When Samantha Elauf interviewed at her local Abercrombie & Fitch in Tulsa, Okla. in 2008, it was for the role of "model", as the teen clothing chain calls its part-time sales staff.
Then 17, fashion enthusiast Elauf impressed manager Heather Cooke, gaining a high score and a recommendation for hiring. However, once Cooke consulted with a district manager, Elauf's score in the "appearance and sense of style" category -- part of Abercrombie's well-known "look policy" -- dropped. She didn't get the job.
The problem, per Abercrombie: Elauf, a practicing Muslim, had worn a black hijab (or headscarf) to her interview.
The clothier has strict guidelines for how its sales staff ("models," in their parlance, after all) must look while selling jeans and tees to the masses.
Samantha Elauf. Photo: YouTube.
These rules include a ban on facial hair, unnatural-looking highlighted hair and dangly earrings. And "caps," including headscarves worn for religious reasons.
The Equal Employment Opportunity Commission (EEOC) sued on Elauf's behalf and won. The U.S. District Court for the Northern District of Oklahoma found that Abercrombie had engaged in religious discrimination. But in 2013, the 10th Circuit U.S. Court of Appeals reversed that decision, siding with Abercrombie.
On Wednesday, the Supreme Court will hear the case.
The 10th Circuit contended in its ruling that Elauf isn't protected under the 1964 Civil Rights Act because she didn't explicitly inform Cooke during her interview "of the need for a religious accommodation" -- that is, that she'd need an exemption from Abercrombie's "look policy" for her hijab.
Placing the onus on an employee to disclose their religious beliefs is dangerous, the EEOC argues.
"By holding that an employer may discriminate against a job applicant or employee based on practices that the employer correctly believes to be religious, so long as the employer does not have ‘actual knowledge’ of the need for religious accommodation...opened a safe harbor for religious discrimination," said its attorneys in a brief.
"She would've had to say in an interview, 'I wear this headscarf because of my religion and have to wear it and need an accommodation,'" said Lucretia Clemons, an employment lawyer and partner at the Philadelphia office of Ballard Spahr who has followed the case closely for years.
"It's an unusual case. Abercrombie & Fitch admits they didn't hire her because of her headscarf. That rarely happens."
Should the Supreme Court decide in Abercombie's favor, the consequences could be damaging for diversity in the workforce, according to Clemons.
"This could have ramifications for pregnancy, and for disability," she said.
"Employers who are at the forefront of diversity practices deal with these issues in very different ways. The focus is on being inclusive. While Abercrombie's policy is about their look and their brand, most employers in my experience wouldn't care about that. They would want a good employee. And they'd make the accommodation."
Samantha Elauf now works as a store merchandising manager at a Tulsa, Okla. branch of Urban Outfitters. She is in Washington, D.C. for the Supreme Court hearing, still represented by the EEOC (in this case, the Solicitor General of the Department of Justice). The EEOC was unable to comment on pending litigation.
In a statement, Abercrombie highlighted its commitment to hiring diverse "models" for its stores.
"This case relates to events occurring in 2008," said a spokesperson.
"A&F has a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs. The narrow issue before the Supreme Court is whether an employee who wants a religious accommodation must ask for one, or whether employers are obligated to guess and speculate about an employee's religion to ascertain the need for religious accommodation."
