice Roberts pointed out that a manager "would not ask any [other applicant] about religion." Therefore, he continued, "it seems that your solution causes more problems."

Or, was Elauf obligated to specifically mention her Muslim beliefs and explain her manner of dress in her interview, even if she wasn't fully aware of company policy? As Politico reported, Justice Alito brought up an important related point: Job applicants are not yet beholden to a company's dress code. “Maybe she’s just having a bad hair day, so she comes in with a headscarf, but she doesn’t have any religious reason for doing it,” he said. “Would you reject her for that? No. The reason she was rejected was because you assumed she was going to do this every day, and the only reason why...is because she had a religious reason.”

A spokesperson for A&F, in reference to the case, emphasized that the issue before the court is "about who has the burden to make requests" for an exception to a company's dress code. In an email to us, he wrote:

"This case relates to events occurring in 2008. A&F has a longstanding commitment to diversity and inclusion and, consistent with the law, has granted numerous religious accommodations when requested, including hijabs. The narrow issue before the Supreme Court is whether an employee who wants a religious accommodation must ask for one, or whether employers are obligated to guess and speculate about an employee's religion to ascertain the need for religious accommodation."
We'll continue to follow this story; with SCOTUS expected to deliver its ruling in June, there will be plenty of time to mull over the issues that fell on yesterday's high court. One thing's certain: The final verdict will have major repercussions for both hiring practices and employee rights. And, despite Abercrombie's policy and management changes, and attempts to rebrand, it'll be dealing with repercussions of the bad old days for a while yet.


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