In Headscarf Case, Abercrombie & Fitch's 'Look Policy' Is In Hot Seat

Samantha Elauf and her mother on the steps of the Supreme Court in Washington, D.C. (Photo: Corbis)

Yesterday, Abercrombie & Fitch had their day in court — the Supreme Court.

Why was the retailer best known for its shirtless male models, and fragrance-drenched, pulsing bass in-store experience within the pristine and hallowed halls of the highest court in the land? The preppy teen retailer was out to defend its right to not hire a young woman for wearing a hijab, the head veil worn in public by some Muslim women post-puberty as a sign of modesty.

The case, called Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., centers around a young woman named Samantha Elauf, who in 2008 applied to work at an Abercrombie & Fitch store. Seventeen years old at the time of her interview with the ubiquitous mall retailer, Elauf had been wearing a hijab since the age of thirteen. And while she apparently nailed her interview — leaving the assistant store manager with nothing but glowing remarks about her — she was ultimately not hired solely because of her headscarf.

After she gave Elauf high marks for the three categories of review in an Abercrombie & Fitch interview — “outgoing and promotes diversity,” “sophistication and aspiration” and “appearance and sense of style” — the assistant store manager, Heather Cooke, wasn’t sure how Elauf’s hijab would fall within Abercrombie’s official “look policy” in regards to its ban on the wearing of hats and caps.

So Cooke asked her manager and the district manager. As she recounted in her testimony before the court, “I asked [the district manager], you know, she wears the headscarf for religious reasons, I believe. And he said, “You still can’t hire her because someone can come in and paint themselves green and say they were doing it for religious reasons, and we can’t hire them. And I told him that I believed that she was Muslim, and that was a recognized religion. And that she was wearing it for religious reasons. And I believe that we should hire her … He told me not to hire her.”

Upon learning from a friend who worked at Abercrombie about the reason she was not hired, Elauf filed a complaint with the government’s Equal Employment Opportunity Commission, who filed the suit on her behalf saying that the retailer “had violated Title VII of the Civil Rights Act of 1964, which prohibits employers from refusing to hire someone because of her religious practices unless the employer can show that it would be an “undue hardship” to make allowances for the practice.  The store, the lawsuit contended, should have made an exception to its “Look Policy” to accommodate Elauf’s religious beliefs.”

Yesterday in court, however, attorneys for Abercrombie insisted that there had been no religious discrimination since religion was never discussed in Elauf’s interview since that’s a “personal” topic. Justice Elana Kagan seemed skeptical of this argument, saying, “You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation, to ask some questions. You’re saying we should structure the whole legal system to make sure there is no possibility of that awkward conversation ever taking place.”

Justice Samuel Alito took his questioning down a slightly different path, noting that, “Maybe she’s just having a bad hair day, so she comes in with a headscarf, but she doesn’t have any religious reason for doing it. Would you reject her for that? No. The reason she was rejected was because you assumed she was going to do this everyday, and the only reason why … is because she had a religious reason.”

The Abercrombie defense team, however, raised an interesting issue, arguing that a ruling in favor of the EEOC would allow employers to stereotype employees and potential employees based on assumption alone, a precedent that could have major effects on candidates and employees who are pregnant or have some form of disability.

Last night, Nina Totenberg, NPR’s legal affairs correspondent, weighed in on the case, noting its intrinsic paradox: “Abercrombie maintains that if Elauf wanted a religious exception allowing her to wear her headscarf, it was up to her to make the case at the time of her interview. Elauf responds that she didn’t even know about the Look Policy, and that deliberately downgrading an otherwise highly rated applicant because of a religious practice violates the federal law banning religious discrimination in employment.”

Totenberg concluded that based on the court’s line of questioning, it seems most likely they will ultimately rule in favor of the EEOC. She pointed specifically to another series of remarks by Justice Kagan as an example, “Suppose an employer just doesn’t want to hire any Jews, and somebody walks in and his name is Noah Goldberg, and he looks kind of Jewish and the employer doesn’t know he’s Jewish … and certainly Mr. Goldberg doesn’t say anything about being Jewish, but the employer just operates on the assumption that he’s Jewish [and then Goldberg doesn’t get the job]. That has got to be against the law, right?”

With the court still set to rule this summer on not only this case but also the case of Young v. the United Parcel Service, in which a woman is suing UPS for violation of the pregnancy discrimination act, there are major developments ahead for about physical appearance — and its perceived effect on ability to perform a given job — in the workplace.

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