By Hannah Garcia, LAW WEEK COLORADO
In considering a religious discrimination case out of the 10th Circuit, the U.S. Supreme Court tackled a legal Catch-22: If an employer decides not to hire an applicant because of a perceived religious conflict, is it discrimination if the employer was not
The high court heard oral arguments on Feb. 25 in the Equal Employment Opportunity Commision v. Abercrombie & Fitch Stores Inc. The questions volleyed by the justices seemed to seek compromise between two dueling ideas of liability and displayed some consternation over arguments from both sides.
The case revolves around Title VII of the Civil Rights Act of 1964, specifically whether an employer can be liable under the statute for refusing to hire an applicant based on religious observance based on having “actual knowledge” that an accommodation was required or if intuition alone is enough to require compliance.
The EEOC brought the original lawsuit against Abercrombie on behalf of Samantha Elauf, a then-17 year old who wore a black hijab to a job interview to be a clerk, or “model” in Abercrombie lingo, at a Tulsa, Oklahoma store in 2008. Elauf asked a sales clerk she knew whether her modesty headscarf would create any conflicts, and she was told the company made exceptions for Jewish employees who wore yarmulkes. Abercrombie’s “Look Policy” provides guidelines for “models” to coincide with its preppy East Coast collegiate style.