One week from today, the Supreme Court will hear arguments in a case charging Abercrombie & Fitch with illegally declining to hire a job applicant because she was wearing a hijab. The case could have far reaching consequences for how all businesses hire, because it would put the onus on employers, not employees, to tell a job applicant how one of their personal characteristics might put them at a disadvantage for a position.
In 2008, Samantha Elauf, then 17, went to apply for a job as a “model” at an Abercrombie store in Tulsa, Oklahoma. Elauf is Muslim and wears a hijab.
According to the Supreme Court’s decision granting next week's hearing, each Abercrombie job candidate is given a 3-point score on “appearance & sense of style,” whether the applicant is “outgoing and promotes diversity,” and whether the applicant has “sophistication and aspiration.” An applicant who receives a score of less than two for “appearance” is automatically disqualified.
The scores are based in part on Abercrombie’s “Look Policy,” which governs clothing, jewelry, facial hair, footwear. It also bars black clothing and “caps”, although it leaves caps undefined.
Elauf was initially given a score of 6 out of 8 by her interviewer, enough to get hired.
But before extending a job offer, the interviewer consulted with a regional manager, who decided that her hijab would violate the look policy, even though it was for religious reasons.
So the interviewer changed Elauf’s appearance score to a 1, disqualifying her from the job.
In granting Elauf’s petition to have her case heard, the Supreme Court blasted an immediate, prior ruling by the Tenth Circuit Court of Appeals in Denver that said Elauf should have explicitly asked Abercrombie whether her hjiab would be an issue, saying the decision conflicts with at least four other appeals’ courts opinions on the subject and “threatens broad adverse consequences” for job applicants.
In its filing asking the Supreme Court to turn down the case, Abercrombie argues Elauf needed to explicitly say that she was Muslim, and that other courts have upheld this view.
"More is required of an applicant before an obligation will be imposed on the prospective employer to provide an accommodation," they write.
But Jenifer Wicks, litigation director for civil rights at the Council on American-Islamic Relations, which has filed a brief in support of Elauf, said the Tenth Circuit’s ruling basically endorsed discrimination.
“The Supreme Court should reject the 10th Circuit explicit notice rule because it places unreasonable burdens on individual job candidates and employees who outwardly display their religion through dress and grooming practices,” she said in an email. “Contrary to the underlying assumption upon which the explicit notice rule rests, it is employers, rather than potential employees, who are intimately familiar with their own workplaces and policies, and therefore are often better able to predict a need for a dress or grooming-based religious accommodation.”
In 2013, Abercrombie came to a $71,000 settlement with a class of Muslim employees who sued the company charging discrimination.
Rob covers business, economics and the environment for Fusion. He previously worked at Business Insider. He grew up in Chicago.