Muslim's case takes 'look' at Abercrombie & Fitch policy

Richard Wolf | USA TODAY

WASHINGTON – Samantha Elauf didn't look like a typical Abercrombie & Fitch sales associate, or "model," when she applied in 2008 for a job in Tulsa, Okla. That much was clear from the retailer's "look policy."

But whether the preppy clothier's refusal to hire the 17-year-old girl was due to her Muslim religion or simply because she wore a black hijab, or head scarf, during the interview is still being fought out seven years later. On Wednesday, it will be up to the Supreme Court to decide.

The justices must weigh the employment difficulties faced by religious minorities – in particular, Muslim women who cover their heads in public – against the rights of employers to avoid "undue hardship." Their decision will hinge on a narrower question, however: Must the job applicant request a religious accommodation, or should the employer recognize the need for it?

Abercrombie & Fitch is a noteworthy defendant in the case. It settled a lawsuit brought by black, Hispanic and Asian-American college students for $40 million a decade ago and pledged to diversify its hiring, promotion and marketing practices. Since then, the company says, it has gone from fewer than 10% non-white sales associates to more than 50%.

In the new case, the federal government charges that the retailer discriminated "when it intentionally refused to hire Samantha Elauf because of her hijab, after inferring correctly that Elauf wore the hijab for religious reasons." A half-dozen religious groups – ranging from Muslim to Christian, Jewish, Baptist, Evangelical and Sikh – have taken her side.

"This is an extremely important issue that affects people of many different religious faiths," says Gene Schaerr, a lawyer representing 15 religious and civil rights groups in the case. If the court rules for Elauf, it could benefit job applicants who need time off for religious observances as well as those who wear religious clothing.

Abercrombie & Fitch, backed by the U.S. Chamber of Commerce and other business groups, contends that employers should not be forced to inquire about a job applicant's religion, for fear of appearing to discriminate. In 2008, they note, Elauf never said she needed to wear the headscarf because of her Muslim faith.

"Accommodating religious practices is not always straightforward, in large part because it can be hard to tell who wants or needs accommodation," the company's brief to the court says. "It is generally the employee's or applicant's duty ask for an accommodation – not the employer's job to guess."

A federal district judge originally ruled for Elauf, but an appeals court reversed and said it was the job applicant's responsibility to ask for the exception – just as people with disabilities must under the Americans with Disabilities Act.

MUSLIM WOMEN FACE BARRIERS

Employment discrimination statistics involving Muslims are stark, making the case important far beyond Abercrombie & Fitch or Elauf:

• After the Sept. 11, 2001, terrorist attacks, the Equal Employment Opportunity Commission – which sued Abercrombie on Elauf's behalf – saw a 250% increase in religion-based discrimination charges involving Muslims.

• In 2012, more than 20% of the EEOC's 3,836 religious discrimination claims were filed by Muslims.

• A study by the American Civil Liberties Union Women's Rights Project found that 69% of women wearing hijabs have faced discrimination, compared with 29% of those not wearing such head scarves.

"This is a big issue in the United States – how people view Muslim women who wear hijabs," says Jenifer Wicks, litigation director for the Council on American-Islamic Relations.

Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, color, religion, sex or national origin. The ban on religious discrimination includes observances and practices, unless the employer cannot reasonably accommodate them without undue hardship.

"Congress did this very deliberately," says Douglas Laycock, a University of Virginia law professor and one of the nation's leading experts on religious liberty. "It said no discrimination on the basis of religion, and religion includes religious practice."

IVY LEAGUE TO SOUTHERN CALIFORNIA

The company in this case isn't just any company. Abercrombie & Fitch describes its clothing as "rugged casual wear modeled after the preppy look of the Ivy League." Its abercrombie kids stores, like the one where Elauf applied, cater to pre-teens and middle-schoolers, while its Hollister outlets sell "casual clothing inspired by Southern California" to high-schoolers.

The clothier's "look policy" affects the type of clothing, jewelry and makeup its sales representatives can wear, including atop their heads. But it often grants exceptions upon request, including for head scarves.

"A&F has a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs." the company said in a statement.

Christopher Ho, the lawyer for a former Muslim employee who was fired after four months and later won a federal lawsuit in California, says the company is adamant about the link between its look and its sales.

"They've had this dug-in mind-set as to what they think sells," Ho says. "They honestly believe that their look policy is the key to success."

That policy ran into trouble in 2003, when minority college students challenged the company's predominately white image. The court settlement addressed not just hiring, but advertising and marketing.

The lawsuit filed in Elauf's case is trickier, because the need for an accommodation isn't always apparent during job interviews. "Employers are not supposed to ask about religious views or practices," the company argues in its brief.

That view is backed by other employers, including the National Conference of State Legislatures.

If the justices rule against Abercrombie, the group says, "Employers will be forced to rely on stereotypes in order to ascertain an employee's or prospective employee's religion, which will lead to an increase in discrimination suits against employers."