Young, pretty and a self-described mall rat, 17-year-old Samantha Elauf seemed like just the kind of employee youth-oriented Abercrombie & Fitch Co. seeks out for its sales staff.
Except for that headscarf, apparently.
When Elauf interviewed in 2008 for a sales position at an Oklahoma store, she didn’t volunteer that the hijab she wore was related to her Muslim religion. Nor did the interviewer ask. But the company declined to hire her, saying her scarf violated its dress code.
The company had no reason to know that her headscarf was related to her religion, its lawyers argued — a claim that seems a little dubious. Only someone who’s been living under a rock would look at Elauf and think, “Headscarf? Wonder what that’s all about?”
The company had a reputation for only hiring staff who could have just stepped off a runway — its “look policy.” It recently changed its hiring policies to accommodate more diversity — including people with only average looks and those “with sincerely held religious beliefs.”
But that change didn’t happen in time to save the retailer from getting slapped this week — and rightly so — by the U.S. Supreme Court. It ruled 8-1 that the company’s rejection of Elauf was discriminatory because it took her religion into consideration in its decision not to hire her. The company likely suspected that the headscarf was related to her faith, wrote Justice Antonin Scalia for the majority.
“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” he wrote. Federal law requires employers to accommodate workers’ religious needs if feasible. Clearly it would not have been a stretch for the store to accommodate Elauf’s headscarf.
There are instances when a person’s attire are a reasonable barrier to landing a job. A strip club, for instance, or even a Hooter’s, shouldn’t have to hire someone who declines to wear the “uniform” of that workplace. That wasn’t the case with Elauf.
It’s important that the Supreme Court sent out a strong, nearly unanimous message about this kind of employment discrimination. Muslim groups say it is widespread in the United States, often triggered by a woman wearing a headscarf. The ACLU reports that 69 percent wearing hijabs say they have experienced discrimination, compared to 29 percent of women who do not wear the headscarf.
Pierce County has had flaps involving religious clothing in recent years, with two judge being admonished for ordering Muslims to remove their headwear during court proceedings.
The court decision this week reinforces the First Amendment right of people to freely express their faith unless there’s a persuasive case against it. One reason would be security-related: A person can’t wear a full-face veil in a driver’s license photo, for instance.
This is in contrast to countries like France, which has banned full-face veils in public. It doesn’t allow headscarves — or other religious symbols such as yarmulkes and large crucifixes — to be worn in elementary and secondary schools. And private businesses can ban hijab wearers as employees and customers.
Among the United States’ first European settlers were people fleeing religious persecution. It is only right that Americans today have as much freedom of expression as reasonably possible. The court decision is a welcome one.