By Bob Allen
The Baptist Joint Committee for Religious Liberty joined 12 other religious liberty and civil rights organizations in a U.S. Supreme Court brief filed Dec. 10 supporting a Muslim woman denied a job by clothing retailer Abercrombie & Fitch because she wears a religious headscarf.
In mid-2008, then 17-year-old Samantha Elauf, a Palestinian American who writes a fashion blog, interviewed for a job at an Abercrombie Kids store in Tulsa, Okla., while wearing a hijab, a veil covering the head and chest that Muslim women wear in public after they reach puberty.
The person conducting the interview recommended that Elauf be hired, but a supervisor said wearing her scarf violated the store’s “look policy,” which forbids sales people from wearing hats or black clothing.
The Equal Employment Opportunity Commission filed a lawsuit on her behalf alleging violations of Title VII of the Civil Rights Act of 1964, which requires employers to “accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
Abercrombie & Fitch argued that Elauf was not entitled to Title VII protection because she never “explicitly” confirmed in her interview that she wore the scarf for religious reasons.
A federal district court judge ruled in favor of Elauf, but in October 2013 the 10th U.S. Circuit Court of Appeals reversed the decision, finding that an employer cannot know if an employee wears a scarf because of religion or for some other reason unless the employee tells them so, and that employers do not have to accommodate a religious exception to a policy unless specifically asked.
The BJC brief said the appellate court’s interpretation of Title VII “defies common sense,” because an employer is in a better position than an applicant to know whether a particular religious belief is likely to create conflict between religion and work.
The brief said the 10th Circuit’s analysis “is likely to have profound and far-reaching impacts on a wide variety of religiously observant employees and applicants” and “will too often force them to choose, unnecessarily, between a job and their faith.”
Hollyn Hollman, general counsel of the Baptist Joint Committee, said in many job settings, an individual’s religious needs can be met more easily than an employer might assume at first blush.
“This case is about making sure prospective employees are not categorically disqualified from work opportunities based upon religion,” Hollman said.
The Supreme Court agreed Oct. 2 to hear the case, titled EEOC v. Abercrombie, and probably issue a ruling by the end of next June.