Supreme Court: Job Applicants Don’t Have To Explain That Their Garb Is Religious

(Molly)

“Abercrombie & Fitch” and “modest dress” are usually not concepts that go together. Even at the children’s store. (Molly)

Back in February, the Supreme Court heard arguments in the case of a 17-year-old who applied to work for the children’s clothing store under the Abercrombie & Fitch brand. She was apparently beautiful enough to work there, but always wore a black scarf on her head. Did she wear it for religious reasons, which would mean that it couldn’t be a factor in hiring decisions? She didn’t say, so Abercrombie didn’t hire her. That case eventually reached the U.S. Supreme Court, which issued an opinion today.

Which accessories and pieces of clothing that might violate a company’s dress or grooming code are universally understood to be religious symbols? Some visual cues, like pieces of jewelry, headscarves, beards, wigs, or pieces of clothing, can be personal fashion choices or worn for sincere religious reasons. This decision doesn’t put the burden on employees to explain that a given piece of clothing or accessory has a religious origin, but employers are guilty of discrimination if they make a decision not to hire someone based on a practice that might be worn due to the applicant’s sincere religious belief.

“To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need,” the Court explained in its decision. A woman wearing a hijab-style headscarf to a job interview shouldn’t be a factor in the decision whether to hire her or not. Management can’t be sure whether she will wear it to work, and choosing not to hire her based on that assumption is discrimination.

In the Abercrombie case, while making the decision whether or not to hire Ms. Elauf, managers at Abercrombie & Fitch discussed her appearance and whether the black scarf she wore was for religious reasons. The manager who interviewed her believed that it as, but they couldn’t be sure. This Supreme Court decision dictates that employers should err on the side of hiring someone without interrogating them about their religious preferences, and sort out accommodating religious practices later.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ABERCROMBIE & FITCH STORES, INC. [U.S. Supreme Court]