Abercrombie prepares for Supreme Court battle over its Muslim headscarf policy

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Claire Zillman

The Ohio-based clothing chain will have to defend itself for not hiring a worker because the hijab she wore did not comply with its strict dress code.

It’s been a rough few months for retailer Abercrombie & Fitch, with the retirement of its colorful and sometimes controversial CEO Mike Jeffries in December and its struggling sales.

The Ohio-based clothing chain will face another challenge on Wednesday when it will appear before the Supreme Court of the United States to defend its decision in 2008 to not hire Samantha Elauf, a Muslim woman, to work at a Tulsa, Oklahoma Abercrombie Kids store as a sales associate—or a “model,” as Abercrombie calls the position internally. The reason they didn’t hire her? The hijab she wore did not comply with the company’s strict dress code.

Abercrombie’s so-called Look Policy gives “models” specific rules for their appearance—guidelines that “ensure [Abercrombie’s] consistent brand message,” according to the retailer’s court filings.

The Equal Employment Opportunity Commission sued Abercrombie for discrimination on Elauf’s behalf in 2009. The jury in that case sided with Elauf and awarded her $20,000 in damages. But the Tenth Circuit Court of Appeals in October 2013 overturned that verdict after determining that Abercrombie couldn’t be held liable because Elauf never explicitly told the company that she wore her hijab for religious purposes and that she would therefore need an exemption from the company’s dress policy.

The Supreme Court will decide if Abercrombie acted legally, and it will also answer a broader question: who’s responsible for flagging warning signs of potential religious discrimination? Put in another way, do employees and job candidates have to explicitly identify potential conflicts between their religious practices and a company’s policy? Or are there instances in which employers must point to such a clash and discuss how to work around it even if an individual does not explicitly ask?

In its filing with the Supreme Court, Abercrombie argues that it is the employee’s duty to ask for accommodation of religious beliefs; it’s not the employer’s responsibility to guess. “Employers are not supposed to ask about religious views or practices,” the filing says.

The EEOC, meanwhile, argues in its filings with the Supreme Court that “employers sometimes identify religious conflicts not known to applicants. Employers who suspect a possible religious conflict can simply advise an applicant of the relevant work rules and ask whether (and why) the applicant would be unable to comply.”

The case may very well have broad implications on matters related to religious discrimination, but it will likely have little impact at Abercrombie itself. The retailer settled two other discrimination cases related to hijabs in 2013. The company changed its look policy to acknowledge that hijabs or headscarves can be accommodated in the workplace.