WASHINGTON – Have you heard the one about the Sikh, the Hasidic Jew, the Muslim and the nun who walked into a job interview?
Supreme Court Justice Samuel Alito channeled his inner stand-up comic Wednesday in indicating that he and most of the court would side with a Muslim woman who showed up for a job interview with Abercrombie & Fitch wearing a black headscarf. She didn’t get hired.
Samantha Elauf, the woman at the center of the case about religious discrimination in hiring, was in the courtroom Wednesday. The case turns on how an employer is supposed to know that a worker or applicant has religious beliefs that need to be accommodated.
The clothing retailer said Elauf can’t claim discrimination because she didn’t say anything about religion during her interview.
Alito acknowledged that it sounded like he was making a joke in describing interviews with “a Sikh man wearing a turban,” “a Hasidic man wearing a hat,” “a Muslim woman wearing a hijab” and “a Catholic nun in a habit.” But his point was that employers can’t feign ignorance when people appear before them in religious clothing.
“Now, do you think ... that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement,” Alito said.
Pressed by both conservative and liberal justices, Abercrombie lawyer Shay Dvoretzky said employers would get into trouble if they started making assumptions about people. “What we want to avoid is a rule that leads employers, in order to avoid liability, to start stereotyping about whether they think, guess or suspect that somebody is doing something for religious reasons,” Dvoretzky said.
Only Justice Antonin Scalia seemed open to the company’s argument.
Several of Scalia’s colleagues said there’s an easy way to avoid stereotyping. Tell job applicants what the rules are and ask them, as Justice Sonia Sotomayor said, “You have a problem with that?”
Those conversations sometimes might be awkward, Justice Elena Kagan said. But far better the awkward moments than a situation that leads to stereotyping anyway, Kagan said.
Indeed, Alito made the point that despite Elauf’s silence, 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,” he said.
The federal civil rights law known as title VII requires employers to make accommodations for employees’ religious beliefs in most instances. Dvoretzky said the Equal Employment Opportunity Commission, representing Elauf, wants employers to treat people differently based on religion, “which is precisely the opposite of what Title VII wants.”
That provoked a sharp reply from Justice Ruth Bader Ginsburg. “Title VII requires them to treat people who have religious practice differently. They don’t have to accommodate a baseball cap. They do have to accommodate a yarmulke,” Ginsburg said, referring to a Jewish skullcap.
Abercrombie has continued to fight Elauf’s lawsuit, filed on her behalf by the EEOC, even though it since has settled similar claims and changed its headscarf policy. The ban on black clothing remains part of its Look Policy for employees.
Elauf was 17 when she interviewed for a “model” position, as the company calls its sales staff, 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, or hijab, because it conflicted with the company’s Look Policy, a code derived from Abercrombie’s focus on what it calls East Coast collegiate or preppy style.
At the time of the interview, the policy required employees to dress in a way consistent with the clothing Abercrombie sells, and it prohibited wearing headscarves or anything in black.
The woman who conducted the interview consulted with a more senior supervisor and then decided not to hire Elauf because of the headscarf, according to testimony in the case. “The only reason there was a suit here was because she was honest,” Sotomayor said, calling the interviewer’s candid comment rare in employment discrimination cases.
After Elauf complained, 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, as have gay-rights groups.
A legal brief on behalf of Orthodox Jews 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 skullcap, or who may not work on Saturdays, are routinely advised to withhold that information until after they are hired, lawyer Nathan Lewin said in his Supreme Court filing.
A decision in EEOC v. Abercrombie & Fitch, 14-86, is expected by late June.