SCOTUS hears arguments in workplace discrimination case

The U.S. Supreme Court appeared to be siding with the Equal Employment Opportunity Commission (EEOC) during the Wednesday’s oral arguments in a workplace discrimination case that could help define religious freedoms in the workplace.

The case, EEOC v. Abercrombie, centers on Samantha Elauf, a practicing Muslim who applied for a position as a model at the Abercrombie Kids store in Tulsa, Okla., in 2008. She was denied employment because she was wearing a black headscarf, known as hijab, which violates the company’s “look policy.”

EEOC argues that Abercrombie violated Title VII of the Civil Rights Act by failing to accommodate Elauf’s religious beliefs. Abercrombie claims Elauf never informed hiring managers of the conflict and that allowing her to wear a headscarf would have imposed an undue hardship on the Ohio-based company.


The company’s position was upheld by the 10th Circuit Court of Appeals after a federal district court sided with the EEOC.

The high court is now tasked with whether employers have to ask prospective workers if they need a religious accommodation, or if it is it up to the job seekers to make the need known.

Justice Ruth Bader Ginsburg said all an employer has to do is tell a perspective employee that the company has a look policy and ask during the interview if the worker has a problem with it.

“You don’t have to probe anything about religion,” she said.

“If it's going to be a requirement for the job, then doesn't the employer have an obligation to tell the employee what the job requirements are?” she later asked Abercrombie’s attorney Shay Dvoretzky.

Justice Sonia Sotomayer also questioned by an employer can’t tell an employee that there’s a look policy that doesn’t allow a headscarf.


However having employers engage in a religious conversation with a prospective employee, as the EEOC suggests Abercrombie should have done, Chief Justice John Roberts, said might promote stereotyping if the employer is not sure if a religious accommodation is needed.

“It seems like your solution causes more problems,” he said to EEOC’s Attorney Ian Gershengorn.

Dvoretzky argued that onus should be on the employee to notify the employer of religious-based dress.

To prove how unnecessary that could potentially be, Justice Samuel Alito gave a hypothetical that sounded like the start of a bad bar joke - four people show up for a job interview at Abercrombie.

“The first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab and the fourth is a Catholic nun in a habit,” he said.

“Now, do you think those people have to say, ‘We just want to tell you [prospective employer] that we're dressed this way for a religious reason. We're not just trying to make a fashion statement.’”