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.
