Headscarf Wearer Wins in US Supreme Court

A perennial chestnut of my comparative-law seminars is the treatment of Muslim women who wear headscarves in the USA and Germany. So my news ticker let me know that a woman named Samantha Elauf just won her case before the Supreme Court, in an 8-1 decision, the New York Times reports. From a Cornell Law School summary: 

In 2008, seventeen-year-old Samantha Elauf, a self-proclaimed practicing Muslim, interviewed for a Model position at an Abercrombie Kids store in Tulsa, Oklahoma.During her interview, Elauf wore Abercrombie-style clothing and a black hijab—a religious headscarf. The assistant manager interviewing her, Heather Cooke, did not confirm Elauf’s religion but “assumed that she was Muslim.” During the interview, Cooke did not ask Elauf about her headscarf and Elauf did not bring it up. Although Cooke thought Elauf was a good candidate, Cooke asked her supervisor if wearing a headscarf was permissible and whether the headscarf could be black. The supervisor escalated this question to the district manager, Randall Johnson, who declared that Elauf’s headscarf violated the Look Policy and Elauf should not be hired. Cooke claims that she informed Johnson that Elauf wore a headscarf for religious reasons but Johnson denies this claim.

On September 17, 2009, the Equal Employment Opportunity Commission (“EEOC”) filed a Title VII action in theUnited States Northern District of Oklahoma (“district court”) alleging that Abercrombie rejected Elauf because she wore a hijab and then failed to make a religious-based exception to its Look Policy. The district court ruled in favor of the EEOC, reasoning that Elauf’s wearing of the headscarf coupled with Cooke’s knowledge that Elauf wore the headwear as part of a religious belief provided sufficient notice of the need for a reasonable religious accommodation, awarding the EEOC $20,000 in compensatory damages.

The issue here was narrow. Since 1964, there has been no debate that a private company cannot refuse to hire someone based on their religious belief or core religious practices. If the company believes there may be a conflict between the employees’ religion and job requirements, the company must first try to find a reasonable accommodation. Simply refusing to hire someone on the basis of their religion is illegal. The only question in this case was whether Elauf told her employer she wore a headscarf for religious reasons.

The court held she didn’t need to prove this, since any reasonable employer would at least suspect that a female wearing a headscarf is probably doing so for religious reasons. Thus even the reliably conservative Justice Antonin Scalia called this case ‘easy’. Justice Clarence Thomas was the only dissenter, hie thinks that (1) because Abercrombie & Fitch had a general policy that its employees can’t wear ‘caps’; and (2) a headscarf is a kind of cap, therefore A & F was simply applying a neutral policy to every job applicant, and wasn’t discriminating.

Decision in .pdf form is here for you law nerds.

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