By Mark Sherman
WASHINGTON — The Supreme Court strengthened civil rights protections Monday for employees and job applicants who need special treatment in the workplace because of their religious beliefs.
The justices sided with 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.
The headscarf, or hijab, violated the company’s strict dress code, since changed, for employees who work in its retail stores.
Employers generally have to accommodate job applicants and employees with religious needs if the employer at least has an idea that such accommodation is necessary, Justice Antonin Scalia said in his opinion for the court.
Job applicant Samantha Elauf did not tell her interviewer she was Muslim. But Scalia said that Abercrombie “at least suspected” that Elauf wore a headscarf for religious reasons. “That is enough,” Scalia said in an opinion for seven justices.
Federal civil rights law gives religious practices “favored treatment” that forbids employers from firing or not hiring people based on their observance of religion, Scalia said. The federal civil rights law known as Title VII requires employers to make accommodations for employees’ religious beliefs in most instances. Elauf’s case turned on how employers are supposed to know when someone has a religious need to be accommodated.
The decision does not, by itself, resolve her case. Instead, it will return to the 10th U.S. Circuit Court of Appeals in Denver, which earlier ruled against her.
“While the Supreme Court reversed the Tenth Circuit decision, it did not determine that A&F discriminated against Ms. Elauf. We will determine our next steps in the litigation,” company spokeswoman Carlene Benz said in an email.
Some business groups said Monday’s ruling will force employers to make assumptions about applicants’ religious beliefs.
“Shifting this burden to employers sets an unclear and confusing standard making business owners extremely vulnerable to inevitable discrimination lawsuits,” said Karen Harned, a top lawyer 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.”
Jenny Yang, chairwoman of the federal Equal Employment Opportunity Commission, praised the court for “affirming that employers may not make an applicant’s religious practice a factor in employment decisions.” The EEOC had sued on Elauf’s behalf.
Elauf was 17 when she interviewed for a “model” position, as the company calls its sales staff, at an Abercrombie Kids store in a shopping mall in Tulsa, Oklahoma, in 2008. She impressed the assistant store manager with whom she met. But her application faltered over her headscarf because it conflicted with the company’s Look Policy, a code derived from Abercrombie’s focus on what it calls East Coast collegiate or preppy style.
Abercrombie has since changed its policy on headscarves and has settled similar lawsuits elsewhere.
After the EEOC filed suit, a jury eventually awarded Elauf $20,000.
But the appeals court threw out the award and concluded that Abercrombie & Fitch could not be held liable because Elauf never asked the company to relax its policy against headscarves.
At the Supreme Court’s argument session in February, several justices suggested that employers tell job applicants what the rules are and give them the chance to raise any objections. Awkward conversations at that point would be better than a lawsuit later on, the justices said.
Justice Samuel Alito wrote separately to agree with the outcome, but not with Scalia’s reasoning. Justice Clarence Thomas dissented, saying he would not find that Abercrombie intentionally discriminated against Elauf when it declined to hire her.
The case is EEOC v. Abercrombie & Fitch, 14-86.