The U.S Supreme Court has announced that it will take its first hijab case to decide whether Abercrombie, the fashion retail chain, can deny employment to an otherwise qualified young woman who wished to wear a headscarf at work. U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch started in 2008. A 17-year old woman named Samantha Elauf applied for a job at the Abercrombie Kids store at a mall in Tulsa, Oklahoma.
Abercrombie sales associates are called “models” and they are expected, as part of their job, to look good. In fact, part of the job interview is a score on how you look. Once someone is hired, the newly hired “model” has to comply with the Abercrombie “look policy” governing their overall style and how they dress.
Elauf was aware of the general situation. She asked a friend before interviewing if she could be able to wear the hijab on the job. The friend, who knew the store’s assistant manager, was told that be expected the hijab would be fine as he has worked with someone who wore a yarmulke at Abercrombie. He did say that the look policy prohibited anything black so she would have to wear a scarf of a different color. Elauf thought that would be fine. She went to her interview (wearing what was described as “an Abercrombie like T-shirt and jeans” and her black hijab). She didn’t bring up religion or her religious reasons for wearing a headscarf. The interviewer didn’t bring it up either. The interviewers did outline other requirements of the look policy (nail polish and excessive makeup). Elauf did well in her job interview. She even got a 2 out of 3 for her appearance. Her tallied score was 6, which was normally a high enough score to “score” her the job.
After the interview, the interviewer asked her direct supervisor about the hijab. She was directed to the district manager. At that point, it was decided that the headscarf would be inconsistent with the look policy. The interviewer was told to drop Elauf’s appearance score from 2 out of 3 to 1 out of 3. This put her total at 5, which was one short of a job recommendation. Elauf did not get the job at Abercrombie.
That’s when the EEOC sued Abercrombie for religious discrimination. It appeared to be an open and shut case and a federal district court judge decided summarily for the EEOC. Then the 10th Circuit reversed. In a split decision, the court didn’t send the issue to trial, but instead issued summary judgment for the retail store, Abercrombie & Fitch. The court reasoned that Elauf hadn’t told Abercrombie that she would require religious accommodation under the look policy in order to wear her hijab.
A dissenting judge, Ronald Reagan appointee David Ebel, pointed out that Elauf didn’t advise the store of the need for special religious accommodation because she had every reason to assume she wouldn’t need one. She was advised by her friend (who had consulted the assistant manager) that her hijab wouldn’t violate the look policy at the store as long as she wore any color other than black. On the other hand, Abercrombie, who was in a position to know that the hijab might be in violation of its policies, never brought the issue up with Elauf. They avoided the conversation.
It is unsure exactly how the Supreme Court will handle the issue as it could be seen as an example of why flexibility may be needed when circumstances warrant it, but the Supreme Court doesn’t generally take on cases without doing so to create a principle.