When an employer’s hiring standards conflict with a prospective employee’s religious practice, when would the employer be guilty of discrimination for not hiring? That is the question currently before the Supreme Court, which held oral arguments yesterday in EEOC v. Abercrombie & Fitch Stores. Abercrombie chose not to hire Samantha Elauf, a Muslim teenager who applied for a retail job with the chain retailer, claiming that her use of a headscarf violated the company’s policy of no headdress for employees. “I learned that I was not hired by Abercrombie because I wear a headscarf, which is a symbol of modesty in my Muslim faith. This was shocking to me,” Elauf stated after the hearings. “I am not only standing up for myself, but for all people who wish to adhere to their faith while at work. Observance of my faith should not prevent me from getting a job.” The Equal Employment Opportunity Commission took up Elauf’s case under Title VII of the Civil Rights Act, which states that it is unlawful for an employer to refuse to hire someone based on their religion, along with other qualifications including race and sex. Elauf wore the headscarf for religious reasons and says Abercrombie knew this when they refused to hire her. Abercrombie’s lawyer noted that companies can run into legal problems if they directly inquire about an applicant’s religious belief, and said the firm wanted to avoid stereotyping individuals based on appearance and guessing whether their actions are being done for religious reasons. The Court peppered both sides with questions, focusing particularly on a company’s responsibility to make its standards clear to a job applicant without making an illegal inquiry into an applicant’s religious belief. Justice Samuel Alito posed a compromise of sorts when he asked if a company could explain its hiring standards to an applicant and then ask, “Do you have any problem with that?” “I think the point is [for the employer] to initiate the dialogue,” answered Ian Gershengorn of the Department of Justice, arguing on Elauf’s behalf. “I think had that happened here, then — then we would be talking about a different point in the process about whether there was a reasonable accommodation that could be done and whether it could be done without undue hardship.” The Becket Fund for Religious Liberty filed an amicus brief on Elauf’s behalf. Senior counsel Eric Baxter told CNA that the case is important in safeguarding the religious freedom of job applicants. “A lot of job applicants don’t know going into a job what kind of work requirements there might be,” he said, giving the example of a requirement that employees work Saturdays. “It’s important for the Court to hold employers responsible,” he said, stating that if employers know someone has a religious requirement, they should clarify whether the person can fulfill the job.” Rev. Robert Shenck of Faith and Action in the Nation’s Capital also defended Elauf’s religious freedom in the case. “There is no Constitutional right to fashion preferences. There is a Constitutional right to religious practice,” he stated after the hearing. “There is a higher level of scrutiny for that right than for someone’s fashion preference.” A decision in the case is expected from the Supreme Court this summer.
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