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Justices Appear To Favor Muslim Denied Job Over Headscarf

Samantha Elauf stands outside the Supreme Court in Washington, Feb. 25, 2015.
Associated Press / Pablo Martinez Monsivais
Samantha Elauf stands outside the Supreme Court in Washington, Feb. 25, 2015.

Justices Appear To Favor Muslim Denied Job Over Headscarf
Justices Appear To Favor Muslim Denied Job Over Headscarf GUEST: Dan Eaton, employment law attorney, Seltzer Caplan McMahon Vitek

Our top story midday edition antidiscrimination laws protect employees from unfair hiring practices and to religion is one of the areas protected by these laws. Is it an employers job to determine if an item of clothing or a beard or a hairdo has religious significance? Should be up to the employee to let their employer no clocks that was one of the questions raised during arguments before the US Supreme Court yesterday. The case involves a young Muslim woman who wore her Hijab head covering to an interview at Amber Convery and Fritsch retail store and Oklahoma. The store ultimately determined that the headscarf did not comply with the companies appearance standards and did not give her the job. The case has raised issues over how businesses need to conduct interviews to determine religious exemptions for joining me is Dan Eaton our legal analyst to practices employment law at seltzer Caplan McMahon. Dan is fighting a cold today. I am. My voice is not the usual 10 one more like a baritone. We will work with that. Thank you for coming in. This case about employment practices I know is up your alley. Tell us more about the basics of this case? Who is bringing this lawsuit? Actually was bring this is equal opportunity employment commission but that is the federal antidiscrimination agency and they are bring it on behalf of a woman by the name of Trent eight who was when she was 17 years old she was very into fashion. She decided to apply to a job at Abercrombie and Fitch who students tell me cells hip clothing, whatever that means. She wanted to get the job. The system manager liked her who interviewed her and she was wearing a Hijab at the time but they did not talk about why. The assistant manager goes to another official who says, no, that is not going to work just look policy which requires them to have an Ivy League or preppy manner. She did not get the job figures interesting thing prequel of all apply for dresses of job. We did not know why we did not get it. Samantha was told so she went to see some activist the EEOC got involved in that is where we are. Let's break this down to live it. Abercrombie and Fitch has a strict looks policy actually calls its employees sales models. It is especially important for this business to present a certain kind of image. The point you raise of course is it as part of their brand identity and that is why Abercrombie and Fitch is an unusual case in this particular case because most of them say, what is the problem here? The fact is that Abercrombie and Fitch does present a very specific way of looking and they are saying, what exactly are we supposed to do in this case which is why this got to the Supreme Court. You told us of the interview went and the assistant store manager liked Samantha very much when she came into all apply but she scratched her head about the headscarf and said, I think I better run this with my district manager. What happened when she told the district manager about this applicant? Not going to happen. The country is not going to work with our look policy. You have to decline the applicant. Ms. Lopp was ejected -- rejected. She wanted to know why because she really wanted to work at this particular store. It was a cool a store called she called the store does feel wall her seconds home. Then she said, this does not sound right to me so she went to some Muslim activist in Oklahoma and they put her in touch eventually with the EEOC which is what led to this case. It cannot during one of the trials that the district manager Pat Lisette, someone can come in and paint themselves rain and say they're doing it for religious reasons. Obviously, the idea that the headscarf was being worn for religious reasons was something on Amber Convery and Fitch's mind. It was in effect what came out was that the assistant manager who interviewed her some Jews wearing the Hijab for religious reasons except it never especially came out to what the crux of the issue before the Supreme Court is, Maureen is whether the employee should have to say, I am not wearing this for a fashion reason, this is a religious thing that I am wearing or weather, because the obviousness of it or whatever, the employer has to say, wait a minute, we have a looks policy and this is what the looks policy says. Is this going to be a problem? One of the interesting things Maureen in California and many other states you cannot ask a prospective applicant about their religion during the hiring process. The employer fails in this case and 21 that they are between a rock and a hard place, what are we supposed to do? Samantha did not get the job. She sued that is the basis of the lawsuit it has gone to the courts.the US Supreme Court. Let's go back, does California handle employer discrimination differently than other states? They do in this respect. It was the law that are talked about a couple of years ago. In January 2013, a law went into effect saying that employers cannot discriminate based on religious grooming or dress which includes head covering and this is explicitly part of California law. Interesting one of the things that an employer cannot do under California law is taken up with the employee as an accommodation somewhere where the public will not see them which is what a lot of employers might be tempted to do. It was say that is fine but we're going to put you in the back, answering phones or what have you. That is not an acceptable accommodation. Under California law and frankly under federal law as all the employer has certain obligations where they are confronted with this. In recent years have religious discrimination cases gone up or people who have filed saying they think they have been discriminated against because of their religion? What is fastenings actually have pretty EEOC actually released earlier this month the statistics for fiscal year 2014 and it showed that all forms of discrimination have dropped, the filings but that was because of the government shutdown. The bottom line is that in recent years the amount of religious discrimination cases which are still relatively small percentage of discrimination filings has actually doubled and as you might imagine it is particularly true in religious distribution cases that are filed by Muslims. There was a pivotal event that happened in 2001 that triggered all of this and that of course was 9/11 also be started having those kinds of claims. There's one argument being made by the retail store here Abercrombie that sparked a lot of discussion during arguments yesterday at the Supreme Court. One of the arguments is that since not all Muslim women wear headscarves how were they to know this woman was wearing one for religious reasons? If you could give some of the highlights of what those arguments yesterday. Is actually very interesting because what justice Alito said at one point as he said I'm going to say something that sounds a bit like a joke and he talks about what a basic and comes in in a turban and a nun walks in with a habit you to some as a fashion statement? At some point with the justices suggested is low, the way you avoid these problems as you do not have to engage in stereotyping all you have to do is lay out the basics of a look policy and ask if it is a problem with it is having a beard or what have you. Justice Ginsburg during her argument made the point by saying how is this applicant supposed to know that it is an issue if she sentimental Thursday policy that may clash with it. Those were some of the interesting things. Interesting thing about the oral argument is the justices seem inclined to rule with the EEOC. There's only one justice who is particularly vocal on the side of Scripps one and that was justice Alito who was sympathetic to their plight. Justice clauses of the burden of disclosure should be on the applicant right? That is exactly right. If the employer cannot itself initiate this kind of discussion that are really something that the employee ought to bring up because that is the only way that the employer will be able to be made aware of it at least according to him because the employer cannot really initiate the discussion. Once the employee does say this is for religious regions reasons the obligation to obligate if it doesn't constitute an undue hardship on the business is triggered. The question is who gets the ball rolling? That is where Justice Khalil was concerned. Justice -- urged employees to have awkward conversations instead of making assumptions that might lead to a violation of the discrimination laws right? Make that is exactly right. Was very interesting justice [ Indiscernible ], teachers big issue recognizes these are awkward companies is that ultimately result from the opinion that results from this fascinating case. Is an awkward conversation that for the purposes of accommodating religious attire needs to be had at least according to what appears to be a majority of the soup bream court justices. What kinds of rights and as a business have to set policies for appearance and the general look of their employees? That is a great question Maureen in the fact is businesses have broad latitude really a great deal of discretion to set mutual grooming standards, gender specific grooming standards to the extent it does not conflict with an applicant or gender identity but broad rights to set neutral grooming standards, those are perfectly okay. Here is the problem. It does neutral grooming standards run headlong into a relist to shut religious accommodation or conceivably a disability, the employer must yield unless it can show under the law that there's some sort of an undue hardship. That is a slippery concept because it is not clear whether that means more than minimal cost or whether it mean something more due to undo hardship in the disability law which means this is going to be really expensive for you to accommodate but in the case of Abercrombie & Fitch getting back to the point made earlier, is it enough that it would conflict the companies brand identity at least the justices seem to think that is not enough. One of the mysteries about this case Dan is that while it was being pursued up to the Supreme Court Abercrombie already changed its policy to accept headscarves.; Did they change the policy was actually settled a couple of the cases that are not unlike this brick it is not uncommon for employers who are hit with judgments to change their policies. That doesn't mean however that the employer is admitting that they did anything wrong. What Abercrombie said is on a case-by-case basis they are going to make these exceptions if it is necessary for religious accommodation but the fact that they change the policy does not mean that they did not think they did anything wrong and they don't believe that they should have to pay the $20,000 that was awarded to the EEOC when this case was tried. If a business were to set requirements for their employees to be a certain height or a certain weight or a certain -- or dress a certain way when they go into work that is all okay? I'm sorry we start getting to height in what we start raising issues that are a bit different because obviously if you set a high standard of 6' 4" you are excluding as a matter of impact, or differential impact women who are in average or significantly shorter than that I would be fine with that I am 6' 6". You have to be careful when you talk about to wait there was just a fascinating story in Wharton business school newsletter that I get about the awful discrimination against people that are overweight if it is connected to a disability, that becomes a problem to that must be accommodated. You can set categorical rules about this because it really is a case by case basis that an employer has to navigate and these are very treacherous, these are very treacherous waters because it requires the employer in a variety of context to have very awkward conversations with applicants. If indeed the justices do decide either way for or against, how could this decision affect the job interview process? What would happen and the justices were very clear in offering guidance for the ways to avoid this is to say, employers, if you have policies that you think might clash with a particular item or element of the person who is before you, you need to brace it and asking a very unthreatening way, is this going to be a problem for you? For example some be present with a beard, there are some religions as pointed out in two oral argument that requirement to wear a beard. We have a no facial hair policies are going to be a problem with you? Recognize you are sidestepping the issue of is this going to be a religious problem which you can not to. The idea is to make sure at least that you raise potential policies that could conflict with what appear to be religious -- of the person before you but that does require is the general -- Abercrombie & Fitch one lawyer site for you to engage in a bit of an assumption that another context would be viewed as stereotyping. Is there any chance that the EEOC because I don't their guidelines are directing this kind of thing could be changed in some way to make this whole process a bit more streamlined for everybody involved? I think your point is exactly well taken. I think the EEOC has to issue some guidance as to what an employer is to do because really, the potentially what you have is as was said yesterday in the oral argument, the employer is between a rock and a hard place. On the one hand you certainly do not want to discriminate, on the other hand you have an interest in a brand identity or what you're doing with your business and then on the third hand if you will, you want to make sure that you don't unlawfully engage in, you don't overcompensate by allowing someone, some sort of an accommodation that is not religiously compelled. You have all of these things in this -- that employers have to navigate. Interesting thing is -- setting is today's argument this case is unique because an applicant didn't find out come the applicant found out why she wasn't hired. That is not going to be the case in the vast majority of these cases. Written up and speak with San Diego attorney Dan Eaton who practices employment law at Selzer Lithic man and take care of yourself a damn. I will think you so much Maureen.

Have you heard the one about the Sikh, the Hasidic Jew, the Muslim and the nun who walked into a job interview?

Supreme Court Justice Samuel Alito channeled his inner stand-up comic Wednesday in indicating that he and most of the court would side with a Muslim woman who showed up for a job interview with Abercrombie & Fitch wearing a black headscarf. She didn't get hired.

Samantha Elauf, the woman at the center of the case about religious discrimination in hiring, was in the courtroom Wednesday. The case turns on how an employer is supposed to know that a worker or applicant has religious beliefs that need to be accommodated.

The clothing retailer said Elauf can't claim discrimination because she didn't say anything about religion during her interview.

Alito acknowledged that it sounded like he was making a joke in describing interviews with "a Sikh man wearing a turban," "a Hasidic man wearing a hat," ''a Muslim woman wearing a hijab" and "a Catholic nun in a habit." But his point was that employers can't feign ignorance when people appear before them in religious clothing.

"Now, do you think ... that those people have to say, we just want to tell you, we're dressed this way for a religious reason. We're not just trying to make a fashion statement," Alito said.

Pressed by both conservative and liberal justices, Abercrombie lawyer Shay Dvoretzky said employers would get into trouble if they started making assumptions about people. "What we want to avoid is a rule that leads employers, in order to avoid liability, to start stereotyping about whether they think, guess or suspect that somebody is doing something for religious reasons," Dvoretzky said.

Only Justice Antonin Scalia seemed open to the company's argument.

Several of Scalia's colleagues said there's an easy way to avoid stereotyping. Tell job applicants what the rules are and ask them, as Justice Sonia Sotomayor said, "You have a problem with that?"

Those conversations sometimes might be awkward, Justice Elena Kagan said. But far better the awkward moments than a situation that leads to stereotyping anyway, Kagan said.

Indeed, Alito made the point that despite Elauf's silence, the company assumed she would wear a headscarf to work because of her religion.

"You assumed she was going to do this every day. And the only reason she would do it every day was because she had a religious reason," he said.

The federal civil rights law known as title VII requires employers to make accommodations for employees' religious beliefs in most instances. Dvoretzky said the Equal Employment Opportunity Commission, representing Elauf, wants employers to treat people differently based on religion, "which is precisely the opposite of what Title VII wants."

That provoked a sharp reply from Justice Ruth Bader Ginsburg. "Title VII requires them to treat people who have religious practice differently. They don't have to accommodate a baseball cap. They do have to accommodate a yarmulke," Ginsburg said, referring to a Jewish skullcap.

Abercrombie has continued to fight Elauf's lawsuit, filed on her behalf by the EEOC, even though it since has settled similar claims and changed its headscarf policy. The ban on black clothing remains part of its Look Policy for employees.

Elauf was 17 when she interviewed for a "model" position, as the company calls its sales staff, at an Abercrombie Kids store in a shopping mall in Tulsa, Oklahoma, in 2008. She impressed the assistant store manager. But her application faltered over her headscarf, or hijab, because it conflicted with the company's Look Policy, a code derived from Abercrombie's focus on what it calls East Coast collegiate or preppy style.

At the time of the interview, the policy required employees to dress in a way consistent with the clothing Abercrombie sells, and it prohibited wearing headscarves or anything in black.

The woman who conducted the interview consulted with a more senior supervisor and then decided not to hire Elauf because of the headscarf, according to testimony in the case. "The only reason there was a suit here was because she was honest," Sotomayor said, calling the interviewer's candid comment rare in employment discrimination cases.

After Elauf complained, a jury eventually awarded her $20,000. But the federal appeals court in Denver threw out the award and concluded that Abercrombie & Fitch could not be held liable because Elauf never asked the company to relax its policy against headscarves.

Organizations of state and local governments are supporting the company out of concerns that, if the EEOC prevails, they would be subject to more discrimination claims as large employers.

Muslim, Christian and Jewish advocacy organizations have weighed in on Elauf's side, as have gay-rights groups.

A legal brief on behalf of Orthodox Jews argues that requiring job applicants to voice the need for religion-related special treatment makes them less likely to be hired, with no reason given for the decision. Orthodox Jews who wear a skullcap, or who may not work on Saturdays, are routinely advised to withhold that information until after they are hired, lawyer Nathan Lewin said in his Supreme Court filing.

A decision in EEOC v. Abercrombie & Fitch, 14-86, is expected by late June.

Justices Appear To Favor Muslim Denied Job Over Headscarf

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