Today, the Supreme Court heard arguments in a case that will decide whether U.S. employers must have explicit knowledge of a job applicant’s religious faith to be subject to a discrimination suit if the applicant believes she wasn’t hired because of it.
The case was brought after Samantha Elauf, a Muslim who was rejected for a job as an Abercrombie & Fitch “model” because she wore a headscarf—despite the company saying they liked everything else about her (as you can see for yourself, she has a great Instagram). Elauf’s interview score was changed once an Abercrombie manager learned about her headscarf.
The company has already changed that “Look Policy” to explicitly allow for religious exemptions.
But the Justices still think the company’s interviewing process is fairly ridiculous.
Most incredulous was Justice Samuel Alito, who came up with the following scenario and asked what Abercrombie would do, according to the hearing’s transcript:
“Let's say four people show up for a job interview at Abercrombie. And half — this is going to sound like a joke, but, you know, it's not. (Laughter.) So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the 12 fourth is a Catholic nun in a habit.
“Now, do you think the employer has to — that those 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?'"
Abercrombie’s lawyer, Shay Dvoretzky, actually admitted that that scenario isn’t even that absurd because the company does group interviews. He also tried to explain that somehow in certain cases it would be more obvious that the headgear reflected the person’s faith.
“I think the reality is, it's a lot more difficult than the government imagines to start having these individualized dialogues,” he said. “But going to your point about those sorts of religious outfits, one can certainly imagine cases in which it is more obvious than others that a particular garb is likely worn for religious purposes.”
Alito continued a bit later, poking fun at Abercrombie’s image:
“So let's say that somebody comes in for an interview and this person is…has the look, looks just like this mythical preppy (laughter.) or somebody who came off the beach in California. Only one problem, the person is wearing a black blouse, which is against the Abercrombie rules. Now, would Abercrombie fire that — or would not hire that — person on the assumption that this person likes black so much this person is going to wear black every single day?”
Justice Elena Kagan posed another, even more outlandish scenario to challenge Abercrombie’s contention that it should fall on the job applicant to inform someone about their faith.
“Now, Mr. Dvoretzky, suppose an employer just doesn't want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish and the employer doesn't know he's Jewish. No absolute certainty and certainly Mr. Goldberg doesn't say anything about being Jewish, but the employer just operates on an assumption that he's Jewish, so no, he doesn't get the job. Is that a violation? (Laughter.) It doesn't matter whether the employer knows it to an absolute certainty, right?”
Dvoretzky replied that, of course, that would be discrimination, but that in Abercrombie’s case they are merely seeking to apply “a religion-neutral dress code.”
To which Kagan replied that even that kind of policy won’t work if a job applicant doesn't know about it.
“You just have to hire me, even if I'm wearing a headscarf,” she said. “The fact that you don't know that I'm wearing a headscarf for religious reasons, that you only kind of assume that, because most people do wear headscarves for religious reasons, it shouldn't make any more difference than in the hypothetical that I gave.”
The Court’s opinion is expected in late spring.
Rob covers business, economics and the environment for Fusion. He previously worked at Business Insider. He grew up in Chicago.