SCOTUS finds against Abercrombie and Fitch in Muslim head scarf case

The case of EEOC v Abercrombie & Fitch isn’t the sort of decision that’s going to draw the same level of media attention as illegal immigration or gay marriage, but it was still one worth watching. The thumbnail version for those not familiar with it is that a 17 year old Muslim girl applied for a job with the company and was given high praise during her interview. After failing to hear back from them, she learned that she had been passed on for the job because her head scarf would be in violation of the company’s carefully guarded “image” for their sales representatives. The appeals court had sided with the department store, but the Supremes have weighed in on the side of the job applicant in a case which will could have far reaching implications for employers everywhere. (From Reuters)

On a 8-1 vote, the court handed a win to the U.S. Equal Employment Opportunity Commission (EEOC), a federal agency that sued the company on behalf of Samantha Elauf. She was denied a sales job in 2008 at an Abercrombie Kids store in Tulsa when she was 17.

The decision only had one partial dissent from Clarence Thomas, so it was nearly as close to being unanimous as you get these days. NPR had a full review of the case details back in February. Without having the full decision in hand yet, it’s difficult to see where the court found a hard and fast rule to apply to this one.

The case rests on Title VII of the Civil Rights Act, which makes it illegal to “fail or refuse to hire or to discharge any individual … because of such individual’s race, color, religion, sex, or national origin.” How the court decides the case could force us to rethink the balance between religious rights and employer responsibility.

But let’s back up a bit. Abercrombie famously employs a “Look Policy” that lays out in exacting detail what its “sales models” can wear when they’re helping customers or folding clothes on the sales floor. (Por ejemplo.) Back in 2008, Samantha Elauf, who was 17 at the time, went in for an interview for a sales model position in one of Abercrombie’s locations in Oklahoma. The assistant manager who spoke with Elauf gave her solid marks on the three “competencies” required for the job of model at one of the stores: “outgoing and promotes diversity,” “sophistication and aspiration” and “appearance and sense of style.” Elauf said that at the end of her interview, the store’s assistant manager told her that they would call her in a few days about orientation.

But she never got a call. When Elauf asked a friend who worked at the store why she wasn’t hired, her friend told her that the higher-ups said that her headscarf violated the chain’s Look Policy.

At the top of the post I said that this decision could have far reaching implications, but the number of times it may actually arise will likely be fairly small. The reason is that it’s almost impossible to prove the reason why an employer winds up selecting this or that candidate for any given position out of the many applications they will generally receive for each job in an employment market like this. It seems that the only reason the plaintiff had a leg to stand on is that the management went on record saying that she would have gotten the job if she wasn’t going to be wearing the Hijab. In most cases, even if the employer is actively acting in a discriminatory fashion, they can generally say that there were simply better candidates to choose from or that they didn’t like something on the applicant’s resume in terms of being “a good fit.”

Abercrombie’s dress code goes well beyond a simple requirement for professional attire. I don’t shop there myself, but I’m assured that you generally won’t see a lot of Hasidic Jews or Mennonites working there either, assuming they plan on wearing the traditional garb of their faith. But that doesn’t mean that every person from those groups who applies for a job will be able to sue them if they aren’t hired. The store also goes for a young, fit, healthy look for their staff, so you’re probably not going to see your resume heading to the top of the pile if you are severely overweight or otherwise outside of their target demographic.

One interesting takeaway, though, is that the government is still ready and willing to uphold religious freedom. But somehow I get the feeling that this liberty loving trend won’t be quite as enthusiastically embraced if you happen to be a Christian baker who doesn’t wish to participate in a gay wedding ceremony. Ah… live and learn.