WASHINGTON — Justice Samuel A. Alito Jr. last week warned that “this is going to sound like a joke,” and then posed an unusual question about four hypothetical job applicants. If a Sikh man wears a turban, a Hasidic man wears a hat, a Muslim woman wears a hijab and a Catholic nun wears a habit, must employers recognize that their garb connotes faith — or should they assume, Alito asked, that it is “a fashion statement”?
The question arose in a vigorous Supreme Court argument that explored religious stereotypes, employment discrimination and the symbolism of the Muslim head scarf known as the hijab, all arising from a 2008 encounter at Woodland Hills Mall in Tulsa, Okla.
Samantha Elauf, then 17, sought a job in a children’s clothing store owned by Abercrombie & Fitch. She wore a black head scarf but did not say why.
The company declined to hire her, saying her scarf clashed with the company’s dress code, which called for a “classic East Coast collegiate style.” The desired look, Alito said, was that of “the mythical preppy.”
Elauf recalled the experience in a statement issued after the argument.
“When I applied for a position with Abercrombie Kids, I was a teenager who loved fashion,” she said. “I had worked in two other retail stores and was excited to work at the Abercrombie store. No one had ever told me that I could not wear a head scarf and sell clothing.
“Then I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith,” she added. “This was shocking to me.”
Elauf, now 24, works at an Urban Outfitters store in Tulsa. A spokeswoman for the Equal Employment Opportunity Commission, which sued Abercrombie on her behalf, said Elauf was declining interview requests.
A spokesman for Abercrombie & Fitch, Michael Scheiner, said the company “has a long-standing commitment to diversity and inclusion, and consistent with the law has granted numerous religious accommodations when requested, including hijabs.”
The Supreme Court on Wednesday seemed sympathetic to Elauf’s position, which is that she should not have been required to make a specific request for a religious accommodation to wear a hijab. The company’s position is that it should not have been made to guess that Elauf wore a head scarf for religious reasons.
In response to Alito’s question about the four hypothetical applicants, Shay Dvoretzky, a lawyer for the company, conceded that some kinds of religious dress presented harder questions, but he said the court should require applicants to raise the issue of religious accommodations.
Several justices suggested that an employer should simply describe its dress code and ask whether it posed a problem. That would shift the burden to the applicant, they said. If the applicant then raised a religious objection, the employer would be required to offer an accommodation so long as it did not place an undue burden on the business.
That approach, Dvoretzky said, would itself require stereotyping.
But Justice Elena Kagan said that the approach was the lesser of two evils. On the one hand, it could require an “awkward conversation,” she said. “But the alternative to that rule is a rule where Abercrombie just gets to say, ‘We’re going to stereotype people and prevent them from getting jobs.’ ”
Justice Ruth Bader Ginsburg added that Elauf had not even known that her hijab was a problem.
“How could she ask for something when she didn’t know the employer had such a rule?” Ginsburg said.
The store’s manager at first recommended that Elauf be hired. But after consulting with a district manager, she concluded that Elauf’s appearance posed a problem.
The Equal Employment Opportunity Commission said the company had violated the Civil Rights Act of 1964, which prohibits religious discrimination in hiring. At the trial, Elauf said she loved movies, shopping, sushi and the mall. “It’s like my second home,” she said.
She was saving, she said, to open her own boutique. It would sell “really fashion-forward stuff, cute stuff,” Elauf said.
Her experience with Abercrombie made her feel “disrespected because of my religious beliefs,” she said. “I was born in the United States, and I thought I was the same as everyone else.”
A jury awarded Elauf $20,000.
But the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled for the company. “Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her head scarf, or ‘hijab,’ for religious reasons,” Judge Jerome A. Holmes wrote for the court.
The company has maintained that it had no reason to know that Elauf’s head scarf was required by her faith. In its brief in the case, EEOC v. Abercrombie & Fitch Stores, No. 14-86, it said job applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”