SCOTUS and the Case of the Hijab

Samantha Elauf lost out on a job with Abercrombie & Fitch because of her religion. So says the June 1st ruling of the Supreme Court. Elauf wears a hijab, a Muslim head covering. Abercrombie & Fitch used the head covering as an excuse not to hire her as a salesperson in an Oklahoma branch of the store.

While originally Elauf was awarded $20,000 for discrimination, a federal court overruled the decision, based on the fact that Elauf had not asked for an accommodation for her religious needs at the time her job application was rejected. SCOTUS however, has ruled that it does not matter that Elauf did not request a religious accommodation and finds that Elauf was discriminated against on the basis of her religion. Now that SCOTUS has reversed the ruling of the federal court, there’s no telling what sort of monetary reward the plaintiff will receive.

While Elauf will likely make a handsome profit from her up close and personal experience of discrimination, Abercrombie & Fitch has lost big time. Have everyday Americans gained something from this landmark case on discrimination? What precedent has been set by the ruling in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., and what does this precedent mean to average Americans going forward?

From now on, it seems, American businesses will not be able to reject potential employees who might scare away customers because of the obvious associations such customers might make between appearance and religion. It stands to reason that Abercrombie & Fitch didn’t have an issue over hiring a Muslim, but rather were concerned about how Elauf’s headdress might affect business. In other words, this was not really a case of discrimination, per se, but an issue of what does and doesn’t drive sales.

Would a potential customer hesitate to enter the store on seeing a saleswoman wearing a hijab? Is there a natural mental association between radical Islam and Islamic orthodoxy? Are Americans somewhat traumatized by 9/11 and Islamic terror to the point that they fear contact with those wearing clothes marking their wearers as religious Muslims?

The crux of the problem here goes back to the reason the federal court overturned the original decision: the absence of a request for religious accommodation. In its decision, SCOTUS rejects the idea that the plaintiff would have needed to request religious accommodation or that her potential employer should have been given the opportunity to provide such an accommodation. The idea is rejected because the law on discrimination focuses on intentions/motives. If Abercrombie & Fitch knew that Elauf would need an accommodation and failed to hire her because the store wanted to avoid having to accommodate her, that motive speaks to discrimination. The ruling compares the situation of Elauf and Abercrombie & Fitch with that of an orthodox Jewish job applicant as follows:

“The intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious

practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

Is the example cited by the court of the orthodox Jew’s possible need for Shabbat accommodations analogous to that of Elauf and her headdress? Elauf was discriminated against on the basis of her appearance, whereas the case of the orthodox Jew is not about appearance, but about scheduling. Why does this distinction matter?

The potential Jewish employee’s religious needs might affect trade. If Saturday sees the briskest number of sales, then Saturday is the time when the employer needs more and not fewer salesmen. Ultimately, however, it should be possible to find someone else to work those hours, making it possible to accommodate both the potential employee and his employer.

In the case of Elauf, however, it wouldn’t matter when she’d work: there’d always be the issue of her appearance and the effect this might have on trade. Would potential customers see her there and decide to shop elsewhere as a result of Elauf’s appearance? Whether or not it is palatable that customers might discriminate on the basis of a saleswoman’s appearance and religion is not the point here. The point is that the employer would be punished for his customers’ bigotry and/or fear. Meanwhile, a Jewish employee, whether or not he wears readily identifiable religious garb, would not drive away trade by needing to stay home on Saturdays.

Perhaps the distinction regarding the reason for a potential employer’s discrimination is why the federal court ruled as it did. Is it possible that Elauf might be accommodated so that her religious needs are protected and customers aren’t confronted with the sight of a salesperson they fear might be radicalized? Is there some other form of headdress she might wear instead that would serve to fulfill her religious obligations without scaring off the customers?

Muslim women in France are currently dealing with this same issue. In France the hijab headscarf has been banned in schools. Sheikh Ahmad Kutty, an Islamic scholar affiliated with the Islamic Institute of Toronto, Canada, has been cited as saying that in the case where the hijab headscarf is banned, “Muslim women are allowed to use the best possible alternatives available to them. If wearing a bandana is the only option, they are allowed to do that, for it fulfills some requirements of hijab, while keeping in mind that it is not a full substitute for hijab, since it does not cover the neck. But until such time that the pressure is off, they are allowed to wear it to school or other places where hijab is banned.”

While no one is speaking of a ban on the scarf in the United States, and everyone should feel free to dress according to personal religious beliefs and dictates, there is a real association between radicalized Islam, the wearing of the hijab, and terror. Americans have bent over backward to not let their personal prejudices get in the way of freedom of expression. On the other hand, the associations of regular Americans are not spurious. They are based on real and current events.

The broader issue here is that the issue with Elauf has little to do with discrimination. Most Americans have no problem with religious beliefs, including Islamic beliefs. What they do have a problem with, is terror. Americans want to feel safe. The sight of a hijab-clad saleslady may very well inspire fear in someone well-versed in today’s headlines, or in someone who has lost a loved one to Islamic terror.

To carry the example of the potential orthodox Jewish employee one step further, it would be difficult to envisage a customer being frightened by side curls or a black frock coat, unless one were indoctrinated by the untruths of the Protocols of the Elders of Zion. Fears of Muslims in traditional dress, on the other hand, would seem to be grounded in fact, not fiction. When fear is based on fact, is it still considered discriminatory to act on that fear (stay out of the store, stay safe)? Can such fears instead be attributed to the application of common sense as opposed to religious discrimination or an expression of distaste as regards a religion and its beliefs?

Did the Supreme Court do right by Abercrombie & Fitch and by Americans in general? Or did an important point -- the fact that real people are frightened of Muslims because real people are being murdered by real, religious Muslims all over the world -- get lost in the sauce? In curtailing the freedom of businesses to hire salespeople most likely to attract custom, did SCOTUS just discriminate against employers?  And by ruling as it did, did SCOTUS just coincidentally give Islamists a pass on the extreme and urgent need for religious reform?

Varda Meyers Epstein is a political analyst and contributor at Israellycool and editor at the Kars for Kids educational blog for parents.