Justices: Retailer Can't Refuse To Hire Someone Because She Wears Hijab

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Justices: Retailer Can't Refuse To Hire Someone Because She Wears Hijab

1:31pm Jun 02, 2015
Samantha Elauf outside the Supreme Court after the court in February 2015.
Samantha Elauf outside the Supreme Court after the court in February 2015.
Chip Somodevilla / Getty Images

The U.S. Supreme Court ruled Monday that Abercrombie & Fitch violated the nation's laws against religious discrimination when it refused to hire a Muslim teenager because she wore a headscarf.

Samantha Elauf, 17, applied for a job selling clothes at the Abercrombie Kids store in Tulsa. She long had worn a hijab — a headscarf — for religious reasons, and she wore the black scarf when she was interviewed by the store's assistant manager.

She was highly rated and recommended for hiring — but the regional Abercrombie manager ordered her score downgraded because of her headscarf, and she was not hired.

"I was a teenager who loved fashion and was eager to work for Abercrombie," she said. "Observance of my faith should have not prevented me from getting a job."

So Elauf filed a complaint with the Equal Employment Opportunity Commission, and the agency took Abercrombie to court.

There the retailer defended its action, citing its so-called look policy, which it described as "a classic East Coast collegiate style of clothing." Elauf's dress for the interview — a T-shirt and jeans — fit in well with that policy, but the headscarf did not.

Abercrombie noted its look policy did not allow caps, terming them "too informal for the image we project."

The retailer further maintained that if Elauf wanted an exception to allow her to wear the headscarf, she was responsible for making the case for a religious exception at the time of her job interview.

On Monday the Supreme Court rejected those arguments by an 8-to-1 vote.

In announcing the court's decision, Justice Antonin Scalia called the case easy and straightforward: Under the federal law banning discrimination based on religion, "an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."

Elauf was elated.

"I'm glad that I stood up for my rights, and I'm grateful to the Supreme Court for today's decision," she said. "I hope that other people realize this type of discrimination is wrong."

Some in the business community, however, were disheartened by the decision.

Karen Harned, a legal expert with the National Federation of Independent Business, said small businesses may find it difficult to implement the court's decision. In particular, Harned noted that many small businesses do not have lawyers or HR professionals on staff to guide them.

Although civil rights laws like one "may seem easy to the person that is not actually in the trenches working with them every day," she said, they aren't simple for small-business owners. "They can get easily tripped up."

EEOC General Counsel David Lopez responded that the rules for employers are not that difficult and that the law requires an accommodation for religious practices unless the accommodation would pose an undue burden on the employer. He said that to refuse to make a religious accommodation, an employer would have to show that an accommodation "would actually impact its operations in a meaningful way."

Since the Elauf case began — engendering considerable publicity — Abercrombie has dropped its no-headscarf policy. In a statement on Monday, Abercrombie said it has replaced its look policy with a new dress code that allows associates to be "more individualistic." The company also said it has changed its hiring practices "to not consider attractiveness."

Copyright 2015 NPR. To see more, visit http://www.npr.org/.

Transcript

MELISSA BLOCK, HOST:

The U.S. Supreme Court issued two important decisions today involving individual rights in the 21st century. One case took up the question of what constitutes a threat on Facebook. The other tested what constitutes religious discrimination in the workplace. Here's NPR legal affairs correspondent, Nina Totenberg.

NINA TOTENBERG, BYLINE: The religious discrimination case was brought by Samantha Elauf, a 17-year-old girl born and bred in Oklahoma. A Muslim, she'd worn a headscarf since she was 13 and continued to do so when she applied for a job at an Abercrombie and Fitch kids store in Tulsa. Her interview went well. She received a high score and was recommended for hiring. But the regional Abercrombie manager ordered the score downgraded because of Elauf's headscarf, and she was not hired. Samantha Elauf...

SAMANTHA ELAUF: I was a teenager who loved fashion, and I was eager to work for Abercrombie. Observance of my faith should have not prevented me from getting a job.

TOTENBERG: So she filed a complaint with the Equal Employment Opportunity Commission, and the agency took Abercrombie to court. There, the retailer defended its actions, citing its so-called look policy. Elauf's dress for the interview - a T-shirt and jeans - fit in well with that policy which Abercrombie described as a classic East Coast collegiate style of clothing. But her headscarf did not. Abercrombie noted that the look policy does not allow, quote, "caps," terming them too informal for the image we project. Abercrombie further maintained that if Elauf wanted an exception to allow her to wear her headscarf, it was up to her to make the case for a religious exception at the time of her job interview.

Today, the Supreme Court rejected that argument by an 8 to 1 vote. In announcing the court's decision, Justice Antonin Scalia called the case easy. Under the federal law banning discrimination based on religion, the rule is straightforward, he said. An employer may not make an applicant's religious practice a factor in employment decisions. Elauf was elated.

ELAUF: I'm glad that I stood up for my rights. I'm grateful to the Supreme Court for today's decision and hope that other people realize that this kind of discrimination is wrong.

TOTENBERG: But the business community was definitely displeased, saying that small businesses, in particular, could find it difficult to implement the court's ruling as they often do not have in-house lawyers to guide them. A footnote to the case is that Abercrombie has already dropped its no-headscarf policy. In a statement today, it said it has replaced the look policy with a new dress code that allows associates to be more individualistic. The court's second decision today was more of a blood-and-guts ruling, though it came under the general heading of a free-speech case.

At issue was a question of increasing importance in the social media age. What constitutes a threat on Facebook? But the court dodged any constitutional ruling involving the First Amendment right of free speech and even sliced its statutory interpretation so thin that critics said the decision would only cause more confusion, not less.

The case was brought by Anthony Elonis, sentenced to three-and-a-half years in prison for threatening his estranged wife and an FBI agent. Even after his wife got a protective order barring him from threatening and harassing her, he posted this on his Facebook page. Fold up your protective order and put it in your pocket. Is it thick enough to stop a bullet? He mused about making a name for himself by shooting up a kindergarten. And after a visit from a female FBI agent, he posted on Facebook saying, it took all the strength I had not to slit her throat, leave her bleeding from the jugular.

Elonis contended his words were only venting, and he challenged his conviction, contending that the judge wrongly instructed the jury that it could convict if it determined that a reasonable person would view Elonis's words as threats. Elonis, in contrast, maintained that to convict, the jury would have to determine that he actually did intend to put his wife and the FBI agent in fear of bodily harm.

Until today, the reasonable-person standard used to convict Elonis was in place in nine of the 11 federal appeals courts. But today, the Supreme Court said there has to be a higher bar for criminal convictions. Writing for the 7-to-2 majority, chief justice, John Roberts, parsed the federal threats law, saying that it nowhere specifically allows the reasonable-person standard. So what standard can prosecutors use? The Roberts opinion said prosecutors must show something about the mental state of the defendant. But must the prosecutor show actual and specific intent or something less, like awareness that the language is so incendiary that it will be perceived as a threat? UCLA law professor Eugene Volokh, who writes extensively about the First Amendment, saw the opinion as a dodge.

EUGENE VOLOKH: The mountains have labored and brought forth a mouse.

TOTENBERG: And University of Maryland law professor Danielle Citron said that under the court's ruling, Congress could return to the subject and make convictions easier to obtain.

DANIELLE CITRON: The court doesn't answer the question whether if you know there's a substantial likelihood you're scaring the living daylights out of someone, if that's good enough - recklessness. And so it's true that Congress could return to the question.

TOTENBERG: But the decision itself said nothing about whether such a law would violate the First Amendment guarantee of free speech, prompting Justice Clarence Thomas, in dissent, to accuse the majority of, quote, "throwing everyone, from appellate judges to everyday Facebook users, into a state of uncertainty. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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