The Law and Culture of the Abercrombie Case

IMG_8833

Earlier this month, the Supreme Court continued its recent string of decisions in favor of religious believers when it backed Muslim teenager Samantha Elauf in her employment-discrimination lawsuit against clothing giant Abercrombie & Fitch. In EEOC v. Abercrombie & Fitch Stores, Ms. Elauf claimed the company illegally refused to hire her as a sales clerk in its Tulsa Abercrombie Kids store because her religious headscarf would have violated its dress code. The Court’s reversal of summary judgment for Abercrombie may have been a “really easy” decision under the text of Title VII, as Justice Scalia proclaimed in announcing the 8-1 ruling. But it is a pretty big deal for minority faiths and the culture of religious freedom generally.

Given the controversy over Abercrombie’s so-called “Look Policy” in recent years—on body-image and other grounds—it is perhaps unsurprising the policy wound up at the Supreme Court. What is notable, however, is the Court’s near-unanimous ruling that Abercrombie could be held liable for religious discrimination under the policy even though its rule against employee headwear was religiously neutral and Ms. Elauf never asked for a religious exception (her interviewer just saw the headscarf and assumed she was Muslim). The Court held that Ms. Elauf need only show Abercrombie was “motivat[ed]” by a desire to avoid religious accommodation—which Title VII likely would have required the company to provide were she hired. In short, “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The employment-law bar is naturally aflutter, providing guidance to employers and employees on their respective responsibilities and options for religious accommodation in light of Abercrombie. Indeed, the fact that employers could now face religious-discrimination liability even where applicants or employees never requested accommodation is likely a game-changer in the way many employers engage and manage an increasingly diverse workforce. We have already seen developments to that end in some of the employment cases we are handling in our clinic. But the Supreme Court’s ruling should also be understood as something more significant than a mere change in workplace do’s and don’ts, and in two respects.

First, the Court’s overwhelming support of broad accommodation for the dress practices of a religious minority affirms the abiding, yet vulnerable, principle that civil-rights protections against religious discrimination extend to people of all faiths and might therefore require corresponding adjustments to otherwise-neutral policies—even, and perhaps especially, for those of religions that might face animosity or misunderstanding in certain sectors of society. This marks the second time this term the Court has ruled in favor of accommodating a Muslim litigant; the other was Holt v. Hobbs, where the Court unanimously endorsed a prison inmate’s right to wear a beard for religious reasons. In an increasingly diverse society that is all-too-often afflicted by hostility, or at least insensitivity, to Muslims, Sikhs, and other minority faiths, the Court’s reminder on universal accommodation is vital.

Second, the Supreme Court’s insistence that religious-dress practices deserve anticipatory protection honors the longstanding yet similarly besieged understanding that religious liberty includes both belief and action; or, as Madison put it, the “manner of discharging” one’s faith. While some countries are moving to a view of religion as something confined to a house of worship, the Court’s ruling underscores it also includes manifestations in one’s broader life—hence Title VII’s “favored treatment” of religion, as the majority stressed. There are, of course, limits. And the Court remains deeply divided over where the line should be drawn in certain hot-button areas. But Abercrombie reminds us that many of these cases are decided by unanimous or near-unanimous majorities. In an era of frequent partisan and ideological division, that breadth of support for religious freedom is heartening.

At bottom, Abercrombie alerts the contemporary world to Title VII’s half-century commitment to a diverse and dynamic understanding of religion in the workplace. And it appears a blessing of particular importance to those of minority faiths, like Ms. Elauf and the clients we serve in clinic, but also for anyone else interested in the exercise of religion in a pluralistic society.


 

Jim Sonne joined the law school in 2012 to found its Religious Liberty Clinic, the only full-time program in the country where students learn the practice and profession of law through faculty-supervised litigation in that field.