Supreme Court sides with Muslim girl denied a job over head scarf

Reporting from Washington —  Finding a civil rights cause that increasingly brings together conservatives and liberals, the Supreme Court told employers Monday that they had an “affirmative” duty under federal anti-discrimination law to accommodate the religious practices of employees and job applicants.

By an 8-1 vote, the justices sided with a 17-year-old Muslim girl who was rejected for a job at Abercrombie & Fitch because she wore a head scarf.

The court’s liberal justices have long championed religious minorities in discrimination cases. But as Christian conservatives have more frequently found themselves on the defensive over issues such as abortion and gay rights, the court’s conservatives have also embraced claims of religious liberty.

Last year, a conservative majority ruled that the religious owners of the Hobby Lobby chain of craft stores did not have to comply with a government mandate to offer certain birth control methods as part of the company’s health plan.

Monday’s opinion by Justice Antonin Scalia ruled in favor of Samantha Elauf, who wore a black head scarf to a 2008 job interview for a sales position at an Abercrombie & Fitch store in Oklahoma. She was turned away because managers feared her scarf would clash with the retailer’s image.

In its defense, the company said it had a standard “look policy” for its sales staff that did not include wearing a head scarf. It also said Elauf had never informed it of her religion nor of her need for accommodation based on her faith.

But in the courtroom Monday, Scalia described the case of Equal Employment Opportunity Commission vs. Abercrombie as “easy” because the store managers knew or “at least suspected” Elauf wore the head scarf for religious reasons.

He said the Civil Rights Act of 1964 puts the legal burden on employers not to discriminate. It gives “favored treatment” to religion, he said, and “religious practice is one of the protected characteristics … that must be accommodated.”

The majority ruled that it did not matter whether Elauf informed the company of her need for religious accommodation as long as the desire to avoid making such an accommodation was part of the company’s action.

Experts in workplace discrimination said the decision could have a wide effect.

“This case dramatically changes the standards that apply to employers because it removes the requirement that an employee or applicant request a religious accommodation, if the employer’s motive is later deemed a violation of Title VII” of the Civil Rights Act, said Michael Droke, a Seattle lawyer.

The decision was welcomed by a wide variety of religious groups, including Sikhs, Orthodox Jews, Baptists, Seventh-day Adventists and the Council on American-Islamic Relations.

Notre Dame law professor Richard Garnett saw the decision as reflecting the nation’s broad support for religious liberty. “The free exercise of religion takes place every day, not just on holy days, and in all aspects of life, including work,” he said.

This left-right support for religious claims in the United States stands in sharp contrast to France, which has sought to keep religion out of public spaces and schools. A 2010 law banned the wearing of full-faced veils in public, and last year a French appeals court upheld the dismissal of a Muslim day-care employee for refusing to remove her head scarf at work.

By contrast, the U.S. Constitution forbids the government from interfering with the “free exercise of religion,” and several federal laws forbid discrimination based on religion.

Monday’s ruling was the second one this year in which a Muslim plaintiff prevailed. In January, the justices ruled unanimously for a Muslim inmate in Arkansas who sought the right to maintain a short beard despite the prison’s “no beards” policy.

Even though the Civil Rights Act has been on the books since 1964, the Supreme Court has said remarkably little about its protection against religious discrimination. The law is better known for banning racial discrimination by schools, colleges, employers and businesses.

It says employers may not “refuse to hire” or otherwise discriminate against someone because of their “race, color, religion, sex or national origin.” And the law says religion “includes all aspects of religious observance or practice as well as belief.”

Religious claims, however, do not always win. The law says employers must make a “reasonable accommodation” for an employee’s religious practices, except when doing so would put an “undue hardship on the conduct” of the business.

The Equal Employment Opportunity Commission, which enforces the law, sued on Elauf’s behalf. A federal judge ruled she was a victim of illegal discrimination, and a jury awarded her $20,000 in compensation.

But the U.S. 10th Circuit Court of Appeals in Denver reversed the decision and said the company was not liable because she did not ask for a special accommodation for her religion.

Justice Clarence Thomas, who once headed the EEOC, was the lone dissenter. He said that the company enforced a “neutral policy” on appropriate attire for the sales staff, and that “mere application of a neutral policy cannot constitute intentional discrimination.”

The justices sent the case back to the appeals court in Denver.

Carlene Benz, a spokesman for the company, denied it had discriminated against Elauf and said the retailer allowed workers to wear head scarves when requested for religious reasons.

“We have made significant enhancements to our store associate policies, including the replacement of the ‘look policy’ with a new dress code that allows associates to be more individualistic,” she said.

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