cover story Who Gets to Work at Abercrombie? The Supreme Court is set to decide whether Abercrombie & Fitch discriminated against a job applicant because of her Muslim veil By patricia smith analyze the article print the article Samantha Elauf, 24, in front of the U.S. Supreme Court in February 8 Upfront The Abercrombie look: Shoppers outside a New York store opposite page: Chip Somodevilla/Getty Images; this page: MARK LENNIHAN/AP Images A bercrombie & Fitch doesn’t just sell clothes. It sells an image of a beautiful allAmerican life. For years, the good-looking, shirtless young men who stood at the stores’ entrances invited shoppers to be part of the fantasy experience. Loud music played in the dimly lit stores. The stores were pumped full of perfume. The company still refers to its sales staff as “models” and “living advertisements.” And they’re meant to look the part of the image they’re selling: young, beautiful, and clean-cut. The company’s “look policy” calls for a “classic East Coast collegiate style.” It spells out what sales staff can wear. No hats, no black clothing, no facial hair. Women’s hair should be long. Nail polish is discouraged. So what happens when a teenager who doesn’t fit that mold walks into a store and asks to work there? Samantha Elauf was 17 when she applied for a job at an Abercrombie Kids store in her hometown of Tulsa, Oklahoma. Elauf, the religious beliefs of their employees? an observant Muslim, showed up for an “The balancing act is between the interview wearing a T-shirt and jeans applicant who’s saying her religious and a black head scarf. rights were infringed Employers must She didn’t get the job. and the employer Abercrombie & Fitch make a ‘reasonable who has a right to says the head scarf, accommodation’ hire who they want,” known as a hijab, to an employee’s says Barbara McGraw. clashed with its dress She’s a law and ethreligious beliefs. ics professor at Saint code. But in a case now before the Supreme Court, Elauf claims Mary’s College of California. the company discriminated against her The First Amendment to the because of her religion. Constitution protects the right of all “I was a teenager who loved fash- Americans to freely practice their reliion,” says Elauf, now 24. “No one had gion. The Civil Rights Act of 1964 proever told me that I could not wear a hibits religious discrimination in hiring head scarf and sell clothing.” by public and private companies and by federal, state, and local governments. (It Freedom of Religion also prohibits racial and gender discrimiThe case, E.E.O.C. v. Abercrombie & nation.) Under Title VII of the Civil Rights Fitch Stores, asks the Court to weigh in Act, employers must make a “reasonable on an important question involving the accommodation” to an employee’s relireligious freedoms guaranteed by the gious beliefs unless that accommodation Constitution: How far should private puts an “undue burden” on the employer. companies have to go to accommodate Abercrombie says it “has a longstanding commitment to diversity.” It Watch a video about covering the Supreme Court says it has “granted numerous religious m ay 1 1 , 2 0 1 5 9 Not a ‘Fashion Statement’ The Supreme Court heard oral arguments in February. Shay Dvoretzky, a lawyer for Abercrombie, repeated the argument that the company has made all along. He said Elauf never told her interviewer she wore the head scarf for religious reasons. That means Abercrombie couldn’t have discriminated against her. Requiring the company itself to raise the religion issue during the interview, Dvoretzky told the justices, would be “asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice.” But the justices seemed skeptical. Before posing a hypothetical question, Justice 10 Keep it on: School dress codes can’t prevent you from wearing religious attire like crosses, yarmulkes, and turbans. Samuel A. Alito warned that “this is going to sound like a joke.” He then asked about four job applicants: a Sikh man wearing a turban, a Hasidic Jewish man wearing a hat, a Muslim woman wearing a hijab, and a Catholic nun wearing a habit. “Do you think that those people have to say, ‘We just want to tell you, we’re dressed this way for a religious reason? We’re not just trying to make a fashion statement,’ “ Alito asked. Despite the First Amendment’s protection of religious freedom, the courts have long grappled with the issue of U p f r o n t • u p f r o n t m a g a z i n e . c o m religious attire. They’ve struggled with what the right balance is in accommodating it. For example, courts have ruled that public school dress codes can’t prevent students from wearing religious items. These include crosses, yarmulkes, head scarves, and turbans. And earlier this year, the Supreme Court ruled in a case about religious exemptions, Holt v. Hobbs. The Court said an Arkansas prison must allow a Muslim prisoner to grow a short beard. This was to accommodate his religious beliefs, even though facial hair violates prison policy. But at the same time, some restrictions on religious attire have been upheld. In 1986, the Supreme Court ruled in Goldman v. Weinberger that a Jewish Air Force officer didn’t have a right to wear a yarmulke when in uniform. The Court said that members of the military don’t have the same right to religious expression as ordinary citizens.* And in 2003, a Florida judge ruled that the state could require a Muslim woman to remove her niqab for her driver’s license photo. A niqab is a veil that covers both the hair and face. In the Abercrombie case, Christian, Jewish, Sikh, and Muslim groups have all filed briefs in support of Elauf. If the Court rules for her, it could have broad consequences for Muslims in the American workplace. Of the 3,800 religious discrimination complaints filed with the E.E.O.C. in 2012, more than 20 percent were from Muslims. Muslims make up less than 1 percent of the U.S. population. Whatever the justices decide, Abercrombie already seems to be making changes. It recently adjusted its “look policy” to allow head scarves for religious reasons. It’s also phasing out the shirtless men at its store entrances. And it’s toning down the perfume and loud music. “If they’re smart and they understand the power of social media and consumer awareness, they’ll be learning from this,” says Americus Reed, a marketing professor at the Wharton School of Business in Philadelphia. “And that will probably update their approach.” • With reporting by Adam Liptak of The Times. *After this ruling, Congress passed a law allowing members of the military to wear religious apparel while in uniform. page 10: Getty Images/iStockPhoto.com (Cross); Shutterstock (Yarmulke); JACQUES BRINON/AP Images (Turban). page 11: Texas Department of Motor Vehicles/ AP Images (License Plate); Peter Dazeley/Getty Images (Cake); Roger L. Wollenberg/Pool/Corbis (Supreme Court) accommodations when requested, including hijabs.” But it’s not the first time the company has faced accusations of discrimination. In 2004, it paid $40 million to settle a lawsuit brought by black and Hispanic groups. They had claimed qualified minority job applicants were wrongfully turned down. In 2009, British authorities found that the company had wrongfully dismissed a young employee. She had refused to be banished to the stockroom because of her prosthetic arm. And in 2013, a federal judge in California ruled that Abercrombie discriminated against a 19-year-old Muslim working at Hollister. She had refused to take off her hijab to conform to the dress code. (Hollister is owned by Abercrombie & Fitch.) After Elauf didn’t get the job at Abercrombie Kids in 2008, she filed a complaint with the Equal Employment Opportunity Commission (E.E.O.C.). That’s the federal agency that enforces the laws that prohibit workplace discrimination. The E.E.O.C. sued Abercrombie on her behalf. A jury sided with Elauf. It found that the company did discriminate against her as a Muslim. It awarded her $20,000 in damages. But the U.S. Court of Appeals overturned the verdict. And the E.E.O.C. appealed the case to the Supreme Court. Supreme Decisions A look at some other key rulings to come B y the time its current term ends in June, the Supreme Court is expected to have issued about 75 rulings. That represents just a sliver of the 10,000 cases that were submitted to the justices for their consideration. Many of the Court’s decisions are very technical and get little attention from the media, but a few of the cases yet to be decided are highly anticipated. In fact, the justices often rule on their most important cases just before adjourning for the summer. One of those cases this year includes a challenge to Obamacare that could threaten the viability of the healthcare reform law, which President Obama considers among his biggest accomplishments. Here’s a look at two other key cases that will soon be decided. The Confederate Flag Same-Sex Marriage an Texas refuse to allow specialty license plates featuring the Confederate flag? That’s the question before the Court in Walker v. Sons of Nine states offer license plates Confederate Veterans. with the Confederate flag. Specialty plates showing support for sports teams, fraternities, and groups like the Boy Scouts are common across the nation. And nine states in the South offer a license plate for the Sons of Confederate Veterans that depicts a Confederate flag. Supporters view the flag as honoring Southern heritage. But Texas refused to allow a plate with the Confederate flag, which many people associate with slavery and discrimination. The Sons of Confederate Veterans says the state is denying its First Amendment right to free speech. The American Civil Liberties Union has filed a brief in support of the Sons of Confederate Veterans, saying that the state can’t censor a group’s message just because some find it offensive. year ago, same-sex marriage was legal in 17 of the 50 states. Now, it’s legal in 36 states and in the District of Columbia, and more than 70 percent of Americans live in states where gay couples can marry. But 13 states still have laws defining marriage as being only between a man and a woman, effectively banning same-sex marriage.* Now the Supreme Court is set to weigh in, and its ruling could settle once and for all whether gay marriage is a constitutionally protected right that all 50 states must allow. The Court is considering a pair of cases— Obergefell v. Hodges and Tanco v. Haslam—that challenge state laws banning same-sex marriage. The plaintiffs, who live in states where same-sex marriage is banned, argue that they have a right to marry like opposite-sex couples, and that the bans harm them and their children. C Sonia Sotomayor Clarence Thomas Stephen G. Breyer Antonin Scalia A *In Alabama, the status of same-sex marriage is disputed because of conflicting court rulings. Samuel A. Alito Jr. Chief Justice John G. Roberts Elena Kagan Anthony M. Kennedy Ruth Bader Ginsburg m ay 1 1 , 2 0 1 5 11
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