This may change. Last week, the Supreme Court heard oral arguments in a case seemingly taken right out of the What Would You Do scenario. The Justices’ real-life version features Samantha Elauf, who applied for a “model,” or floor, position with Abercrombie Kids. Elauf, a Muslim, wears a headscarf for religious reasons. But Abercrombie’s dress code emphasizes a “preppy,” “classic East Coast collegiate style of clothing,” that does not permit any headgear, including headscarves.
In the event of such a conflict, Title VII requires employers to “reasonably accommodate” an applicant’s religious practice, unless the employer can prove that such accommodation would present an “undue hardship.” The specific question before the Justices is whether Abercrombie had the duty to accommodate Elauf when it assumed—but wasn’t told by Elauf—that her headscarf was religious in nature.
Based on the oral argument, the Justices seem poised to say yes. This would be the right result: Abercrombie perceived Elauf’s headscarf to have religious significance and then acted on this perception by downgrading—on the basis of the headscarf alone—Elauf’s interview score such that she would not be recommended for a position.
Make no mistake: This case is not only about discrimination, but also about employers’ attempts to use dress codes as a mechanism to regulate, and minimize, the presence of the visibly religious in our public spaces. The Justices should not miss the opportunity to reject such appearance-based social engineering. Here are four things they could say about dress codes and the outwardly religious.
First, the Court should repudiate Abercrombie’s claim that it did not discriminate because Elauf was subject to a “neutral” dress code that applies to all applicants who would be in public view. Abercrombie’s counsel said the company would have refused to hire any applicant who did not comply with the dress code, whether they had on a “headscarf,” “baseball cap,” “helmet,” or any other headgear.
But Title VII specifically requires employers to accommodate an individual who cannot, for a religious reason, comply with a generally applicable policy, unless doing so would present an undue hardship. Accordingly, as Chief Justice John G. Roberts said, the question under Title VII is not whether are you “treating everybody the same,” because Title VII imposes on employers “an obligation to accommodate people with particular religious practice or beliefs.”
Similarly, Justice Ruth Bader Ginsburg noted pointedly that Title VII requires employers to “treat people who have religious practice[s] differently.” Employers would have to accommodate a yarmulke, but not a baseball cap, she added. Thus, Abercrombie cannot avoid the charge of employment discrimination by saying it applies its dress code to everyone.