A Hijab and a Hunch: Abercrombie and the Limits of ...

A Hijab and a Hunch: Abercrombie and the Limits of Religious Accommodation

Walter Olson*

"This is really easy," ad-libbed Justice Antonin Scalia from the bench just before announcing the Court's decision in EEOC v. Abercrombie & Fitch Stores, the hijab case.1 And indeed, amid the term's storms and squalls, Abercrombie came off as something of a respite of sunny harmony. It united justices across the usual lines and Scalia's opinion for all but one of his colleagues was hailed by liberal Court-watchers. Even the lone naysayer, Justice Clarence Thomas, expressed relatively cordial disagreement, suggesting the plaintiff might have won her case on a different theory.2

The Equal Employment Opportunity Commission, a federal agency oft battered by Roberts Court jurisprudence, found solace as well. It had represented a sympathetic young plaintiff, Samantha Elauf, the largely undisputed facts of whose case were both easy to grasp (she wanted to wear her religious head covering while working at a clothing store) and literally colorful (the hue of a scarf figured as one bit of evidence). The direct stakes were unusually low for a Supreme Court case--Elauf had won a trial verdict of just $20,000, which the appellate court had snatched away--but that just underscored that everyone was in the case for the principle of the thing.

Public discussion of the case, too, managed to be lively but mostly not strident. This was remarkable because Abercrombie assembled elements that in other contexts might have made for a combustible mix: stereotyping, Islam, and the exposure of women's bodies to the male gaze, just for a start. The year before, the collision of religious accommodation in the workplace with women's interests and gender

*Senior fellow, Cato Institute Center for Constitutional Studies; associate editor, Cato Supreme Court Review.

1 135 S. Ct. 2028 (2015). 2 Id. at 2037?38 (Thomas, J., concurring in part and dissenting in part).

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roles had generated nationwide fits of hyperbole in the case of Burwell v. Hobby Lobby, with a Supreme Court majority said to be on the verge of imposing on a once-free nation a Handmaid's Tale-like dystopia of gender inequality and subordination. In fact, even as it calmly discussed the Abercrombie case, America's pundit class was gripped by a fury of contention over attempts in Arizona and Indiana to adopt local versions of the Religious Freedom Restoration Act, based on the 1993 federal enactment at issue in Hobby Lobby. Perhaps one difference--but surely not the only one--was that in the A&F case conservative religious belief and the interests of employers were ranged against each other rather than being on the same side.

The breadth of amicus support on Elauf's side was impressive: the Becket Fund for Religious Liberty, Americans United for Separation of Church and State, the Orthodox Church in America, the gay-advocacy Lambda Legal Defense and Education Fund, the American Jewish Committee, and so on. The ACLU, National Association of Evangelicals, American Islamic Congress, and Christian Legal Society not only backed the plaintiff, but did so all on the same brief.

The resulting decision seemed to be a crowd-pleaser as well, perhaps because it quietly kicked some of the more difficult issues down the road. It was hailed by groups on every side of law-and-religion debates, by feminists and anti-feminists, by supporters and scathing critics of Islamic practices. And when so many contestants can see their own hopes reflected in a Court pronouncement, one thing seems sure: someone is going to wind up disappointed.

Would a Headscarf Fit the Look?

If you were committed to the virtue of bodily modesty, Abercrombie & Fitch (A&F) might sound like the very last place you'd want to work. Described by the New Yorker as "one of the most successful-- and most hated--brands in retail history,"3 A&F had built its business plan around what had been called the "sexualized marketing"4 of "young, beautiful, and barely clothed" models whose "sculpted

3 Christopher Glazek, The Story Behind `Fitch the Homeless', New Yorker, June 19, 2013.

4 David Yi, Abercrombie & Fitch Kicks Out Shirtless Models, Ending an Era of Abs, Mashable, Apr. 24, 2015, available at .

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torsos" and suggestive postures hinted at an anything-goes party scene.5 Appalled parents wrote letters of protest to its Columbus, Ohio headquarters, which (at least for a time) only seemed to help its sales.

It's not quite so paradoxical, though, that 17-year-old Samantha Elauf might find herself filling out an application form there. Along with its main college-age brand, the company also ran a middle- and high-schooler chain called Abercrombie Kids. The tamer apparel items on offer at Kids, unlike the crop tops and tight shorts for which its older sibling was known, would probably not get you sent to the principal's office. (The retailer, which has more than 400 locations in the United States as well as operations overseas, also operates under the Hollister brand.) There was a Kids store at Woodland Hills Mall in Tulsa, Oklahoma, and Samantha's friend Farisa Sepahvand, who worked there, urged Samantha to apply.

A&F was famously obsessed with presentation, its outlets often resembling theatrical sets as much as conventional stores. Sales-floor staffers were called "models" and had to have a consistent look that promoted the type of garments the company sold, though they didn't have to be actual A&F goods. Certain types of shoes were required, female employees were forbidden to wear necklaces and bracelets, and so forth. It was called the Look Policy.

Would Samantha Elauf's headscarf, which she wore in line with her Islamic faith, be acceptable? She approached an acquaintance who was a manager at the store--he wasn't going to be a decision maker on her own application--who remembered having worked with a sales staffer who wore a yarmulke, which had been fine even though the Look Policy banned "caps." He thought a headscarf would be okay too, even though the company didn't sell scarves, but advised her to wear a color other than black. A&F didn't like black clothes and found them inconsistent with the Look.

At the interview, Elauf did wear a black headscarf; applicants were not required to wear clothing compliant with the Look Policy at this meeting, although the company did use it to evaluate their overall fashion sense. It was something of a scripted affair, and neither the

5 Robert Klara, The Rise and Fall of the World's Most Hated Clothing Brand, AdWeek, Nov. 2, 2014, available at .

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topic of the headscarf nor religion, it was later agreed, had come up. In any event, Elauf must have made a good impression, because the hiring manager recommended she be offered a job. But the manager was unsure how to proceed on the headscarf question. Piecing together bits of information--the teenager had never been seen around the mall bareheaded, for example--the manager "assumed" that she was probably Muslim and "figured" that was why she wore the scarf.6 These words would prove significant later.

When she (the local hiring manager) consulted a district manager to ask how the company's policy would apply, he vetoed the hiring. As far as he was concerned, a headscarf violated the Look Policy, period. Later, there was a conflict of testimony: the hiring manager said the topic of religion came up and the district manager had dismissed it as no reason to make an exception. But the district manager denied that and remembered no discussion of religion. (That was one of the few conflicts in what was otherwise largely an agreed factual record in the case.) Although testimony indicated that he was aware that many Muslim women cover their heads as a religious practice, he saw the situation at hand as a simple breach of company policy.

Had he called corporate headquarters on that, it is not impossible that they might have given him the go-ahead for the scarf. As early as 2006, A&F had approved a headscarf exception to its policy. In the next few years, it began granting many more exceptions; of course, this was the period in which the Elauf case was going public, and lawyers would have been getting involved. By 2010, A&F's general counsel specifically said the company made every reasonable effort to grant head-covering as a religious accommodation. But by then it was in court with Elauf, who had never gotten a call back after the district manager's decision. Her friend at the store passed along word that it had been because of the headscarf, and the EEOC filed suit on her behalf in 2009.

Up Through the Courts

Title VII of the Civil Rights Act of 1964, as amended, makes it an unlawful employment practice "to fail or refuse to hire" any individual "because of such individual's . . . religion,"7 and provides that

6EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1113, 1128 (10th Cir. 2013). 7 42 U.S.C. ? 2000e-2(a).

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the "term `religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."8 The District Court for the Northern District of Oklahoma, applying this law to the facts as submitted by the parties, granted the EEOC summary judgment as to liability. It also determined that the accommodation sought would not pose an undue hardship to the company. In a religious-accommodation dispute under Title VII of the Civil Rights Act an employer can establish undue hardship by proving that cost or disruption exceeds a de minimis level, but the court found A&F had failed to meet even that not-very-demanding hardship standard. Following a trial, a jury awarded Elauf $20,000.

A panel of the U.S. Court of Appeals for the Tenth Circuit, in an opinion by Judge Jerome Holmes, joined by Judge Paul Kelly, Jr., overturned the EEOC's grant of summary judgment and instead granted summary judgment to Abercrombie. In partial dissent, the third judge on the panel, Senior Judge David Ebel, agreed with the overturning of the summary judgment to the EEOC but would have remanded for trial, finding that the disputable issues were too great to justify a counter-award to Abercrombie.9

Along the way, Abercrombie had struck out on various points. Aside from its arguments on undue hardship, it had gotten nowhere trying to challenge whether Elauf really held (to quote a formula announced in earlier cases) "a bona fide religious belief that conflicts with an employment requirement."10 It got her to admit, for example, that she went to mosque only occasionally, and didn't pray daily. She regarded female relatives who didn't cover their heads as still being good Muslims. Although she did follow some observances such as refraining from drink and gambling and observing the Ramadan fast, it was hard to classify her as a purist or strict Muslim.

8 42 U.S.C. ? 2000e(j). 9 731 F.3d at 1143 (10th Cir. 2013) (Ebel, J., concurring in part and dissenting in part). 10 See, e.g., Knight v. Connecticut Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001); Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495, 500 (5th Cir. 2001); EEOC v. USPS, 94 F.3d 314, 317 (7th Cir. 1996); Chalmers v. Talon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996), cert. denied 522 U.S. 813 (1997).

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