Source: NY Times By THE EDITORIAL BOARD JUNE 2, 2015
“This is really easy,” Justice Antonin Scalia said on Monday morning as he announced the Supreme Court’s 8-to-1 decision in favor of a Muslim woman who was denied a job at the clothing-store chain Abercrombie & Fitch because her head scarf violated the company’s “Look Policy.”
In a brisk seven pages, the court’s opinion rejected Abercrombie’s defense that it had not in fact known — although it did suspect — that Samantha Elauf, the plaintiff, wore the scarf, known as a hijab, for religious reasons.
Of course, from Ms. Elauf’s perspective, the case has been anything but easy. She applied for a job at the company’s Tulsa, Okla., store in 2008, when she was 17. After her denial, she won $20,000 in a jury trial, but that verdict was reversed by the United States Court of Appeals for the 10th Circuit on the grounds that she had not explicitly told Abercrombie why she wore the scarf.
That did not matter, Justice Scalia wrote for the court. Under Title VII of the 1964 Civil Rights Act, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” All Ms. Elauf had to show under the law, he said, was that her religious practice was “a motivating factor” in Abercrombie’s decision not to hire her.
Nor did it matter that Abercrombie’s policy was neutral, barring all head coverings in favor of a “classic East Coast collegiate style.” The law requires not simply that religious practices “be treated no worse than other practices,” Justice Scalia wrote, but that they receive “favored treatment.” The only exception is when a business can show that accommodating a religious practice would create an “undue hardship” for it. (Justice Clarence Thomas dissented in part, arguing that application of a neutral policy cannot constitute intentional discrimination.)
The justices sent the case back to the appeals court, which must reconsider Ms. Elauf’s claim of discrimination.
Abercrombie has relaxed its dress policy and said it now grants requests for religious accommodations, including the wearing of hijabs. But the company’s claim of ignorance about Ms. Elauf’s reason for wearing her head scarf is hard to believe. If it truly did not know why she wore her head scarf, it could have asked her whether its dress policy would pose any problems for her, and made an accommodation for her at the time. Instead, it has litigated this case for seven years. All along, Ms. Elauf has felt “disrespected because of my religious beliefs,” as she testified during the trial. “I was born in the United States, and I thought I was the same as everyone else.” That goes equally for members of other religions, like Sikhism, who often face discrimination for turbans and beards that are in accordance with their beliefs.
The nearly unanimous ruling is a common-sense reading of the Civil Rights Act, and a good reminder for employers that the best policy is one of inclusiveness and accommodation.