The US supreme court will hear an hour-long oral argument on Wednesday in a case that has pulled off the rare feat of uniting Christian, Muslim, Jewish and other religious organizations.

Retailer Abercrombie & Fitch is fighting a religious bias lawsuit brought by the US Equal Employment Opportunity Commission (EEOC), and backed by 16 religious groups, that argues the retailer should be held liable for rejecting a Muslim job applicant because she was wearing a traditional head covering, known as a hijab.

Samantha Elauf’s headscarf should have been granted a religious exemptions, insists the EEOC. The company insists that it wasn’t told the headscarf was worn for religious reasons and so the company isn’t liable for not accommodating it.

America’s highest court must decide whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for not meeting religious accommodations if it isn’t explicitly informed by applicant or employee of need for such accommodations. A ruling is expected in June.

According to court documents when Elauf, 17, applied for a job at a Tulsa-based Abercrombie & Fitch store in 2008, no one asked her about her religion. The company says that staff are instructed not to ask applicants about religion and that Heather Cooke, the 23-year-old assistant manager who interviewed Elauf, followed those instructions.



The hijab – which Elauf wore at the interview – violated Abercrombie & Fitch’s “look” for two reasons. One, it was black, a color prohibited by the company’s “look policy”. Two, it was considered headwear, like a hat or a cap would. According to the company’s brief filed with the supreme court, Randall Johnson, a district manager consulted by Cooke at the time, told her that under the policy models – as staff are known – were not allowed to wear hats at work. As a result, Elauf received a one out of three rating for “appearance and sense of style” and was not offered the job.

Abercrombie insists that the reason Elauf didn’t get the job was her own fault. In its brief, the company points out that Elauf knew she would have to model the company’s style and that she “knew that Abercrombie did not sell headscarves”.

“Ms Elauf had been cautioned not to wear black clothing to the interview but nonetheless wore a black headscarf even though she held no religious belief that required her to wear black,” it reads. The brief also states that Elauf asked no questions about the company’s dress requirements, nor did she say that the headscarf she wore was worn for religious reasons.

The EEOC, which brought the case on Elauf’s behalf, argues that by placing the burden on the applicant the company has created an impossible scenario. If the applicant doesn’t know enough about the job to know that a religious accommodation is needed, how can they provide an employer with the notice of need for a religious accommodation, asks the EEOC brief.

A federal judge ruled in favor the EEOC and Elauf, but the 10th US circuit court of appeals reversed that decision in October 2013.

The EEOC argues that if the supreme court upholds the 10th circuit decision and sides with the company, it would allow companies to discriminate against employees based on religious practices “as long as the employer does not have ‘actual knowledge’ of the need for religious accommodation”.

Since Elauf’s interview in 2008, Abercrombie has settled with two other women who claimed that the company discriminated against them because they wore hijabs. They were awarded combined $71,000, plus attorney fees in September 2013. As part of the settlement, Abercrombie agreed to revise its “look policy” to accommodate hijabs in the workplace.

The supreme court ruling in this case could affect both private and public sector employers. Photograph: Karen Bleier/AFP/Getty Images

The case being heard by the US supreme court has implication beyond just Elauf and Abercrombie and has slowly morphed into a case of religion versus business. Business advocacy organizations have allied themselves with Abercrombie for the fear that other businesses could in the future be held liable for unintentional religious discrimination. Organizations such as the Equal Employment Advisory Council, US Chamber of Commerce and National Federation of Independent Businesses have filed briefs in support of the company.

In addition to the private sector, public sector employers are also wary of the implications that the ruling in this case could have on their employment practices. As a result, organizations such as the National Conference of State Legislatures, National League of Cities and US Conference of Mayors also filed a brief in support of Abercrombie & Fitch.

Religious groups, on the other hand, have rallied behind Elauf and the Equal Employment Opportunity Commission. Briefs in support have been filed by organizations such as the American Jewish Committee, the Council on American- Islamic Relations and American-Arab Anti-Discrimination Committee.