Justices Appear to Favor Muslim Denied Job Over Headscarf

The Supreme Court indicated Wednesday it will side with a Muslim woman who didn’t get hired by clothing retailer Abercrombie & Fitch because she wore a black headscarf that conflicted with the company’s dress code to her job interview.

A legal brief filed on behalf of Agudath Israel, the Orthodox Union, and several Jewish groups argues that requiring job applicants to voice the need for religion-related special treatment makes them less likely to be hired, with no reason given for the decision. Orthodox Jews who wear a yarmulke, or are Shabbos observant, are routinely advised to withhold that information until after they are hired, lawyer Nathan Lewin said in his Supreme Court filing.

“When I started working in a Manhattan law firm it was not traditional for frum lawyers to wear yarmulkes to work, but I decided I would,” Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel of America, told Hamodia. “I believe that the outcome of this case will be very significant for our community as we have a real stake in a broad interpretation of religious freedom in the workplace.”

Liberal and conservative justices aggressively questioned the company’s lawyer during arguments at the high court in a case that deals with when an employer must take steps to accommodate the religious beliefs of a job applicant or worker.

Applicant Samantha Elauf did not say she was wearing the scarf for religious reasons. But Justice Samuel Alito seemed to speak for many on the bench when he said there was no reason not to hire her unless the company assumed she would wear a headscarf to work because of her religion.

“You assumed she was going to do this every day. And the only reason she would do it every day was because she had a religious reason,” Alito said.

“We have been working for years to introduce legislation to strengthen the section of the Civil Rights Act dealing with the employer’s responsibility to accommodate religious needs,” Nathan Diament of the Orthodox Union’s advocacy office told Hamodia. “We are very pleased that the Supreme Court has taken the matter up.”

Abercrombie has since changed its headscarf policy, although it maintains a ban on black clothing as part of its Look Policy for employees.

The central issue at the court is whether Elauf should have had to make clear her religious beliefs. Company lawyer Shay Dvoretzky said that if the court sides with Elauf in her religious discrimination lawsuit, the company would have to “train their managers to stereotype” people based on how they look or what they are wearing.

Only Justice Antonin Scalia seemed open to the company’s argument.

The case is unusual in that Elauf learned that she was not hired because of the headscarf, or hijab, that she has worn since she was 13. Most interviewers are not as honest as the Abercrombie supervisor who met with Elauf, Justice Sonia Sotomayor said.

Abercrombie has settled similar lawsuits elsewhere. But it has continued to fight Elauf’s claim at the Supreme Court.

Elauf was 17 when she interviewed for a sales position, at an Abercrombie Kids store in a shopping mall in Tulsa, Oklahoma, in 2008. She impressed the assistant store manager. But her application faltered over her headscarf because it conflicted with the company’s Look Policy that requires sales staff to reflect the company’s style.

The federal Equal Employment Opportunity Commission filed suit on Elauf’s behalf, and a jury eventually awarded her $20,000.

But the federal appeals court in Denver threw out the award and concluded that Abercrombie & Fitch could not be held liable because Elauf never asked the company to relax its policy against headscarves.

Organizations of state and local governments are supporting the company out of concerns that, if the EEOC prevails, they would be subject to more discrimination claims as large employers.

Muslim, Christian and Jewish advocacy organizations have weighed in on Elauf’s side.

“Cases like Hobby Lobby and Holt [a prisoner who wanted to wear a beard for religious reasons] have forced the issue of whether religion is a normal part of life or an anomaly,” Eric Baxter, senior counsel for the Becket Fund for Religious Liberty, who also filed a brief on Elauf’s behalf, told Hamodia. “In those cases they ruled that [religion] is a normal part of the human experience and that our laws should reflect that.”

This article appeared in print on page 3 of the February 26th, 2015 edition of Hamodia.