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.
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?