Veiled Women Need Not Apply

Noah Feldman analyzes a veiling case that has made it to the US Supreme Court:

The case, Equal Employment Opportunity Commission v. Abercrombie & Fitch, started in 2008 when 17-year-old Samantha Elauf applied for a job at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. At Abercrombie, salespeople are called “models,” and part of the job interview is scored on how you look. Once hired, the “models” must comply with an Abercrombie “look policy” that governs how they dress.

Elauf knew the score. Before the interview, she asked a friend who knew the store’s assistant manager whether she would be able to wear a hijab on the job. The manager told her friend that because he’d worked with someone who wore a yarmulke at Abercrombie, he expected the hijab would be fine.

But, as Feldman explains, it was not fine:

Elauf didn’t get the job — and the EEOC sued Abercrombie for religious discrimination. A federal district court thought it was an open and shut case and decided summarily for the EEOC. The 10th Circuit reversed. In a split decision, the court didn’t just send the issue to trial; it issued summary judgment for Abercrombie.

Althouse analyzes the case:

The company has changed its dress code since then, but it’s fighting this case on the ground that it didn’t deny her a religious accommodation because she didn’t ask for a religious accommodation. That is, it had a dress code that applied to everyone, and she violated it, so she was treated like anyone else who fails to comply with the dress code, not subjected to discrimination based on religion.

If she’d asked for an accommodation based on religion, the company would have had to make some conscious decision about whether an exception to the usual rule could be made. Without having been given that chance, the company argues, there’s no discrimination, the company says. The EEOC, which brought the case on behalf of Elauf, doesn’t want the burden to bring up religion to rest entirely on the employee.

Jessica Glenza provides some background on the company’s attitude towards headscarves:

This is not the only case brought against Abercrombie & Fitch for religious discrimination.

Halla Banafa, a Muslim woman who applied to an Abercrombie Kids store in California, was asked about her hijab during an interview, and then not hired. Abercrombie argued that accommodating Banafa’s headscarf would place an undue hardship on its business.

Umme-Hani Khan was fired from Hollister, an Abercrombie subsidiary. She said she was dismissed for wearing a headscarf. She worked for several months at a California store before a district manager visited. She was later asked to remove her headscarf, refused, and was suspended and fired.

Both were awarded $71,000 in a joint settlement in September 2013.

Brent Kendall puts the case into a broader (and beard-involving) context:

The court next week will weigh whether a Muslim inmate in Arkansas has the right to grow a half-inch beard, despite state-prison regulations forbidding facial hair.

Amy Howe provides background on that case:

Arkansas sets the theme for its argument from the very first paragraph of its brief: prisons are dangerous places, in which inmates can (as another inmate did in 2012) stab a prison guard to death with a homemade knife. So although it “takes religious freedom very seriously,” it explains, “it takes seriously its paramount interests in safety and security too.” When Congress passed RLUIPA, the state says, it fully expected that courts would continue to defer to prison officials on important issues like security. And it should do so even if they can’t point to actual examples of the problem that they are trying to prevent: prison officials shouldn’t have to sit around and wait for an incident to happen before taking steps to head off those kinds of incidents. Moreover, it shouldn’t matter that the state does allow prisoners with skin problems to have a quarter-inch beard. Such beards are rare and (because they are shorter) more easily monitored for contraband. Nor should it matter, according to the state, that Holt might be able to grow a beard in some other prison. We don’t know why other states do what they do – perhaps, the state suggests, they are just less risk averse than Arkansas?

Recent Dish on veiling here.