BUSINESS

The Supreme Court of the United States (SCOTUS) is hearing arguments in a lawsuit against the giant clothing retailer Abercrombie & Fitch. The suit claims religious discrimination in not hiring a job applicant wearing hijab. (International Business Times)

Learn more about varying interpretations of hijab and how secular governments have responded.

Teachers, scroll down for a quick list of key resources in our Teachers’ Toolkit.

Discussion Ideas

• What is hijab? Look through our short photo gallery “media spotlight” for some help.
  • Hijab is an Islamic concept of modesty and privacy, most familiarly expressed in women’s clothing. Hijab garments range from simple headscarves (called khimaar or simply hijab) to head-to-toe cloaks such as abayas and burqas.

 

• How did hijab conflict with the Abercrombie & Fitch dress code (“Look Policy”)?
  • The Look Policy prohibited employees from wearing head coverings.

 

• What is religious accommodation? Can you think of an example of a business offering a religious accommodation to an employee or job applicant?
  • A religious accommodation is an exception in an employer’s work policy that would impose “minimal burden” on the operation of the business.
  • An example of religious accommodation may be to develop a work schedule that allows an employee not to work on his or her holy days. Religious accommodation also extends to non-religious accommodation. Excusing an atheist employee from a company prayer meeting is a religious accommodation.

 

• Do you think a company’s dress code prohibiting employees from wearing head coverings may infringe on an employee or job applicant’s freedom of religion? Is that what the Supreme Court is going to decide?
  • No, the Supreme Court will decide “[w]hether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a ‘religious observance and practice’ only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”
    • Basically: Should an employee or job applicant have to specifically tell an employer they would require religious accommodation to perform their job?
    • FYI: By all accounts, Abercrombie & Fitch knew the job applicant was wearing hijab, but she did not give “direct, explicit notice” of that fact. Abercrombie says its Look Policy is neutral toward religion, and did not discriminate against hijab, but prohibited all head coverings—hats, caps, scarves.

 

• Read through our short media spotlight on hijab. Companies are often influenced by government policy. How have different countries addressed hijab and religious accommodation?
  • In public spaces in the U.S., wearing hijab clothing is a right guaranteed by the First Amendment (freedom of speech and freedom of religion).
  • Saudi Arabia and Iran require women to wear hijab clothing in public.
  • In France, students, teachers, and government workers are banned from wearing “overt religious displays,” including hijab, Jewish kippah (skullcaps), and large Christian crosses. Small charms are allowed.

 

• What have lower courts had to say about EEOC v. Abercrombie & Fitch Stores, Inc.?
  • The first judge decided the retailer discriminated against Samantha Elauf, the job applicant. Abercrombie appealed this decision.
  • The U.S. Court of Appeals for the Tenth Circuit disagreed with the original judge, “ruling in a split decision that Title VII [of the Civil Rights Act] requires that employers have explicit, verbal notice of a job applicant’s religious needs that may conflict with company policy.” (The Tenth Circuit, based in Denver, Colorado, has jurisdiction over the Northern District of Oklahoma, where Elauf was denied employment by Abercrombie at a Tulsa mall.)

 

• What other groups may be impacted by the SCOTUS decision? Why?
  • Lawyers representing Christians, Jews, Buddhists, Hindus, Santeros, Sikhs, Zoroastrians, agnostics, and atheists have submitted briefs supporting the Muslim job applicant. Religious groups like these are a “protected class” under the Civil Rights Act of 1964. The Civil Rights Act also protects against discrimination based on race, color, national origin, and sex.
  • Disabled people and pregnant women are protected classes under the Americans With Disabilities Act and the Pregnancy Discrimination Act. At issue in the current SCOTUS arguments may be this: “[A] visibly pregnant woman applying for a job would have to specify that she is, in fact, pregnant. Otherwise, she would effectively be granting the boss more leeway to reject her application.“

 

• Would a ruling against Abercrombie & Fitch force the retailer to hire all hijab-wearing applicants and abandon its Look Policy?
  • No! Job applicants would still have to meet employment criteria required by the employer. Protected classes are simply protected from discrimination, not given preferential treatment.
  • Many classes of people are not specifically protected by federal anti-discrimination laws. For instance: Obese job applicants, who may or may not be excellent Abercrombie “models” (what the company calls its sales associates), are not a protected class. That does not mean companies can legally discriminate against them, just that they are not protected under some key federal laws.

 

• Will Abercrombie & Fitch have to change its Look Policy if SCOTUS decides for the prosecution?
  • No—they already have. The retailer settled two other discrimination cases related to hijab, and has already changed its Look Policy to acknowledge that headscarves can be accommodated in the workplace.

 

TEACHERS’ TOOLKIT

International Business Times: Abercrombie Goes To Court: Supreme Court Takes Up Religious Accommodation In The Workplace As Employment Discrimination Questions Linger

Nat Geo: Hijab: Veiled in Controversy

EEOC: What You Should Know About Workplace Religious Accommodation

(extra credit!) SCOTUSblog: Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. and Argument preview: Faith and a workplace dress code