When she was 17, Samantha Elauf applied to work at an Abercrombie Kids store in Tulsa. She wore a headscarf to the job interview, which she did every day in accordance with her Muslim faith. Before she went to the interview, she asked a friend who worked at the store what she should wear and whether her headscarf would be a problem, but the friend said she would be fine—as long as the scarf wasn't black, because black clothes weren't part of Abercrombie's "look."
She didn't get the job. When the hiring manager saw Elauf's headscarf, she realized that it violated Abercrombie's official Look policy, so she had to ask the district manager whether they could make an exception. The hiring manager thought the headscarf was probably religious garb, but she wasn't sure, she said.
The district manager said they couldn't make an exception. His reasoning, as an attorney recently paraphrased it, was "if we allow this then someone will paint themselves green and call it a religion."
That was seven years ago. On Wednesday, the Supreme Court heard oral arguments in a discrimination case against Abercrombie & Fitch, brought by the Equal Employment Opportunity Commission on behalf of Elauf. The legal question at the center of the case is this: If a job applicant would need some sort of exception to be made to a company policy because of her religion, is it her obligation to mention that in her interview, even if she doesn't know about the company policy?
If it sounds simple, it's not. At various points during oral arguments, Justices Kennedy, Scalia, and Sotomayor all said they were "enormously," "very," or "so totally" confused. The attorneys and the justices exchanged long back-and-forths over the difference between the words "understands, knows, believes, [and] suspects." At one point, Scalia point-blank asked one of the attorneys, "Would you tell me what it is you want?"
According to Title VII of the Civil Rights Act of 1964, employers are not allowed to discriminate against potential hires based on their religious belief or practice. It's entirely legal to have a company policy against head coverings, but if an employee needs to wear one for religious reasons, employers are required to make an accommodation, unless they can prove that it will create an "undue hardship" on their business.
In practice, this can be complicated. In this case, for example, the question is whether the hiring managers at Abercrombie really knew that Elauf's head covering was religious, or whether they were just guessing that it was. This distinction matters; in 2013, the Tenth Circuit Court of Appeals ruled that correctly assuming that Elauf's headscarf was religious is not the same as actually knowing her headscarf was religious.
Whatever the Supreme Court decides, there will be consequences for people looking for jobs—and for people making hiring decisions. On the one hand, the Equal Opportunity Employment Commission argues that it's unfair to expect a job applicant to ask for an exception to a policy she doesn't know about. On the other hand, Abercrombie argues that employers can't be expected to "start a dialogue" with an applicant if they suspect the applicant's religious practice will violate a company policy, because that would encourage stereotyping and could potentially expose employers to lawsuits.
That's what makes this case so legally serious. But it's serious in another way, too: It's a concrete example of how standards of "attractiveness" and "cool" can be built on inadvertent discrimination. According to court documents, Abercrombie described its brand as "a classic East Coast collegiate style of clothing." When Elauf applied for a job in 2008, the Look policy included prohibitions on black clothing and "caps"; these and other rules were designed to protect "the health and vitality of its 'preppy' and 'casual' brand." As Justice Alito put it during oral arguments, Abercrombie wants job candidates "who [look] just like this mythical preppy or ... somebody who came off the beach in California."
"East Coast" and "preppy" don't necessarily mean "white," but that's what they imply. "Collegiate" doesn't necessarily mean "monied," but that's what it implies. It's not that Abercrombie isn't for black kids or Asian kids or Muslim kids—after all, Samantha Elauf wanted to work in an Abercrombie store. But wearing Abercrombie means styling oneself as a "classic" American—a label traditionally claimed by people who are white and have enough money to care about starched collars. Not coincidentally, "classic" Americans probably dress like Protestants—which is to say, they don't dress in much religious garb at all. Abercrombie's business depends on the aspiration to look like a very specific kind of American; for kids who don't look like that, being able to pull on a faded t-shirt and seem a little bit less like an outsider may be Abercrombie's exact appeal.
But those who aren't Abercrombie cool can take heart: Last year, the company's profits dropped by 77 percent, and the CEO responsible for the store's Look policy, Mike Jeffries, resigned. The company's decline is partly due to nationwide sales losses at shopping malls, where Abercrombie & Fitch and its cousin, Hollister, are fixtures. But there's a more amorphous reason, too: For some reason, teens just aren't buying as much Abercrombie as they did in the 90s and 2000s. It could be that the Abercrombie Look has fallen out of fashion, its "distressed" and inexplicably pre-ripped jeans now forgotten in the back of many a Millennial closet. But it could also be that the American Look is changing: As more and more kids look like Samantha Elauf, maybe there won't have to be exceptions made for headscarves. Maybe they'll simply be cool.
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