Supreme Court rules against Abercrombie and Fitch in hijab case


In a case that made justices literally laugh out loud, the Supreme Court ruled Monday that the way Abercrombie and Fitch applied its dress code was unconstitutional.

At issue was whether the clothing retailer (which has since changed its policy) unfairly turned down a job applicant for wearing a hijab on the basis of the company’s “Look Policy,” which banned all headgear.

Abercrombie had argued that because the applicant, a Muslim woman named Samantha Elauf, never explicitly stated that her religion obligated her to wear a head covering, the company could not have known it was discriminating against her when it rejected her from its hiring pool.

But the court said the policy was inherently discriminatory because it would by definition conflict with individuals who wore certain clothes (or do anything else) for religious reasons.

“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” the court said in a 8-1 opinion (Justice Clarence Thomas concurred in part and dissented in part). “Title VII contains no knowledge requirement.”

Jenifer Wicks, litigation director for the Council on American-Islamic Relations, hailed the decision.

“It sends clear message to all employers that making employment decisions based on any factors related to a religious belief or practice are not tolerated, unless an employer demonstrates that it is unable to reasonably accommodate to the employee’s or prospective employee’s religious practice. without undue hardship on the conduct of the employer’s business.”

Writing for the majority, Justice Antonin Scalia gave the following 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.

A lot has happened to Abercrombie since 2008, the year Elauf tried to apply for her job at an Oklahoma outlet. It recently fired longtime CEO Mike Jeffries amid plummeting sales, and has stopped selling shirts bearing the Abercrombie logo. It also ended its use of beefcake greeters.

In a statement, the company said it was determining its next steps:

A&F remains focused on ensuring the company has an open-minded and tolerant workplace environment for all current and future store associates. We have made significant enhancements to our store associate policies, including the replacement of the ‘look policy’ with a new dress code that allows associates to be more individualistic; changed our hiring practices to not consider attractiveness; and changed store associates’ titles from ‘Model’ to ‘Brand Representative’ to align with their new customer focus.

Heather Arnet, CEO Women & Girls Foundation, which led a successful “girlcott” against Abercrombie in 2005 for selling sexist & racist t-shirts, praised the decision.

“Today the Supreme Court made a decision in support of equal opportunity, religious freedom and against discrimination and oppression,” she said in an email. “Abercrombie has tried to make fashion & corporate policy out of prejudice & failed once again. From size discrimination to racist t-shirts and hiring policies, this brand is learning that discriminatory practices will get them nowhere.”

Rob covers business, economics and the environment for Fusion. He previously worked at Business Insider. He grew up in Chicago.

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