Abercrombie & Fitch is known for its shirtless male models, but it might have to get used to women in headscarves.
The Supreme Court ruled today that the iconic retailer discriminated against a job applicant, Samantha Elauf, when they refused to hire her because her headscarf conflicted with A&F’s “look policy.”
Even though Abercrombie didn’t absolutely, definitely know that Elauf wore a headscarf because she was a Muslim, the court ruled 7-2 that the refusal to accommodate her, plus “suspicion” that the accommodation was for religious reasons, was enough to count as religious discrimination.
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This was surely the right result—especially if you read between the lines.
First, Abercrombie’s claim that they didn’t know that Elauf was Muslim runs afoul both of Title VII and common sense. As for the statute, Justice Scalia, writing for the court, observed that other antidiscrimination statutes do have a knowledge requirement—but Title VII does not. That silence speaks volumes. Even if an employer doesn’t know for sure, if it has an anti-religious motive for refusing to hire someone, that is enough.
But come on. There’s evidence in the record that some Abercrombie employees assumed that Elauf was Muslim. And why did they think she was requesting the exception anyway? Because she really likes headscarves? Although Justice Scalia didn’t say so explicitly in his opinion, Abercrombie’s literalistic interpretation of “knowledge” flies in the face of common sense. There should be no need to jump through the legalistic hoops of establishing Elauf’s religious identity—especially when asking about it directly would, itself, violate the law.
Interestingly, Abercrombie has already changed its “look policy,” after two separate lawsuits brought by Muslim women were settled in 2013. Outrageously, Abercrombie had enforced the policy even against a woman working in the stockroom. At a certain point, one begins to wonder about their motives.
It’s also relevant that the opinion was written by Justice Scalia, who has long taken an expansive view of religious liberty—especially in more controversial cases like Hobby Lobby. Given that corporations may be exempted from federal law on the basis of religion, it’s not surprising that individuals may be exempted from look policies.
But this was not a close case. The vote was 8-1, with only Justice Thomas dissenting. Like the recent case of Holt v. Hobbs, in which the court unanimously ruled that the state of Arkansas must allow a prison inmate to grow a short beard for religious reasons, EEOC v. Abercrombie is the kind of religious liberty case that conservatives and liberals can agree upon. No one is harmed by Elauf’s wearing of a headscarf. Abercrombie’s look policy, even before its revision, only prohibited “caps” because they were “too informal”—hardly applicable here. (Media reports that she wears a full hijab are incorrect. Actually, she buys her scarves in ordinary, secular stores, according to the court record.)
In fact, cases like this one highlight the differences between actual religious discrimination cases and the kinds of religious “discrimination” that have lately become Republican presidential talking points. Actual religious discrimination is when an individual’s free exercise of religion is restricted for no defensible reason. That’s what the case is here.
But it’s not discrimination when that exercise of religion is, itself, discriminatory against someone else. My religion may teach that black and white people should not be seated together in a restaurant, but I don’t get to use that religious teaching as a weapon against other people. It’s not discrimination to forbid me to discriminate.
It also matters that Elauf was discriminated against because she was a Muslim—Islamophobia being another Republican presidential talking point. Of course, religious liberty is a neutral principle that applies to people of all faiths. But as the record in this case makes clear, minority religions tend to bear the brunt of the attack. Would a Christian employee be required to remove her cross necklace because of a “look policy”? Would a Catholic have to wipe off her forehead on Ash Wednesday?
Who knows—but Abercrombie’s record when it comes to Muslim women, and that of our society in general, suggests not. After all, there aren’t big rallies at which portraits of the Virgin Mary are defaced, as there are now “Draw Mohammed” contests popping up around the country.
So it matters that this was an opinion written by a conservative defending the right to religious liberty, even if that term has been co-opted of late. It matters that it validates the rights of a Muslim, when even right-wing religious liberty activists are occasionally attacked by right-wing Islamophobes. And it matters that Abercrombie has already revised its policy, and that its brand is often associated with white-bread America.
Abercrombie will be remembered as an uneventful employment discrimination case, finding no “knowledge” requirement in a section of Title VII. But like Holt v. Hobbs, it is also a sign of a changing America, and of the capacity of conservatives and liberals alike to live out our better values.
