Dive Brief:
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The U.S. Supreme Court ruled Monday, in an 8-1 decision, that an Abercrombie & Fitch job applicant who wore a head scarf — or hijab — for religious reasons and was denied a position because that violated the retailer's dress code could sue for discrimination. Justice Antonin Scalia said of the decision, “This is really easy.”
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The applicant had been awarded $20,000 by a jury, but that was overturned on appeal because, the appellate court said, she hadn’t told the retailer that she wore her head scarf for religious reasons when she applied for a job in 2008.
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But the Supreme Court ruled that even though Abercrombie wasn’t explicitly told that her head covering was religious, the company likely suspected it was religious garb, and that that was enough to make moves to accommodate her despite any dress code.
Dive Insight:
It’s easy to imagine that anyone who encountered this young woman, Samantha Elauf, might have guessed her head scarf was worn for religious reasons. But in his opinion and remarks at court, Justice Scalia said that doesn’t even matter. This ruling makes clear that potential employees do not need to request religious accommodation, but retailers and other companies must nevertheless follow Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring.
“Title VII forbids adverse employment decisions made with a forbidden motive,” Justice Scalia said from the bench, “whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”
Abercrombie & Fitch has already loosened its dress code for other reasons — the retailer is desperately trying to find out what will bring teenagers into its stores to buy its clothing. Regardless, Abercrombie and any retailer attempting to enforce a dress code must keep in mind that associates must be allowed to wear anything dictated by their religious traditions or tenets. That has been made more than clear with this ruling.
“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” Scalia wrote in his opinion on behalf of the majority of the Court.
