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
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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
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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
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