Supreme Court boosts workers who claim religious bias

Richard Wolf | USA TODAY

Show Caption Hide Caption Justices rule for Muslim denied job over headscarf The Supreme Court ruled Monday for a Muslim woman who did not get hired after she showed up to a job interview with clothing retailer Abercrombie & Fitch wearing a black headscarf.

WASHINGTON — The Supreme Court ruled Monday that companies cannot discriminate against job applicants or employees for religious reasons, even if an accommodation is not requested.

The decision was a victory for workers who want to exercise their religion on the job, from their wardrobe to transportation to time off. The court gave Samantha Elauf, a Muslim girl denied a job in 2008, another chance to make her case.

It was a setback for preppy clothier Abercrombie & Fitch, which refused to hire Elauf at the time because she was wearing a black hijab, or head scarf. The company has since changed its policies.

And it could have major implications in the future for other job applicants and employees who seek time off for religious observances, as well as those who adhere to strict dress codes.

Justice Antonin Scalia wrote the 8-1 decision for a near-unanimous court, save for Justice Clarence Thomas' dissent. Scalia reasoned that even if the clothier did not know Samantha Elauf's religion, its suspicion still motivated the decision to deny her a job.

"The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward," Scalia wrote. "An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."

The ruling continued the high court's practice of providing legal protection for religious beliefs and customs. In recent years, it has allowed employers with religious objections to avoid covering some forms of birth control, upheld the practice of opening local government meetings with a prayer and allowed a Muslim inmate to keep his beard in prison.

That history put Abercrombie & Fitch's former "look policy" for sales associates on thin ice. During oral arguments in February, both liberal and conservative justices refused to believe the company's insistence that Elauf, 17 at the time, was turned down simply because of the head scarf, not her faith.

In his dissent, however, Thomas defended the company, claiming that its "neutral look policy" did not constitute intentional discrimination.

The court's decision — hailed by virtually all religious groups, from Baptists to Jews to Sikhs — could have implications for religious minorities' job opportunities as well as companies' hiring practices.

Muslim women who cover their heads encounter some of the biggest problems. 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 its 3,800 religious discrimination claims were filed by Muslims.

"We welcome this historic ruling in defense of religious freedom at a time when the American Muslim community is facing increased levels of Islamophobia," said Nihad Awad, executive director of the Council on American-Islamic Relations.

Businesses, on the other hand, claim that requiring them to cater to all religious minorities' observances is an undue hardship.

"Shifting this burden to employers sets an unclear and confusing standard, making business owners extremely vulnerable to inevitable discrimination lawsuits," said Karen Harned, director of the small business legal center at the National Federation of Independent Business. "Whether employers ask an applicant about religious needs or not, there is a good chance they will be sued."

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.

Abercrombie's "look policy," since altered, affected the type of clothing, jewelry and makeup its sales representatives could wear. It often granted exceptions upon request, including for head scarves.

The circumstances in Elauf's case posed a narrow question: Must the job applicant request a religious accommodation, or should the employer recognize the need for it? During her job interview, Elauf never brought up her religion, and her interviewer never asked.

The federal government maintained that Abercrombie discriminated "when it intentionally refused to hire Samantha Elauf because of her hijab, after inferring correctly that Elauf wore the hijab for religious reasons."

Abercrombie, backed by the U.S. Chamber of Commerce and other business groups, contended that employers should not be forced to inquire about a job applicant's religion for fear of appearing to discriminate.

The company 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, it says, it has gone from fewer than 10% non-white sales associates to more than 50%.

It issued a statement following the Supreme Court's decision noting "significant enhancements to our store associate policies, including the replacement of the 'look policy' with a new dress code that allows associates to be more individualistic; changed our hiring practices to not consider attractiveness; and changed store associates' titles from 'model' to 'brand representative' to align with their new customer focus."

"This case relates to events occurring in 2008," the company said. "A&F has a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs."