U.S. Supreme Court rules that Muslim employee can wear headscarf

June 2, 2015 • 12:30 pm

You might remember this story: in 2008 Samantha Elauf, a Muslim, applied for a job at the clothing store Abercrombie & Fitch. She was wearing a headscarf. The company claimed it didn’t know that the headscarf was a religious symbol (right!), and denied her employment because the scarf, or hijab, clashed with the company’s dress code.

The Equal Opportunity Employment Commission sued the company on behalf of Elauf, She won that suit, along with $20,000, but a federal appeals court overturned the decision because the company claimed not to know that the scarf was a religious garment.

Yesterday, the U.S. Supreme Court, in a rare nearly-unanimous decision, ruled 8-1 that her religious rights had been violated, and that the company really did know that the garment was religious. The case now goes back to the appeals court, but the outcome is now nearly certain: Elauf will prevail.

8-1 is rare; the dissenter was, surprisingly, Clarence Thomas, who for once didn’t march in lockstep with Scalia. As the New York Times reports:

“This is really easy,” Justice Antonin Scalia said in announcing the decision from the bench.

The company, he said, at least suspected that the applicant, Samantha Elauf, wore the head scarf for religious reasons. The company’s decision not to hire her, Justice Scalia said, was motivated by a desire to avoid accommodating her religious practice. That was enough, he concluded, to allow her to sue under a federal employment discrimination law.

. . . Justice Scalia, writing for seven justices, said Ms. Elauf did not have to make a specific request for a religious accommodation to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring.

“Title VII forbids adverse employment decisions made with a forbidden motive,” Justice Scalia said from the bench, “whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”

Justice Scalia elaborated on this point in his written opinion. “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” he wrote.

Thomas’s dissent?

In dissent, Justice Thomas wrote that the company’s dress code was a neutral policy that could not be the basis for a discrimination lawsuit.

But it can’t be a neutral policy if it prohibits religious expression that is not injurious to the public welfare, which I don’t think this dress code is. The court, I think, made the right decision.

Two issues remain. Headscarves are okay, but what about Islamic clothing that covers more of the body, like niqabs and burkhas (review the various garments here)? I would not find it so easy to tolerate a face covering in an employee who serves the public. One reaches a point at which normal human discourse, including seeing the face of someone you’re buying something from, must trump religious dictates.

Also, as Ben Goren wrote to me, “What about someone from the Church of the Flying Spaghetti Monster who wants to wear a strainer on his head?” That sounds fatuous, but may become a real question given that the CotFSM does have the status in some places of a real religion. Now an Orthodox Jewish male in full regalia, with fur hat and tallis, would never work at a place like Abercrombie & Fitch, but what if he wanted to?

(RNS1-feb25) Samantha Elauf outside of the Supreme Court on Wednesday (Feb. 25, 2015). For use with RNS-SCOTUS-HEADSCARF, transmitted on February 25, 2015, Photo courtesy of Emily Hardman, Becket Fund
Samantha Elauf in a full hijab

h/t: Chris

135 thoughts on “U.S. Supreme Court rules that Muslim employee can wear headscarf

  1. I never thought I would ever agree with Scalia about anything, but in this case I agree because of the history of that kind of discrimination in the past in the U.S. People should only be judged on their merits and on their ability to do a job.

  2. A male untraorthodox Jew would not be wearing a tallit (prayer shawl) except at prayer. He would wear a tallit qatan (having the mandatory four corners of fringes) as an undergarment, and the fringes might be showing or not, depending upon the flavor of his ultraorthodoxy. If he is unmarried, he will not likely be wearing the fur hat (shtreimel), again, depending upon his variety of ultratorthdoxy, and even if married, would not likely be wearing it indoors at work. Again, it is beyond unlikely that he would wish to work at A&F, but what about Bloomingdales? 🙂

  3. I would just say the issue is dress code in a public work environment and the company should be able to determine this regardless of religious desires. If the employee is a Quaker should he or she be allowed to wear that to work at the store? Makes no sense to me and the court is just bending over for religion.

    They attempt to convert this issue to religious freedom because they want to. That is not what the first amendment was about. It simply says you can have your religion and practice all you want but it does not get to trump or interfere in other parts of daily life. How you show up for work is not a function of your religion.

      1. Hey, thanks. I was trying not to rant but the real mistake that is made over and over is the misunderstanding of religious freedom. The religious have turned all of us into that ugly word, accommodationist. The supreme court, which is little more than a branch of the Vatican, is more than happy to take religion’s side, even against the corporations. Just think what they will do to you the individual.

    1. I vaguely recall that a lot of clothing or apparel stores require or ‘strongly suggest’ that the salespeople wear clothes bought from the store. You don’t want your Nike salesperson wearing Reeboks, after all. This doesn’t sound like it would be an issue for Ms. Elauf, but since Jerry asked about the Niqab, the ‘dress code’ reasoning could apply there.

      In hindsight, I think it would’ve been quintessentially American for A&F to tell Ms. Elauf “yes, you can wear a headscarf when you work here…but it has to be an Abercrombie and Fitch headscarf or bandana!”

      1. Ah…I see you replied to yourself after coming to pretty much the same realization of what I tried to convince you of…barged through a door that’s just been opened….

        b&

    2. My thoughts as well. It can be a condition of employment that one has to wear a uniform or particular articles of clothing. It’s part of the job function whether at Apple stores or Hooter’s, or an NFL cheerleader or the Rockettes.

      And especially now that the court has ruled that businesses can have religious convictions, there will be further grounds for conflicts. What if she wanted to work at Hobby Lobby?

    3. The case wasn’t about the 1st Amendement’s religion clauses, it was about whether Title VII of the Civil Rights Act prevents employers from discriminating against applicants wearing religious attire. There is no general freedom for employers to discriminate while hiring on the basis of race, sex, or religion. You should call your representative if you’d like to repeal the Civil Rights Act, but understand that this decision has nothing to do with Constitutional rights.

      1. So it’s the civil rights act and not the constitution. That does not change any of the conditions of misinterpreting the act which I and others believe the court has done regarding religious freedom or discrimination. I will let others argue those court mistakes concerning the act. Repealing the entire act because the court is accommodating religion would not be the way to go and would be very unlikely. Better to make changes in the court and that takes a long time.

        Wearing the head attire will not wreck the company but having a different dress code is not religious discrimination in my view. The employee can practice their religion until the cows come home but at work or in school for that matter, rules apply. So much less work for the judges — determining what everyone wears or doesn’t wear.

      2. As Thomas’ dissent shows, there is room to decide the other way under Title VII on the basis, e.g., that A&F’s requirement is religiously neutral. I don’t understand how the law seems to accommodate only hiring young women for pole dancing, e.g., but it does and it seems to me a similar logic should prevail here, as long as it’s not abused. While I’m loath to agree with Thomas – on anything – I think that”s the right outcome.

    4. I agree, unless it is consistent.

      Sikhs and turbans, ok, how about Hare Krishnas, with bare feet? How about some esoteric ascetic wearing only a loin cloth?

      I actually don’t agree, employers have a right to have a dress code.

  4. While I would be one of the first to agree that discrimination on religious grounds shouldn’t be tolerated, I find myself increasingly opposed to granting requests for religious accommodation as anything other than a courtesy.

    Can she now apply to Hooter’s as a waitress, and be exempt from wearing the low-cut halter top and short shorts that’s the standard uniform there?

    What about some less risqué upscale restaurant that has an equally strict dress code — especially in a restaurant that generally asks its guests to remove their hats?

    The scarf she’s wearing would get her killed in a mechanic’s shop the moment she leaned over a running engine to make an adjustment. Should she still be accommodated?

    Maybe she’s a talented dancer. Can she insist on wearing her scarf all the way through the Dance of the Seven Veils in Strauss’s Salome? Or, as a musician, wear a niquab in lieu of an evening gown on stage in the middle of the cello section of the Philharmonic?

    An obvious answer to all these questions is that she wouldn’t want to work any of those jobs in the first place.

    But then why should she want to work at Abercrombie and Fitch, and why should they be the ones to have to put up with her bullshit?

    Either she now has the right to work on stage as a stripper in a “gentleman’s club” dressed exactly as she is right now, or she should be exercising her right to not work at Abercrombie and Fitch because she doesn’t like the dress code.

    b&

    1. Can she now apply to Hooter’s as a waitress, and be exempt from wearing the low-cut halter top and short shorts that’s the standard uniform there?

      I don’t think she was asking for an exemption: my guess is A&F had no rule against bandannas or headscarfs before this. Since you are against religious discrimination, I assume you would also be against ex post facto attempts to create uniform codes were none existed before the complaint.

      Hooters is likely different not only because it requires their employees to wear specific apparel but its food industry. I would not be surprised if they had a rule about employee headgear too; can’t have the employees choosing to wear some non-sexy hat now, can we? But if they don’t, maybe she *could* demand to be allowed to wear the shorts, the t-shirt, and a headscarf.

      1. I assume you would also be against ex post facto attempts to create uniform codes were none existed before the complaint.

        Not exactly.

        A company as large and as old as Abercrombie should have figured out the whole dress code thing by now…but I don’t think we need to have the law enforce managerial competence.

        It seems like the reality of the situation is that they never had to face anything like this in the past, and that it never occurred to anybody that this was something they would ever have to deal with. So, when else are they supposed to figure out how this should apply to existing dress codes?

        I’m especially thinking back to a phenomenon I largely lived through: the mainstream adoption of tattoos and piercings. Once upon a time, it was simply unthinkable that anybody would show up at a white-collar type of job with visible tattoos and piercings. Today, it’s not at all unusual to see offices with plenty of ink and metal showing.

        When that started happening, it seemed to come out of the blue from the perspective of management, and they had to come up with ex post facto attempts to create uniform codes where none existed before.

        Seems no different here.

        b&

        1. It seems like the reality of the situation is that they never had to face anything like this in the past, and that it never occurred to anybody that this was something they would ever have to deal with. So, when else are they supposed to figure out how this should apply to existing dress codes?

          They are free to change their policy on employee dress codes for the future. But you cannot refuse to hire someone at 10am because of a hiring rule you made up at 11am.

          1. No, but, as I just explained in another post, you most certainly can decline to hire somebody who didn’t do enough research to figure out what’s typical of the position being sought.

            Imagine applying to be a church janitor and dropping F-bombs left and right, as might even be practically expected of you in your current job as a janitor at a correctional facility. If the church doesn’t have a formal speech code, are they required to hire you because they didn’t think to draft one until after your interview?

            b&

      2. A&F did in fact have a pre-existing dress code. According to a recent NYTimes piece it specified East Coast College type garb.

    2. An obvious answer to all these questions is that she wouldn’t want to work any of those jobs in the first place.

      But then why should she want to work at Abercrombie and Fitch, and why should they be the ones to have to put up with her bullshit?

      Offhand, I would say Ms. Elauf sounds like a regular citizen with a reasonably normal religious foible. There have been other cases of employees wanting to wear Christian crosses etc.

      I think the “why would they ever apply for a job here” comment really applies more to the full-on niqab and burkha types. They probably wouldn’t. That’s why the court system takes cases as they come rather than trying to solve those speculative problems before they happen.

      Lastly, why not turn the question around? Given our EEO laws, why should Ms. Elauf have to put up with this corporation’s arbitrary and bigoted bullshit?

      1. Given our EEO laws, why should Ms. Elauf have to put up with this corporation’s arbitrary and bigoted bullshit?

        I reject the notion that Abercrombie’s position here is bigoted or bullshit, though I’ll grant you arbitrary — as, indeed, is every non-functional dress code.

        Hooter’s dress code mandates lots of cleavage. That sort of cleavage is so abhorrent to a majority of the Muslim population that countries like Saudi Arabia have laws and social codes that mandate that offenders be raped and beaten and killed.

        Is it bigoted bullshit of Hooter’s to refuse to permit its waitresses to comply with Muslim modesty codes?

        If not, then it’s not bigoted bullshit of Abercrombie to refuse to permit its employees to comply with Muslim modesty codes.

        b&

      2. Not arbitrary and bigoted.

        This is a selection of AF adverts:

        https://www.google.ca/search?q=abercrombie+and+fitch+advertisement&safe=off&source=lnms&tbm=isch&sa=X&ei=5gRuVZGiOdbnoATW6oLwDg&ved=0CAcQ_AUoAQ&biw=1920&bih=943

        Sexy, smoking hot young men and women. Wild hair, mostly topless, tight pants.

        AF has a look that is associated with the brand, and, frankly, certain outfits, such as religious gear, just aren’t sexy. Retail employees are the representatives of the brand, at the ground. They have to look the part.

        This is quite common n the fashion world, too. For example, if you are working for Chanel, a high end fashion house, you will be expected to remain thin and at least look tidy. You represent the store.

        1. AF has a look that is associated with the brand, and, frankly, certain outfits, such as religious gear, just aren’t sexy.

          More than that: religious gear is explicitly and expressly designed to be anti-sexy, to prevent the possibility of inflaming lust. That’s the whole point of the various coverings: modesty.

          As you note, Abercrombie’s brand is more than a bit notoriously immodest.

          I keep banging on the Hooter’s analogy, and it’s not by accident.

          b&

          1. Exactly. And looking like the brand you are representing is completely normal in the fashion world.

            For example, I sometimes purchase whimsical looking shoes from the brand Irregular Choice. The shoes are bright, flirty and just insane.

            They say, under the careers section:

            Irregular Choice is known as fun, bright, and quirky. We offer a little piece of fantasy that customers can take away with them and this is what we want them to experience when they come to our stores. The vibe we create by using graphics, music, promotions, social networking and of course our products all work together to create a unique and fun experience but it is you, our potential employees, that can really make it something to remember.

            Now, a Muslim woman may very well fit in just fine, but, it isn’t a guarantee. If I was hiring people for a brand like this, I wouldn’t want anyone who was morose and who dressed in black all the time. Who was dressed ‘modestly’ and acted ‘modestly’ because their religion told them to. It’s important that employees look and act the part.

          2. Head ware is not only about modesty, there is something about mot having your head in direct contact with god, or something.

            And some other stuff I can’t be bothered looking up.

            Else, I agree with you, why should they have to accommodate.

      3. Actually A&F had a “look” for their employees that predates her, in much the same way that Hooters has a look (they are of course different looks).

        When she showed up to the interview wearing a scarf, and was asked if she’d work without it, she said no without specifying a reason why, causing A&F not to hire her because she didn’t fit the “look”. Afterwards, they speculated that her reason may have been religion, rather than fashion-motivated and this appears to have gotten them in trouble.

        I hate to say it, but I agree on this ruling with Thomas. I think there needs to be an explicit request for accommodation before it is granted. Take Jerry for example, what accommodations should the University of Chicago have assumed he be granted without his asking for them? Further, if one assumes him to be a practising Jew, which branch of Judaism should one assume he follows?

        Likewise with others. One of my closest friends in university was Lebanese and people were always assuming he was Muslim, when he was in fact Christian. Should the university assume he is either, or to be doubly safe automatically grant him the accommodations of both faiths? If so, which branches of Christianity and Islam?

        What then, if he had previously converted to Wicca? Would the school be innocent of discrimination since they had done their best to assume and accommodate, albeit mistakenly?

        This is a bad decision that will hamstring companies (except when they assume someone is Jewish or Muslim 🙂 and has the potential to make the workplace more faith-riddled than its current incarnation.

        1. “When she showed up to the interview wearing a scarf, and was asked if she’d work without it, she said no without specifying a reason why, causing A&F not to hire her …”

          Are you sure about that? My understanding is that they did not ask about the scarf or whether she would work without that. They just *presumed* that she wouldn’t work without it and thus declined to hire her.

          If they had asked, then yes she then would have needed to have claimed a religious accommodation.

          1. Sorry, I can’t find the original story I read about this a couple of years ago, this story from the Times has the closest summary I can find.

            http://www.nytimes.com/2015/06/02/us/supreme-court-rules-in-samantha-elauf-abercrombie-fitch-case.html?_r=0

            I think regardless of the exact events, the point still applies that the pre-existing policy was the reason for their choice, not any animus against the religion in particular. I agree that the conversation needs to happen, and my previous reading suggests that it did with no mention of religion. If that’s the case, we can’t ask organizations to be mind readers.

  5. I never thought I’d agree w Clarence Thomas on anything, but here I do. I think any business should be allowed to have a dress code that reflects their product.

    1. Note that this ruling does not rule against dress codes, nor indeed does it say that a headscarf must be accepted.

      The defendants lost because they made an *assumption* that she was outside the dress code, and discriminated against her on that basis.

      What they should have done is ask: “Are you ok with complying with our dress code which requires un-covered heads?”.

      If she’d then replied: “No, for religious reasons I would request an accommodation allowing a headscarf”, then the employers would have been required to consider whether that accommodation was reasonable.

      As I understand it, the court has *not* ruled on that question!

      It may be that in some circumstances an employer could successfully argue for the reasonableness of their no-headscarf dress code, and why they had a good business reason for it.

      For example, a hairdressing salon wanting staff to exhibit funky hairstyles might be able to argue that successfully.

      1. I believe you may want to look again. The court ruled 8-1 her religious rights were violated. Everyone wants to split hairs on this thing because we are becoming accommodationist and that is what is wrong.

        Dress code has always been the right of a company but when religion comes to town. That is wrong.

        1. “I believe you may want to look again. The court ruled 8-1 her religious rights were violated.”

          Yes, they violated her religious rights by declining to hire her based purely on her wearing of religious dress at the interview.

          What they did not do is enter into a conversation about whether she could comply with the dress code, and whether reasonable accommodations might be requested and possibly granted.

          1. Yes, they violated her religious rights by declining to hire her based purely on her wearing of religious dress at the interview.

            Religious or not, her attire was not suited to the job she was interviewing for.

            How you present yourself to a prospective employer is a crucial part of the interview process, and successful applicants are expected to do the necessary research to know how to present themselves appropriately.

            You would not show up to an interview for a Wall Street analyst position at an old, established brokerage firm in full punk regalia, complete with multicolored spiky mohawk and dripping chains — even if everything was impeccable and it took you hours to get ready. Doing so, regardless of your official qualifications and what your resume looked like, would be reasonable grounds for immediately being removed from the candidate pool.

            Showing up to a construction site in an immaculate and expensive evening gown would also be a good way to not get the job.

            Interviewing for a wait staff position at a posh restaurant in the same overalls you were wearing all day in your job as a diesel mechanic would get you shown the door right quick, too.

            And modestly dressing, however nicely, for a company that’s known for its immodest attire…shows that you didn’t do your homework and likely aren’t the best candidate in the pool for the position.

            b&

        2. Absolutely agree with you there. Furthermore, religious garments are behavioral statements of beliefs and attitudes. An employer should have the right to insist on certain behaviors and attitudes while the employee is at work, whatever those may be! It seems pretty simple to me- if I wanted to work in a store or company, I’d diligently investigate what they were looking for in dress, seek to conform to appropriate behaviors, etc. in preparation for the interview. What I was willing to compromise on my personal beliefs about image presentation would depend on how badly I needed/wanted the job. If I didn’t need the job that badly- if what they required was too much of a personal compromise- I wouldn’t work there. This woman obviously had an agenda, and I’ll bet she had her religious community behind her, pushing their agenda.

      2. It gets a bit messy, trying to define under law what a persons actual motivations, hence we get all sorts of lawsuits . Law is simply not a good tool for that. I knew someone whowas selling a house. A buyer agreed, but repeatedly failed to come up with the down payment on the agreed dates. The woman selling the house eventually cancelled the contract and was successfully sued for racial discrimination.

        Another case (don’t know theoutcome) was a grossly overweight woman who claimed discrimination because the health food store she applied to felt she did not reflect their values. Were they wrong? Legally yes, but in this case the problem is using law to try to deal with these things.

        Around here, headscarves are common in store personnel, sometimes paired with skin-tight designer jeans. Go figure.

    2. Pretty weird when in order to have an opinion you have to be on the side of either Tony Scalia or Clarence Thomas.

      1. And that’s why I have little respect for SCOTUS. These people are supposed to be making legal judgements – why then is everybody aware of their religious and political affiliations? Because they their personal beliefs inform their opinions to such a great extent.

        I know quite a lot about the Supreme Court justices in the US, but I couldn’t even tell you the names of those in my country or the UK’s (which in the past people could also appeal to, and still can for cases from the past). That’s because their names don’t matter – they rule on law.

      1. “Classic east cost collegiate style” isn’t going to be defined by a union set of everything you might see at any and all US east coast colleges at this moment in time. Were that the case, a full football uniform, complete with helmet and pads and cleats, would qualify. As would holey jeans and dirty t-shirts, or bikinis, or even birthday suits.

        I’m no fashion expert, but I’m pretty sure that Muslim scarves aren’t part of classic east coast collegiate style. Maybe that style will evolve to include such headgear, but I don’t think it’s anywhere near close to mainstream fashion today.

        b&

        1. Oh please, pointing out that headscarfs sold at a big University clothing store may be relevant to the “college” dress code is nothing whatsoever like claiming she could go in a cleats-and-pads football uniform. Your counter-example is so absurd that I don’t even think it warrants a substantive reply, except to say that of course I’m not arguing such a thing.

          Your use of analogies has really gone downhill, Ben. To the point of mischaracterizing or strawmanning your opponents rather than addressing their arguments as intended.

          1. Eric, this is Abercrombie and Fitch we’re talking about.

            Have a look at what they’re advertising as their “A&F Essentials”:

            http://www.abercrombie.com/shop/us/womens-a-and-f-essentials

            Not only not a single headscarf in sight, there’s (almost) nothing long-sleeved, with bare shoulders, bare midriffs, halter tops, and lots of cleavage and sideboobs throughout.

            My whole point in offering up the ludicrous example of football gear as equally deserving of the “east coast collegiate” appellation was intended to demonstrate that Muslim modesty is an equally absurd fit.

            I mean, really. Do you expect to see somebody pairing an headscarf with something like this?

            http://www.abercrombie.com/shop/us/womens-tops-fashion-tops/embroidered-lace-tunic-tank-4866576_01?ofp=true

            Please. Be serious.

            b&

            1. I guess a big enough headscarf could cover the sideboobs…

              Am I the only one who seems to remember A&F being a conservative Brooks Brothers-like men’s store back in the day?

              Hard to imagine paying big bucks for ratty cut-offs…

              1. “Am I the only one who seems to remember A&F being a conservative Brooks Brothers-like men’s store back in the day?”

                I doubt it–quite a few of us, including our Dear Leader, are of a certain age…

                Is it to late to reinvent Brooks Brothers?

              2. A&F was a sporting goods store originally and a very high end one at that. When they went bankrupt, the name was sold along with the assets and that’s when it began to transform itself into it’s current incarnation.

              3. Aaargh! Ben!! It will take me at least ten minutes intensive therapy at Playboy.com to get that image out of my mind…

      2. I believe that classic east coast collegiate style is known as the ‘preppy’ look, and it has never involved headscarves.

        Also, Abercrombie and Fitch is all about the sex. They hire buff male model looking types to work in the stores with their shirts off.

        The brutal truth is, any kind of un-sexy religious gear isn’t gonna cut it with a store whose image is all about selling teh sex.

  6. Does pluralistic religious expression in the workplace as defended by the US Supreme Court mean increased employment opportunities for headscarf-wearing women at Hooters restaurants?

  7. “given that the CotFSM does have the status in some places of a real religion”

    A ‘real’ religion as opposed to what?

  8. Wow, back to back posts featuring headline pics first a close up of Inna Shevchenko then one of Samantha Elauf. Both have attractive head gear…..anyone else see any connection?

  9. Aside from the issue of a company dress code:

    I’m not sure if it touches “expression that is … injurious to the public welfare”, but my line in the sand would be if a religious dress expression is as elaborate as a priest’s (say, burkhas). I don’t think humans should be used as signposts for any purpose, except when they are hired to do so.

    Call it a global population right. =D

  10. The spaghetti monster thing isn’t a real religion, but a tiresome parody, so obviously no one should have to make any accommodation for it.

    1. Can’t you say the same for Scientology? And Mormonism? How do you tell the difference between real religion and tiresome parody?

      1. People actually believe in the teachings of Scientology and Mormonism (whether or not their founders genuinely did). That seems to me a pretty important criteria.

        1. The issue, of course, is that there’s no authoritative way to distinguish “true” from “false” religion.

          This one seems to be “true” according to the IRS. Why is it more “true” than Pastafarians?

      2. Well for one, numerous people (however misguided) believe earnestly in Scientology and Mormonism. I don’t think the same can be said for Pastafarianism.

            1. Presumably. And you’d need to demonstrate somehow that the number of real earnest Pastafarians is zero. Or less than whatever the asserted value might be. So I’m still wondering how one determines that value.

          1. Good lord. We have lots of evidence that Mormonism and Scientology has real adherents. We have no evidence that the same can be said for Pastafarianism.

              1. Wouldn’t that be sexual assault ? Or is it okay because it’s religion.

              2. The noodly appendages only touch those who are openly receptive to their touch. Just like Jesus only…ah…reveals himself to those who have already opened their…hearts?…to him.

                b&

              3. Have you never seen depictions of Jebus. Looks he’s always trying to expose reveal himself.

              4. “he simply can’t contain himself.”

                Ya gotta wonder, doesn’t *anybody* with the slightest bit of imagination ever preview these things before they see the light of day?

                If I was in that church I’d find it hard to keep a straight face.

    2. And some might argue that Islam is a “tiresome parody” of Christianity and Judaism.

      That aside, I wonder what if the job were a car show model. I’m sickened to agree with Clarence Thomas today….

    3. Squeeze me?

      If Pastafarianism, a mere decade old, is tiresome, what does that say about the major Abrahamic religions, which range from a century old in the case of Moronism to about three millennia old in the case of Judaism, with Islam and Catholicism falling between?

      And is a flying spaghetti monster any more of a joke than an enchanted garden with talking animals and an angry wizard, or a talking plant (on fire!) that gives magic wand lessons to the reluctant hero, or zombies that get their jollies by having their thralls fondle their intestines through gaping chest wounds, or a child-raping warlord who rides off into the sunset on the back of a flying horse?

      b&

  11. I find it very hard for me to answer your question because I do not know why headscarves do not bother me. I can recall my great grandmother wearing a kind of head covering not unlike a headscarf but not quite the same and I always figured it helped her keep her head warm. I don’t think it was worn for a religious purpose, but I can’t ask now. It may have been for modesty, even without religion.

    It is interesting to me that some people are very uncomfortable around the hajib but it does not bother me even slightly. I may look at it in the same way I look at a mohawk or a tattoo because it is unusual but not because it makes me afraid or uncomfortable. Someone in a nikab or burka? Now that creeps me out. Same with the full Orthodox Jewish regalia. At some point it blends in as fashion and then it passes that into some extreme that looks like something from a cult ritual, but I can’t explain how someone else’s discomfort with a hajib differs from my discomfort with a burka. Maybe it doesn’t.

    Would I be able to overcome my discomfort in a professional setting with me deciding whether or not to hire someone in a burka? I don’t know. I find this answer troubling because progress is slow enough already. If we completely cut off one another due to cultural boundaries, progress away from what I view as harmful tradition may be impossible.

    1. I was thinking along these same lines as well. My mother, as well as lots of women back in the day, wore a scarf always when she went out. It was smaller, more like a handkerchief that was tied over the head, but it was a scarf nonetheless. A few weeks ago I observed a car with three older women in it and all of them were wearing scarves. I remarked on it to my wife when I saw her because it had been ages since I’d seen something like that.

      But A&F is a poor case for sympathy I think anyway because I’ve seen multiple reports over the years that they will not hire anybody over a certain age and you better be pretty buff to get a job. Their story here seems far fetched to me anyway.

  12. what about Islamic clothing that covers more of the body, like niqabs and burkhas (review the various garments here)? I would not find it so easy to tolerate a face covering in an employee who serves the public.

    Someone already covered the dress code issue. I agree that could be a legitimate reason to disallow it, however, I suspect Abercrombie didn’t have one before the legal suit and so any attempt to claim one here would’ve been seen by the courts as a post-hoc excuse.

    If there’s a functional secular reason why you wouldn’t let any employee in a similar job wear a specific type of clothing*, then I guess that would apply. This probably leaves Abercrombie and similar stores SOL because offhand I can’t think of a functional secular reason why you can’t sell someone clothing or work a register in a full-length robe.** However, I can see lots of other businesses where the more full-length outfits are a health or safety hazard and thus there are legitimate secular reasons for not allowing them. Any food-handling industry, for example, or any lab setting.

    *Or practice a certain religious practice. I think its totally defensible to not hire a salesperson for an apparel store if that person won’t talk to men, or won’t talk to women.

    **I guess if you can’t show your hands to hold hangars for customers or something similar, that would count.

    1. If there’s a functional secular reason why you wouldn’t let any employee in a similar job wear a specific type of clothing*, then I guess that would apply.

      I do believe that’s the heart of Abercrombie’s argument.

      They sell clothes. Not just any clothes, but a certain style and brand of clothes, and that style is decidedly haram.

      In pretty much any sales job, the salespeople are far more effective if they’re showing off the product themselves. An employee at an Apple store shouldn’t be seen chatting on a Google phone. You don’t want your Mercedes salesman driving to work every day in a beat-up Yugo.

      And, in a clothing store, you expect the sales staff to be, effectively, modeling the same or similar clothes as are on the racks.

      Consider a very practical dilemma Abercrombie might face: a customer comes into the store, sees Ms. Elauf wearing her scarf, and remarks, “Oh, that’s such a lovely scarf! I’d just love to wear something like that. Can you show me where you stock your scarves?”

      Ms. Elauf, at that point, is going to have to direct the customer to another retailer entirely…and quite possibly lose out on the sale altogether.

      b&

  13. I would hope headscarf wearers never use lathes? That would be dangerous. I assume, too, most lifeguard positions are out of reach? Who would want a life guard that has to keep their clothes on to save a life?

    The decision feels more like accommodating to religion. Nevertheless, it is probably the right one assuming A$F did not have an explicit (prior) dress code restricting headscarfs.

  14. I just don’t see why accommodations should be made because someone believe in a magic man in the sky.

    People believe all sorts of crazy things, and do all sorts of crazy things because of those beliefs, but if we slap the label religion on it, you get special treatment under the law.

    This is true for some drugs. If you are of a particular native American heritage, you may legally partake of certain drugs that illegal to everyone else. Yet the US courts have denied Rastafarians the same rights.
    Perhaps the problem is the Rastafarians can’t remember to show up to court:

    http://blogs.findlaw.com/legally_weird/2013/05/new-twist-in-rastafarians-religious-pot-case-where-is-he.html

    1. “I just don’t see why accommodations should be made because someone believe in a magic man in the sky.”

      Does that mean no one should be able to wear a cross or a star of David around the neck ?

      1. Many places frown on jewelry or have limitations on size and flashiness and the like. If the religious jewelry is in keeping with those style guidelines, I don’t see how one could object to it. But if jewelry is entirely forbidden, an employer should not be required to give an exception simply because an item of jewelry has some sort of religious significance. Or, if only small and unobtrusive jewelry is permitted, a giant wooden crucifix hanging around the neck would be out.

        b&

          1. There are certainly situations where a private employer could require employees to wear religious attire. I’m sure I’ve put on some sort of costume at some point as musician playing for a church service, though I can’t think of an example off the top of my head. Had I refused to do so, that would have been reasonable grounds for dismissal.

            For that matter, those gigs obviously required playing all sorts of “Praise Jesus!” music, so, in a sense, I was actually compelled to speak a message of religious endorsement.

            But I don’t mind. I’m still hoping to find a good bass baritone with whom to perform The Trumpet Shall Sound! and chances are good that, if that ever comes to pass, it’ll be in a church. And I’ll probably get paid for it. And I’ll do the performance genuinely thrilled…even if most in the audience are deluded enough to think that the dead really shall be raised.

            If I had a problem with that, it would be up to me to not take the gig — not up to the Church to permit me to play some other non-Christian piece of music of my own choosing.

            b&

    2. I just don’t see why accommodations should be made because someone believe in a magic man in the sky.

      The first amendment is the reason why. Like it or not, religion is called out in our constitution as one (of four) things we can’t prohibit the free exercise of. This has been interpreted liberally in the 20th century to include ideologies writ large, which I think is a good thing, but the core remains: its written in the constitution that this is an area where regulators should tread lightly. It gets special treatment (like the right of the press, assembly, and speech) because it’s mentioned specifically, other things are not.

      1. Congress (and the rest of the government) cannot prohibit the free exercise of religion.

        But if I’m paying you to do a job, you have no right to exercise your religion while you’re on the job. A bus driver isn’t permitted to stop the bus several times a day, wherever he happens to be on his route, in order to pray to Mecca. If your religious convictions require you to pray several times to Mecca, that’s fine; requiring your employer to assist you in your exercise of that idiotic religious practice is not. Find a job that lets you take frequent breaks.

        And I see no reason why Abercrombie and Fitch, a company whose stock in trade is immodest dress, should be required to assist somebody exercise a religious command to dress modestly.

        Maybe a Rabbi could get a job as a chef at Chili’s, and force the company to accommodate him by koshering the entire kitchen and removing all pork products from the menu?

        b&

      2. I do not think it applies for dress code. If the company has that policy and pays its employees to wear specific clothes that explicitely forbid all religious clothing that’s the company’s right.

        A Class 1 clean room suit is explicitly against all religious clothing as there are no religions that developed requiring such clothing, since that type of clothing did not exist eons ago.

        Class 1 clean suits are a blatant violation of the first amendment since they prohibit against all religions. Why are there no supreme court rulings against them and the employers who force their employees to wear them? Because its nonsense, just like a dress code for an weird clothing outlet.

  15. I agree that this ruling is correct.

    I only object to people obscuring their faces.

    I complained to my son’s (US) school that I saw people with faces covered in the school (veiled women). I received a phone call from the principal, who explained that they could not prohibit the veils (for religious reasons) but that they did positively ID people with veils by examining their IDs and their faces.

    I wasn’t really happy about that; but it was at least reasonable.

    In my wife’s school, she’s seen people in her school wearing burkas. (Who are they? Male or female? armed or not? — who knows??) Scares the crap out of her. They have not-infrequent incidents of disgruntled non-custodial parents causing issues in the school (such as trying to pick up kids when they don’t have custody).

    And in my son’s former day-care, a disgruntled non-custodial father murdered his 4-year-old daughter and himself. (The only silver lining for us in that was that he was too young to remember it.)

    A burka would be a very effective place to conceal a firearm — and one’s identity.

  16. It is purely a matter of principle and the SCOTUS has allowed the camel’s nose under the tent flap. No religious dress, no matter how inappropriate, can now be decided against in hiring and employment. I never thought I would agree with Clarence Thomas on anything but I’m with him on this one. As usual I completely disagree with Scalia.

    1. I’m with you, and I certainly don’t mind disagreeing with Clarence; but the rest of the split is somewhat unsettling.

  17. Great, now I can wear my spaghetti colander to work and they can’t fire me. Praise be the Flying Spaghetti Monster. Private companies are no place for any religious statements. Religious “culture” or “history” are not grounds for promoting religion in the private or public work place. Companies should be allowed to hold employees to a dress code they determine is in the companies best interest and/or image.

  18. Great, now I can wear my spaghetti colander to work and they can’t fire me. Praise be the Flying Spaghetti Monster. Private companies are no place for any religious statements. Religious “culture” or “history” are not grounds for promoting religion in the private or public work place. Companies should be allowed to hold employees to a dress code they determine is in the companies best interest and/or image.

  19. I think it’s time someone who chooses to dress in a sexually provocative manner tried to get a job in a niqab/burqa store. It would be interesting to see the what happens. I want to know if there’s an unconscious double standard in accommodating religious dress.

    1. As Ben notes, you’d have to get someone with a religious reason for dressing that way. The law doesn’t protect your mere preferences, it only protects “religious practice”. It is only because we have tamed religion in the west that that’s not more absurd, since all sorts of vile religious practices exist. And we do not even need to turn it over in our minds twice to see if the courts would respect a “philosophical practice”, chosen after careful thought and reflection. They wouldn’t.

      As much as I’m opposed to all forms of arbitrary or pre-judging discrimination in the work place, it’s obvious that this case was not decided on, nor will future rulings be based on, the mere desire to protect people from arbitrary discrimination. It is, rather, a ruling that is asserting a religious privilege and nothing else. While superficially it lines up with the general right to be judged on your merits in a job and not pre-judged based on artificial non-work related criteria, in fact the judgment hinges precisely on the “religious” nature of the discrimination. All other sorts of discrimination… they don’t like your shaved head, or your tattoo, or your politics… tough cookies. Religion, however, is special.

      It’s because of this that I can’t support this ruling. It gives the illusion of supporting a principle I am for, but in reality it is giving that principle the middle finger.

  20. I’m found this a bit lacking in how she knew they didn’t hire her because of her headscarf. Did they specifically tell her that, or did she infer it?

    Most of the time, I’ve just been told that someone else was hired, and why I was rejected was not specified.

    I just worry that this might open the door to unsuccessful applicants crying discrimination when someone better qualified was hired instead.

    1. Open the door? I think it (or the threat of it) happens quite regularly. I would offhand guess that hiring and firing decisions are what many corporate counsels work on most of the time.

    2. I wondered the same thing. How did she know this was why she didn’t get the job? If they were silly enough to say this to her then I almost feel she deserves the money. Surely corporate speak along the lines of “we don’t feel you’re quite in line with company image” would have done the job. There’s always more people applying for jobs of this type than they can take. All you have to say is “sorry you were unsuccessful, good luck with your life”.

  21. One has to take this head scarf business (and its more notorious derivatives) quite seriously. It is a policy devised ages ago by religious rulers (men), including Islam, to prevent integration with other societies. The most horrible example is genital mutilation (more than 95 % of Egyptian women are victims), these women have very little chance to marry a non-Muslim man. Forcing women to wear head scarfs is a very deliberate policy (compare it to Saudi women being barred from driving cars). In Europe, women wearing head scarfs, even if they are educated, will not easily integrate into European society. For example, their chances to be taken seriously for university positions is infinitely smaller than for their non-Muslim colleagues. In Europe the French have the best understanding of this problem. Muslim men in Europe generally wear Western clothes, although they don’t integrate for other reasons. The sight of a man, walking, followed by the wife (with head scarf) at a distance of four feet, like a duck following Konrad Lorenz, is a revolting sight.

    1. Why should someone be forced to integrate into my society? I’m not talking about obeying the law – yes, I expect that. I’m talking about their choice of clothing, music, food, hobbies…why should the government or law concern itself with enforcing uniformity in those areas? I consider that a social bad, not social good. As one of the other posters mentioned, I like eating at Mexican restaurants. Why would I want all these immigrants to open hamburger joints?

      1. Eric, that’s not what we’re demanding.

        She wants to wear a scarf, great. Wear a scarf.

        But she has no right to demand that a company that sells skimpy sexy clothes hire her to sell skimpy sexy clothes whilst wearing a body sack.

        She wants to wear clothing whilst wearing a body sack, she should go to a clothing store that sells body sacks, or start her own body sack clothing company.

        I’m really glad Mexican immigrants have opened some fantastic restaurants serving the food of their homeland, and I’ll almost always prefer to eat at such a place than a burger joint. But, if I go to a burger joint and it’s a Mexican immigrant behind the grill and I order a burger, he damned well better serve up a burger and not a sope con carnitas y friholes.

        b&

        1. I don’t think that eric understands how vitally important branding is to a fashion house.

          Image is EVERYTHING.

          I have been obsessed with fashion my entire life, and expecting employees to look and dress a certain way to promote the brand is a given.

          -Cindy (formerly muffy)

      2. “Why would I want all these immigrants to open hamburger joints?” Well, that is exactly what they do, fish and chips shops in the UK, and frites on the continent. What I mean is, forced marriages of 14-year old girls slepped to Africa or Pakistan, to become the wife of someone they have never seen before. And of course, genital mutilation. And the religious police, Muslim men looking and harassing girls whose hear sticks out of their head scarf, or are on the street after nine, not in Egypt, but in Germany.

  22. The relevant question to ask is: Is this an item of clothing which you could allow anyone (with one possible complication: anyone of the same sex) to wear to work, regardless of their religion, without it intefering with their work and without your organisation looking silly?

    Headscarves get in, I think; colanders, face masks and metre-high snoods do not.

    Reindeer antlers get a special pass once a year.

    1. “…without it intefering with their work and without your organisation looking silly?”

      Who gets to make the call? Because I’m pretty sure the Abercrombie & Fitch management think that headscarves are not in keeping with their corporate image.

      1. That’s a good question, but someone has to make the call somewhere – at some point, someone will have to make the call.

        I’d be inclined to err on the side permissiveness rather than restriction.

        1. Permissiveness in this case — a modestly-dressed prude wanting to sell racy clothes at a retailer known for its scantily-clad models — would be most problematic. Maybe permissiveness would also permit a Lubovitcher rabbi to apply for a job as an Hormel bacon salesman, but tell all his customers that bacon is tref? and that he can’t even stand the smell of it?

          b&

  23. One thing that I like about this web site is that its host is willing to give credit where credit is due, even for people who are seen as otherwise problematical.
    So on this occasion I give a slight nod of approval in the general direction of Justice Scalia [while also cringing a little].

  24. This is a tough one. It comes down to whether A&F is discriminating because the employee is Muslim or because the employee is wearing a headscarf. I think it’s the latter. Let’s take a more clear cut example–a fundamentalist Christian applies to be a dancer at a strip club and then protests that her religion prevents her appearing naked in front of men she isn’t married to. Would anyone really claim that the strip club should accommodate this? Or, I should say, would anyone claim that the Supreme Court would really rule that a stripper can remain clothed due to religious reasons?

    The second factor, which is a bit more ambiguous would be what the purpose of A&F having a dress code is. It seems reasonable that the dress code is enforced to advertise their branch. Does a garment on the head interfere with this? If employees don’t typically wear A&F hats to work, probably not. Still, I think the first point is stronger and freedom of religion should be limited to freedom of belief, not action. Worship how you please, just don’t force other people to participate in it unwillingly.

    1. The second factor, which is a bit more ambiguous would be what the purpose of A&F having a dress code is. It seems reasonable that the dress code is enforced to advertise their branch. Does a garment on the head interfere with this?

      I should offer a caveat that I have something of a visceral aversion to malls and probably haven’t ever stepped in an Abercrombie store…but I think it quite safe to suggest that not merely is a Muslim headscarf out of place, there, but modest attire in general is not proper work clothes.

      Have a look at their Web site, and tell me if you spot anything there that would meet Western standards of, “modesty,” let alone Islamic standards. And the whole religious point of the Muslim headscarf, of course, is modesty….

      b&

      1. Totally with you, Ben:

        As for me:
        I have something of a visceral aversion to malls and probably certainly haven’t ever stepped in an Abercrombie store

  25. I think that disgusting A and F corporation was within their rights. I deplore them.
    But I accept the concept of a “dress code”.
    That hijab appears to be more of a political statement than anything else.
    Everyday I wash dishes in a busy kitchen
    with a lot of immigrants from Jalisco & Zacatecas. They have dress codes too, but no huge agendas attached.
    Maybe it would be a good time to remember our secular values.

  26. Many religious people will never, ever, stop trying to push their particular fantasies on the rest of us.
    This woman was fully aware of the significance of her head scarf and the issues involved.
    There will be more such cases aimed at making deeper “faith” intrusions where the religious think they can corrupt the essence of secular law.

  27. I don’t know Abercrombie & Fitch but a quick Google suggests:
    “‘models’ (staff) may now wear any no-logo clothing as long as it corresponds with the season and style of the brand.”
    and
    “Women’s Wear Daily calls Abercrombie & Fitch clothing classically “neo-preppy”, with an “edgy tone and imagery”.”

    So I can absolutely see why, if they’re trying to cultivate a cool edgy image, they wouldn’t want staff who might turn up in a black sack.

    So on this one, I’m siding with the store.

  28. Oh wow, so we can look forward to seeing a woman in a burkha working as a waitress at Hooters? The mind reels – would that be a step forward or backward?

  29. I would much rather wear full pirate regalia AND a head strainer. And the supreme court should have my back! Even if I am working in a brand name clothing department store. Either that or no exceptions. Not sure what the point of a dress code is if you make exceptions. What if she was working in a condition where wearing it was unsafe? I believe you answered that question. But the employer has a capital interest in the matter whether it’s fashion or safety related. Why does the excepting have to be religious? Please don’t say “that’s the law,” because the law doesn’t always make sense. What if I have superstitions about wearing khakis? They are bad luck! Do I have to make my own religion in order to be taken seriously? The real distinction is ultimately opinion. As you said, “a real religion.” Actually, I guess the IRS is the final authority on what is and isn’t a real religion. So it’s not just opinion. And I say that with confidence because everything involving the IRS is objective.

  30. I have a problem with uniforms or codes for employees where they aren’t safety-oriented, since in many cases they aren’t even “for marketing” – which is the grey area I don’t know what to say about.

    Doesn’t A&F sell non-clothing? I seem to remember them doing other matters, in which case the “brand image” may be irrelevant.

  31. Although this case was decided on statutory grounds, it bears noting that Religion Clauses cases frequently divide the Court along odd lines — with Justices rarely aligning the same way (or along the traditional liberal/conservative axis) in both Establishment clause and Free Exercise clause cases.

  32. The Daily Show had a segment on this.

    John Stewart said that it was a “Pyrrhic victory” to win the right to work in a “pseudo sex shop”.

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