The US supreme court has agreed to hear a case accusing the American clothing retailer Abercrombie & Fitch of refusing to hire a Muslim woman who wore a headscarf.
The suit, brought by the US Equal Employment Opportunity Commission, alleges that Samantha Elauf was not hired because she wore a headscarf that would have required a religious exemption from the company’s “look policy”.
Elauf interviewed at the company’s Abercrombie Kids store in Tulsa, Oklahoma, in 2008 for a position as a “model”, the equivalent of a part-time sales worker, when she was 17. The hiring manager, Heather Cooke, 23, interviewed Elauf and initially gave her a score that recommended hiring her.
Elauf wore a black hijab during her interview. She is a practising Muslim who has worn a hijab since she was 13 years old.
However, after consulting with a district manager, Cooke gave Elauf a low score in the “appearance and sense of style” category, after specifically asking about Elauf’s headscarf. The manager told Cooke that employees were not allowed to wear “hats” at work, and so declined to hire her, even though Cooke told the manager she assumed Elauf wore the scarf for religious reasons. Cooke told the district manager she did not ask about religion during the interview, in accordance with EEOC guidelines.
The EEOC sued on Elauf’s behalf, and a federal judge ruled against the company. The 10th US circuit court of appeals reversed that decision.
The case hinges on whether employees must explicitly inform prospective employers that they require a religious exemption, in this case for dress. Abercrombie argues that Elauf did not specifically request an exemption and thus one was not required, even though managers correctly assumed she wore the scarf for religious reasons.
“It is undisputed that Samantha Elauf did not inform Abercrombie that her religious beliefs required her to wear a headscarf when she was at work. It is axiomatic that an employer must have actual notice that an applicant’s mandatory religious practices conflict with an employment requirement,” attorneys for the company argued.
The EEOC argues that if “actual knowledge” of an employee’s religious beliefs is required by employers, companies could discriminate against employees because of perceived religious practices, so long as they do not have explicit statements from an employee.
“By holding that an employer may discriminate against a job applicant or employee based on practices that the employer correctly believes to be religious, so long as the employer does not have ‘actual knowledge’ of the need for religious accommodation … opened a safe harbour for religious discrimination,” argued attorneys for the EEOC, referring to an appeals decisions in favour of Abercrombie.
This is not the only case brought against Abercrombie & Fitch for religious discrimination.
Halla Banafa, a Muslim woman who applied to an Abercrombie Kids store in California, was asked about her hijab during an interview, and then not hired. Abercrombie argued that accommodating Banafa’s headscarf would place an undue hardship on its business.
Umme-Hani Khan was fired from Hollister, an Abercrombie subsidiary. She said she was dismissed for wearing a headscarf. She worked for several months at a California store before a district manager visited. She was later asked to remove her headscarf, refused, and was suspended and fired.
Both were awarded $71,000 in a joint settlement in September 2013.
The company’s stock dropped on Thursday on news that the highest court would take up Elauf’s case and has suffered over the last month. The stock hit a one-year high in August, at nearly 45 points on the New York stock exchange, but careened down to less than 35 by mid-morning Thursday.
Update: See “Jewish groups back Muslim scarf Supreme Court case”, JTA, 3 October 2014