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Lisa Schmidt

Abercrombie Goes to the Supreme Court over Religious Discrimination

Can wearing a hijab lose you a job? At Abercrombie it can.Imagine your boss telling you to take off your cross necklace or go home. Or wearing your religious headscarf to an interview and having it cost you the job. Would you be angry? For one Muslim woman, the issue was serious enough to take it all the way to the U.S. Supreme Court.The United States Supreme Court, the highest authority in our justice system, has begun announcing which cases it will hear during the 2014-2015 session. Near the top of the list is the U.S. Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch – a religious discrimination case.

In 2008, the EEOC sued Abercrombie after Samantha Elauf was denied a sales job because her hijab (a headscarf worn by some devout Muslim women to protect their modesty) violated the store’s rigid dress code. The EEOC argued that their policies violated federal law prohibiting most employers from discriminating based on religion or religious expression. A trial court ruled in Elauf’s favor, but the 10th Circuit Court of Appeals reversed the decision. The reason: Elauf, who wore the hijab to her interview, never explicitly asked for a religious accommodation.

Abercrombie’s “Look Policy” is a set of strictly enforced guidelines that control the colors, brands, and styles the stores’ salespeople (called “models”) are allowed to wear. It even includes limits on hairstyles and highlights. Jewelry must be “simple and classic.” Former CEO Mike Jeffries claimed that the dress code goes to the “very heart of [its] business model,” and it could hurt business if employees don’t adhere to the rules.

This isn’t the first time the dress code has gotten the business in trouble. In 2009, a store manager forced a 17 year old “model” to remove her silver cross pendant necklace. Then in 2013, the store faced two separate lawsuits based on religious discrimination against women who wore hijabs. In the 2013 settlement, the store made changes to its dress code to acknowledge hijabs were OK and promised to train managers.

But the changes didn’t reach the legal department, it seems, who continue to defend the store’s discriminatory dress code all the way up to the Supreme Court. In the next session the Court will decide whether a person specifically has to request a religious accommodation at her interview, or whether the open display of religious clothing is enough to give the potential employee protection against discrimination. Given this court’s relatively recent decision that suspects must clearly articulate their intent to assert their right to remain silent (rather than just simply remaining silent), things don’t look good for Ms. Elauf and other practicing Muslims hoping to work at Abercrombie & Fitch.

Lisa J. Schmidt is a family, juvenile, and criminal defense attorney with a background in Constitutional law issues. She owns Schmidt Law Services, PLLC. If you or someone you know is faced with a legal challenge, contact Schmidt Law Services today for a consultation.

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