Acton Institute Powerblog

Explainer: Religious Liberty and the Abercrombie Hijab Case

Share this article:
Join the Discussion:

Free weekly Acton Newsletter

hijab-caseIn the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court ruled on Monday that employers must offer a reasonable accommodation for an employee’s religious practices. Here is what you should know about that case.

What was the issue that sparked the lawsuit?

Samantha Elauf, a 17-year-old Muslim girl from Tulsa, Oklahoma, applied for a job at Abercrombie, a preppy clothing retailer, in 2008. After being interviewed by Heather Cooke, the store’s assistant manager, Elauf was given a rating that qualified her to be hired. However, the store has a policy forbidding employees to wear “caps.” Cooke informed her district manager that she believed Elauf wore her headscarf because of her faith. Her manager said that Elauf ’s headscarf would violate the store’s dress code, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

The EEOC sued Abercrombie on Elauf ’s behalf, claiming that its refusal to hire Elauf violated Title VII of the Civil Rights Act of 1964. Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. Abercrombie claimed that dress policy wasn’t discriminatory because it applied to all head coverings. In addition, they claim, Elauf had not even requested a religious accommodation.

The question presented to the Supreme Court was whether this Title VII prohibition applies only where an applicant has informed the employer of his need for an accommodation.

What was the ruling of the Court?

The Tenth Circuit appeals court had ruled that for a company to violate Title VII’s ban on religious bias in the workplace, the employer would have to specifically know that that a job applicant needs an exception from a work rule to satisfy religious dictates. The Supreme Court ruled that this was a misinterpretation of what Title VII requires. As Lyle Denniston explains,

Even if the applicant does not inform the management of a religious practice, the 1964 civil rights law may be enforced against any employer who refuses to make an exception for that worker, when that refusal is based on at least a suspicion or hunch that the worker follows such a practice and wants to keep doing so, even if contrary to company policy.

What was the basis for that ruling?

Title VII’s “disparate-treatment provision” forbids employers from failing to hire an applicant because of the individual’s religion (which includes his religious practice). If an employer refused to hire someone because doing so would require them to accommodate a religious practice, then they would be violating Title VII. As Justice Scalia said, “Failing to hire for that reason is synonymous with refusing to accommodate the religious practice.” [Emphasis in original] Scalia added,

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII

Which Justices supported the ruling?

The decision was 8-1 in favor of Elauf. Justice Clarence Thomas was the only vote in favor of upholding the Tenth Circuit decision. In his dissenting opinion he wrote,

Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.” Because the Equal Employment Opportunity Commission (EEOC) can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the Tenth Circuit.

Why should Christians care about this case?

While not every religious practice can be reasonably practiced at one’s job, those that can be accommodated should be accommodated. Just as no American should be required to set aside their conscience when they show up for work, there is no reason why non-disruptive religious practices—such as wearing a headscarf—should be excluded without sufficient cause. Religion is too important to be left at the door of a believer’s workplace.

Enjoy the article?

Click below to view our latest and most popular posts!

Read More

Joe Carter Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).

Comments