Court Sides With Abercrombie Job Applicant Over Head Scarf

WASHINGTON-The Supreme Court on Monday said a Muslim woman who applied to work at Abercrombie & Fitch Co. can raise discrimination claims without proving the company intentionally avoided hiring her because she wore a head scarf for religious reasons.

The decision heightened the duty employers have to accommodate workers' religious practices, ruling that federal law requires "favored treatment" of faith-based observances, not simply equal status with other activities.

Justice Antonin Scalia wrote the court's 8-1 opinion in the case. Justice Clarence Thomas dissented.

Samantha Elauf had complained to the Equal Employment Opportunity Commission after learning she was rejected for a sales job at an Abercrombie Kids store in Tulsa's Woodland Hills Mall because she wore a head scarf. The parent company Abercrombie & Fitch maintained that it rejected her not because she was Muslim—the subject of religion didn't arise during her interview—but because head scarves violated Abercrombie's dress code, which prohibited caps.

Federal civil rights law requires employers to "reasonably accommodate" workers' and applicants' religious practices, unless so doing would impose more than a minimal burden on the business. Similar rules apply to disabilities and pregnancy.

After informal talks between the commission and the company came to naught, the EEOC sued Abercrombie for religious discrimination. A federal-district court in Tulsa awarded Ms. Elauf $20,000 in compensation. The 10th U.S. Circuit Court of Appeals in Denver threw out the judgment because she hadn't explicitly asked the company to accommodate her religious practice.

The appeals court found it would be unfair to hold Abercrombie liable based on a manager's speculation—even though it was accurate—that Ms. Elauf wore the head scarf for religious reasons.

The Supreme Court reversed the appeals court holding.

Since the Elauf case, the EEOC has issued guidance to employers, advising that the duty to accommodate religious practices doesn't depend on an applicant or employee explicitly requesting it. If an employer is unsure, the commission advises them to seek more information. In other instances, it will be "obvious that the practice is religious and conflicts with a work policy," requiring accommodation.

Abercrombie, meanwhile, has changed its policy to allow head scarves.

Since being rejected by Abercrombie, Ms. Elauf has worked at Old Navy and Forever 21, and earlier this year was hired as merchandising manager when Urban Outfitters opened its first Oklahoma location in Tulsa's Brookside district.

Write to Jess Bravin at [e-mail]

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