Samantha Elauf and her mother Majda Elauf of Tulsa, Oklahoma, pose for photographers outside the U.S. Supreme Court after the court heard oral arguments in EEOC v. Abercrombie & Fitch February 25, 2015 in Washington, DC. Supreme Court rules against Abercrombie in hijab case

The Supreme Court ruled Monday against the retailer Abercrombie & Fitch, 8-1, deciding that the company’s failure to accommodate a job applicant who wore a hijab violated civil rights law.

The clothing chain declined to hire Samantha Elauf in 2008 as a sales associate because her hijab violated the company’s “look policy,” which at the time prohibited employees from wearing head coverings. Elauf was never informed of the “look policy.” Elauf filed a complaint with the Equal Employment Opportunity Commission.


The EEEOC filed suit against Abercrombie, prompting the retailer to deny its policy was discriminatory because its ban prohibited all types of headgear and therefore was not based on religion. (Abercrombie has since changed its “look policy” to allow for headgear, including hijabs, which are a type of headscarf.)

Abercrombie also argued that it was up to Elauf to request accommodation. Under Title VII of the 1964 Civil Rights Act, employers must provide “reasonable accommodation without undue hardship.” The question before the court was whether the employer bore responsibility to provide that accommodation even when the employee — or in this case, prospective employee — did not ask for one. The high court ruled that it did, reversing a decision from the Tenth Circuit.

According to the Court opinion, delivered by Justice Antonin Scalia, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision” to show the employment decision violated Title VII. Based on the court opinion, an employer seeking to avoid accommodation violates Title VII “even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

“The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” the opinion said.

In a dissent, Justice Clarence Thomas Thomas found the majority’s interpretation of Title VII too broad and said Abercrombie’s “look policy” was “neutral.”

“Merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant ‘less favorably than others,’” Thomas wrote.

The case was sent back to the lower court for review.

This was not the first time Abercrombie stood accused of discriminating against Muslims in its hiring practices. In September 2013 the retailer agreed to $71,000 in settlements after the EEOC filed two religious discrimination lawsuits. One of those lawsuits concerned a Muslim teenager fired from her stockroom job after she refused to remove her hijab. The other involved an 18-year-old Muslim job applicant allegedly denied an “impact associate” position after her interviewer asked about her hijab.

In addition, in 2005 Abercrombie paid $50 million to Latino, African-American and Asian job applicants to settle a lawsuit alleging lack of diversity.

The court’s decision was met with little surprise by the employment law community. Lucretia Clemons, a partner at Ballard Spahr LLP, said the decision “confirmed the practices that most employers already utilize.”

“I don’t think it’s a huge game changer,” she said.

She said the Supreme Court’s near unanimous decision will make accommodation rules clearer for employees and employers.

But religious advocacy groups saw the Abercrombie decision as a a significant win.

“For religious minorities in particular, this is a big decision because it makes clear that the fact that it may be inconvenient for an employer to accommodate their religious needs can be no basis for their reason not to hire them” said William Burgess, a senior staff attorney at the Council on American-Islamic Relations. Burgess said the court ruling will likely strengthen job prospects for religious minorities.

In December the Council filed an amicus brief with the Supreme Court recommending that it overturn the Tenth Circuit’s ruling on the grounds that “it places unreasonable burdens on individual job candidates and employees who outwardly display their religion through dress and grooming practices.”

During oral arguments in February, when Abercrombie & Fitch’s attorney, Shay Dvoretzky, argued that questions about religious beliefs were personal, Justice Elena Kagan countered that not asking about them risked greater harm. “You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation, to ask some questions,” Kagan said. “You’re saying we should structure the whole legal system to make sure there is no possibility of that awkward conversation ever taking place.”

Justice Samuel Alito, however, pointed out that job applicants are not beholden to Abercrombie’s dress code, and that the company logically assumed, because Elauf wore a headscarf, that she would not comply with the 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.”