High Court Leans Toward Religious Protection In Headscarf Case Did Abercrombie & Fitch violate a prohibition against religious discrimination by not hiring a woman who wears a hijab? The company contends it just has a neutral policy against wearing caps.
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High Court Leans Toward Religious Protection In Headscarf Case

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High Court Leans Toward Religious Protection In Headscarf Case

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High Court Leans Toward Religious Protection In Headscarf Case

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KELLY MCEVERS, HOST:

Faith and fashion clashed at the U.S. Supreme Court today. It's a case of enormous importance to job applicants and employers. On one side, clothing company Abercrombie and Fitch, and on the other, a teenage job applicant who was rejected because she wore a headscarf. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: You know that it's going to be a hot argument at the Supreme Court when the usually straight-faced justice Samuel Alito begins a question this way - let's say four people show up for a job interview at Abercrombie - this is going to sound like a joke, but it's not - the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third, a Muslim woman wearing a hijab and the fourth, a Catholic nun in a habit. Now do you think that these people have to say, we just want to tell you we're dressed this way for a religious reason - we're not just trying to make a fashion statement?

Not surprisingly, Abercrombie's lawyer fudged his answer. There were no nuns or Sikhs in the case before the court, just Samantha Elauf who was 17 when she applied for a job at an Abercrombie store in Tulsa, Okla. She was interviewed by an assistant manager, given a high score and recommended for hiring. But the assistant manager alerted her superiors to the fact that Elauf wore a headscarf, presumably for religious reasons. Ultimately, the hiring recommendation went to a regional manager who ordered Elauf's score downgraded because of the headscarf, and her application was rejected.

Abercrombie defends its action citing its so-called look policy, which bans caps and black clothing. Elauf's dress for the interview, a T-shirt and jeans, fit in well with that policy, which is described as, quote, "classic east coast collegiate-style clothing," but her headscarf did not. The look policy does not allow caps, terming them, quote, "too informal for the image we project." Abercrombie maintains that if Elauf wanted a religious exception to allow 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 her religious practice violates the federal law banning religious discrimination in employment. The Equal Employment Opportunity Commission agreed with her.

Today, representing the agency, Deputy Solicitor General Ian Gershengorn argued that when an employer has reason to believe that an applicant will need a religious accommodation, that's enough to put the employer on notice and to trigger a conversation about whether a religious accommodation would be a hardship for the employer.

Chief Justice Roberts - wouldn't that promote stereotypes to a far greater degree? Let's say an applicant shows up with a beard and Abercrombie has a no-beards policy. You think an interviewer should ask whether there's a religious reason for the beard?

No, said Gershengorn - the New York Yankees, for instance, have a policy against facial hair, but that doesn't prevent them from pursuing free-agents who wear beards.

Justice Scalia was Abercrombie's only hardcore supporter, contending that the way to avoid these difficult questions is to say the burden is on applicants to say, I'm wearing this headscarf for religious reasons.

Several justices suggested that the easy way to deal with the problem is for the interviewer to instead say something like, we have a no-beards policy or a no-headscarfs policy. Would you have a problem with that?

The government's Gershengorn said that's exactly the kind of question that would begin a conversation about religious accommodation, and it's what Congress intended in passing this law. Abercrombie's lawyer, Shay Dvoretzky, however, insisted that the burden is on the applicant, prompting Justice Alito's four-people-walk-in-to-an-interview hypothetical.

Justice Kagan - suppose an employer 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 with certainty he's Jewish, and certainly Mr. Goldberg doesn't say anything about being Jewish, but the employer just assumes that he is so he doesn't hire him. That's got to be against the law, right?

Lawyer Dvoretzky contended that Abercrombie's situation is different because there was no intent to discriminate. There was just a neutral no-caps policy that applies to a baseball cap or a headscarf - or a yamaka, interjected Justice Ginsburg. The problem, she said, is that the federal law makes refusal to make a religious accommodation itself a violation.

Justice Kagan - if you're wearing a headscarf for religious reasons, Abercrombie's neutral policy really doesn't matter. If Ms. Elauf prevails in the case, Kagan continued, the result would be what some might think of as an awkward conversation about why she wears a headscarf and whether she'd seek a religious accommodation. The alternative is a rule where Abercrombie just gets to say, we're going to stereotype people and prevent them from getting jobs. Now, between those two options, which one seems worse? There didn't seem to be much doubt about which option the court will pick. Nina Totenberg, NPR News, Washington.

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