Justice Samuel Alito—traditionally a strong ally of religious interests—appeared skeptical of Abercrombie's defense Wednesday, suggesting that the company's view of the law would open the door to significant discrimination.
When Samantha Elauf applied for a job at Abercrombie Kids, at age 17, she knew there were at least some restrictions on employees' looks: She asked a friend whether her headscarf, which she wore as an observant Muslim, would be a problem. The friend said it would probably be OK, as long as it wasn't black. Abercrombie employees aren't allowed to wear black.
Elauf wore a headscarf to her job interview. The manager who interviewed Elauf wanted to hire her, but wasn't sure about the headscarf. So she consulted a more senior manager, who told her it would violate the look policy's ban on hats, and not to hire Elauf.
The EEOC sued Abercrombie, alleging that it discriminated against Elauf by refusing to hire her because of her headscarf.
Shay Dvoretzky, the lawyer representing Abercrombie, told the court that because Elauf did not specifically tell the company she would need a religious accommodation, the company didn't really know that the garment was religious. It was simply enforcing its look policy, which forbids all headwear.
But Alito and the court's liberal members were skeptical of that argument. Job applicants don't have to comply with the look policy during their interviews, Alito noted, so the fact that Elauf wore a headscarf to her interview probably wasn't the issue.
"The reason she was rejected was because you assumed she was going to do this every day, and the only reason she'd do it every day" would be for religious purposes, Alito said.
He also questioned Dvoretzky about a hypothetical employee—someone with a perfectly Abercrombie look, a "mythical preppy," who showed up to a job interview wearing black: Would Abercrombie refuse to hire that applicant because the look policy prohibits black, or would it let her know about the policy and see if she's OK not wearing black?
The implication in Alito's questioning, echoed by the liberal justices, was that Abercrombie correctly assumed the scarf was a religious symbol, and was therefore making its hiring decision based on her religion.
It can be pretty easy to determine someone's religion, the liberal justices argued. If companies can't be held liable for discrimination unless a job applicant explicitly mentions their religion, they said, discrimination could become easier. Justice Elena Kagan asked Dvoretzky about an anti-Semitic employer who refuses to hire an applicant named "Noah Goldberg."
"That has got to be against the law, right?" she asked.
Dvoretzky, though, said it's actually the EEOC's approach that would open the door to discrimination. If employers can be punished for not hiring candidates like Elauf, he argued, they'll have a natural incentive to start asking about candidates' religion in job interviews—which the EEOC also frowns upon.
"I think that may promote stereotyping "¦ your solution causes more problems," Roberts told Ian Gershengorn, the EEOC's attorney.