Supreme Court Explainer: Why the Abercrombie Hijab Case Matters

by
June 5, 2015

Earlier this week, the Supreme Court handed down an important decision for religious liberty. ERLC had joined in a brief to support Ms. Elauf’s case, and we are pleased that the Court ruled in her favor yesterday.

If you’re confused about what this case is about, here’s a brief overview:

What was this case about?

Samantha Elauf, a Muslim woman from Tulsa, Oklahoma, applied for a job at Abercrombie & Fitch. She wore her hijab, a headscarf worn by many Muslim women, to the job interview in accordance with her religious beliefs. What Ms. Elauf didn’t know was that Abercrombie has policy against wearing hats, caps, or any type of headwear in its employee dress code.

This put the Abercrombie store in a difficult position. But, according to an appellate court opinion, the store managers chose not to have a conversation about the underlying religious issues and whether there might be some compromise between Abercrombie’s dress code and Ms. Elauf’s religious beliefs. Instead, Abercrombie decided to deny Ms. Elauf the job based on an assumption that the headscarf would present a problem with the dress code.

What did Abercrombie & Fitch do wrong?

When making hiring decisions, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against job applicants on the basis of the employee or applicant’s race, color, religion, sex, or national origin. In the case of religious discrimination, this prohibition against discrimination is not absolute: employers may discriminate if they demonstrate that they are unable to make a “reasonable accommodation” for the religious observance or practice without “undue hardship on the conduct of the employer’s business.”

When presented with Ms. Elauf’s situation, Abercrombie had two options: make an exception for Ms. Elauf or make the argument that the headwear ban is so important to Abercrombie’s business that an exception for Ms. Elauf would put an “undue hardship” on the business.

Instead, Abercrombie chose not to hire Ms. Elauf, making neither an exception to the dress code nor an argument that an exception would be an undue hardship.

What did the Supreme Court decide?

The key issue before the Supreme Court was the fact that Ms. Elauf didn’t ask for an exception to Abercrombie’s dress code. As a result, Abercrombie assumed – but didn’t know for certain – that Ms. Elauf’s religious beliefs would conflict with the dress code.

Abercrombie argued that because the company did not actually know about Ms. Elauf’s religious beliefs, they were in effect permitted to discriminate.

The Supreme Court disagreed with Abercrombie’s position, deciding that Abercrombie had violated the Civil Rights Act by discriminating against Ms. Elauf. Practically, this meant that Abercrombie should have asked more questions about Ms. Elauf’s religious beliefs and made a reasonable accommodation for her.

Why does this case matter?

If Abercrombie had won this case, employers that suspected that a job applicant’s religious beliefs might create a conflict with employer policies could have discriminated against those employees without asking more questions.

Justice Scalia gave a practical example in the opinion of the Court:

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Because of this case, employers that have a reason to believe that they may need to make a accommodation for the religious beliefs or practices of a prospective employee will need to have a direct conversation about the issue.

This case is good news for religious people in our country. It means that religious beliefs and practices remain protected in the workplace, even when employers have only a suspicion that a job applicant’s religious beliefs may need to be accommodated.

This case also means that Christian business owners will need to continue to accommodate the religious beliefs and practices of members of other faiths, even when that is inconvenient. They can do so knowing that others will receive the same protections for their faith.

Wasn’t this already obvious?

While this is undoubtedly an important case, in a certain way this decision seems a little obvious. After all, this case was decided 8 to 1. The United States was founded as a place where different faith sects could live side by side and build a great society together in peace. Surely we should see that our employment policies will need to make accommodations for people that are not like us.

But this underscores an important point: religious liberty is not an obvious concept. In the course of human history, the protections for religious liberty that the First Amendment provides are anomalous; they are not the norm. We should never take this liberty as a given.

The human experience in much of the world for much of history has been the rule of man – the strongest wins. We are blessed to live in the United States, a place where the rule of law constrains the hand of the strong against the weak.

May we as Christians be diligent to stand with our friends of other faiths. May we remember that the First Amendment which protects them also protects us.


Travis Wussow
Travis Wussow is the director of international justice and religious freedom for the Ethics and Religious Liberty Commission.