Abercrombie Wants Supreme Court To Believe Religious Headscarves are Caps

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In a case of fashion vs. religious discrimination, Abercrombie & Fitch wants to convince the Supreme Court that, under its dress code, a headscarf is a cap.

On Wednesday, the Supreme Court listened to argument by the parties involved in the case of EEOF v. Abercrombie and Fitch

One doesn’t have to be an expert on preppie wear to understand that in plain meaning a cap is not a headscarf, nor is it a hat or a veil. But in the end, this case is not about caps and headscarves. It is about dress codes and how they can be used to discriminate against someone because of their religion and/or religious practices.

This case began when then 17-year-old Samantha Elauf applied for a job at Abercrombie and Fitch’s Woodland Mall store in Tulsa, Oklahoma. Employees of the company must follow the “Look Policy” intended to promote the “preppy” look, which applies to clothes, jewelry, facial hair and shoes. The policy prohibits caps and black clothing. Abercrombie’s ban on caps is based on the belief they are “too informal for the image we project.”

Elauf wore jeans, a T-shirt and a black headscarf for her interview with an assistant store manager. Elauf has worn a headscarf since she was 13 years old because she believes it is required by her religion. Although Elauf’s interview went well enough for the interviewer to recommend that she be hired, Elauf didn’t get the job. A friend who works at the store asked the assistant manager about the decision. The friend was told by the assistant manager Elauf wasn’t hired because of her headscarf per a regional manager’s decision to downgrade Elauf’s interview score because she wore a headscarf.

When the EEOF looked at the facts in this case, it concluded this was a case of religious discrimination under Title VII of the 1964 civil rights law that bans workplace discrimination. It argues that an employer cannot refuse to hire someone based on its understanding of her religious beliefs. In this case, the assistant manager understood that Elauf wore the headscarf because she is a Muslim. A Federal judge agreed with the EEOF. The Appeals Court for the 10th District sided with Abercrombie.

Abercrombie claims the anti-discrimination laws protect all applicants even if their religion is not well known or members of a religion have different understandings (or opinions) of their faith’s requirements. Moreover, employers aren’t supposed to ask applicants questions about their religion for the very reasons the EEOF pointed out. If Elauf wanted to wear a religious headscarf in violation of it’s “caps are too informal” policy, she should have asked for an exemption to the “look policy” during her interview. However, Elauf wasn’t aware of the company policy at the time of her interview. This begs the question, how does one seek an exemption to a rule they don’t know exists?

Accepting Abercrombie’s argument in this case would make it easy for employers to get around anti-discrimination laws simply by claiming ignorance about religious practices while expecting job applicants to be familiar not only with all company rules and how the company interprets those rules.

The fact is employers are in a better place to know their rules, how they are interpreted and if they might conflict with a potential employee’s religious practices. Certainly in this case, the store knew that Elauf was a Muslim and that is why she wore a headscarf. The store also downgraded her score, costing Elauf the job that A&F concluded she was qualified to do solely because she wore a headscarf because somehow they decided a headscarf is the same thing as a cap.

The bottom line is the court has a simple choice. Either it can uphold laws against discrimination in the work place, or it can hide behind the charade that a religious headscarf is a cap.