Sunday, June 07, 2015

206.4 - Update: the hijab versus Abercrombie and Fitch

Update: the hijab versus Abercrombie and Fitch

Now for an Update on something we have talked about before.

Okay, in September 2013 I talked about the case of Hani Khan, who was fired from her job at a Hollister - Hollister being a wholly-owned subsidiary of Abercrombie + Fitch - store in San Mateo, California after some corporate higher-up saw her wearing a hijab, the headscarf that some Muslim women wear as part of their religion. Headscarves, it seems, violated A+F's "look policy" and she was given the choice of no hijab or no job. I was able to say at that time that the Equal Employment Opportunity Commission, the EEOC, has sued on her behalf and had won.

Four weeks later, in October 2013, I talked about the case of Samantha Elauf, who had been denied a job at an A+F Kids store in Tulsa Oklahoma because she wore a hijab to her job interview. The EEOC had sued on her behalf, but this time they lost in Appeals court, after winning at the district level, as the 10th Circuit Court of Appeals wholly embraced A+F's contention that the corp's look policy was critical to the health and vitality of its "preppy" and "casual" brand.

More significantly, that court found that there was no basis for a claim of discrimination because Elauf never explicitly asked for a religious accommodation for her wearing of the hijab, which was not in line with the company's dress code. Exactly how she, as a job applicant, was to know what that dress code was and how the hijab might violate it seemingly went unexplained.

At the time, I wrote that, quoting,
It is reasonable to think that any basically competent interviewer, with this woman wearing a hijab sitting opposite them, would have been aware of a potential conflict and asked if this would be a problem for her - unless, that is, as is also reasonable to think, the interviewer deliberately did not bring it up in order to have a basis for not hiring her, a basis that would be stripped away if she were asked the question and raised the issue of a religious accommodation.
And that last point, actually, became the issue in an appeal to the Supreme Court. And I'm happy to be able to tell you that on June 1, the Supreme Court ruled overwhelmingly, by 8-1, in favor of Samantha Elauf and the EEOC.

Samantha Elauf
The court found that the fact that Elauf did not specifically ask for a religious accommodation did not prevent A+F from being sued for discrimination when it was obvious from her appearance at the job interview that the need for such an accommodation might arise.

According to the Court opinion, delivered by of all people Justice Antonin Skeletor, an employer seeking to avoid having to make a religious accommodation violates civil rights laws regarding religion “even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

In other words, suppose an employer does what I suggested a year and a-half ago could be going on: deliberately avoids bringing up the potential conflict with the "look policy" - of which in fact Elauf was never told - in order to have a basis for not hiring her while denying discrimination on the grounds that "she never asked for an accommodation."

The court very forcefully said "sorry, that won't fly."

It's important to realize something that has not been clear in a lot of coverage of this, including by some reliably lefty outfits: This decision does not find that A+F discriminated against Elauf. That wasn't the question before the court. What it means is that her suit claiming discrimination can proceed because her failure to specifically ask for a religious accommodation does not bar such a suit when the employer has a reasonable basis to believe such an accommodation may be necessary. So now the case was sent back to the lower court for review of the basic issues.

What the decision also means - and this is surely more important than an individual case - is that employers may find it a little harder to get away with discriminating against job applicants based on the hope the applicants won't know the discrimination is happening.

Which surely is, again, good news.

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