Abercrombie & Fitch maintains a dress code for employees known as its Look Policy. Headwear is not allowed under the policy because it is “too informal for Abercrombie’s desired image.” Samantha Elauf, a practicing Muslim who wears a headscarf, interviewed for an available position for which she was found to be qualified. Still, Elauf was not hired because the District Manager, who was told by another manager that she thought Elauf’s scarf was a religious requirement, decided that “Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise . . . .”

The Equal Employment Opportunity Commission sued Abercrombie for religious discrimination, where it prevailed at the trial level, obtaining judgment for Elauf of $20,000. A federal appellate court reversed that judgment — Abercrombie’s neutral dress code policy was not discriminatory on its face and Elauf sought no accommodation.

This week, the Supreme Court reinstated the trial court’s judgment in favor of the EEOC and Elauf in an 8-1 decision. Justice Scalia wrote the opinion of the Court, with Justice Thomas as the lone dissenter. The primary issue addressed by Justice Scalia was whether an employer must have knowledge of an applicant’s religion in order to be held responsible for discrimination. Abercrombie argued that they only had a suspicion but no knowledge of Elauf’s religious status. Justice Scalia, writing for the Court, said that Title VII “does not impose a knowledge requirement.” He explained that an employer may have a no-headwear policy, but, when an applicant requires an accommodation, “Title VII requires otherwise-neutral policies to give way to the need for accommodation.”

The Abercrombie opinion leaves employers in a devilish situation. If an applicant is sporting dreadlocks, does the employer have to consider what accommodations it may have to make for the person as a potential Rastafarian? Does an applicant’s Star of David necklace impose an employer duty to discuss accommodation for Saturday work? Does a Crucifix necklace merit discussions about Sunday work? These are things that now must be sorted out by courts below.

In addition to Justice Scalia’s opinion, lower courts may consider the writings of two other Justices in this case. Justice Thomas’s dissent would disallow the enforcement of a neutral policy, such as a dress code, to be evidence of individual discrimination. Interestingly, Justice Alito penned a concurring opinion to say that Abercrombie’s suspicion is what got them in trouble with him. If they had not speculated about the headscarf as a religious concern, they would not have violated the law, he said. None of the so-called liberal or swing justices wrote one word.

As Supreme Court opinions go, this one is brief. It leaves much to be addressed later. For example, no religious accommodation is required if it would impose an “undue hardship.” In the commercial world, what exactly is an undue hardship? Treatment of religion engenders high emotional responses. Disputes in that arena show no sign of abating. We are well warned to be wary whenever religion comes into play.

The Court’s decision is Equal Employment Opportunity Commission v. Abercrombie & Fitch.



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