WASHINGTON (AP) — Have you heard the one about the Sikh, the Hasidic Jew, the Muslim and the nun who walked into a job interview?
WASHINGTON (AP) — Have you heard the one about the Sikh, the Hasidic Jew, the Muslim and the nun who walked into a job interview?
Supreme Court Justice Samuel Alito channeled his inner stand-up comic Wednesday in indicating that he and most of the court would side with a Muslim woman who showed up for a job interview with Abercrombie &Fitch wearing a black headscarf. She didn’t get hired.
Samantha Elauf, the woman at the center of the case about religious discrimination in hiring, was in the courtroom Wednesday. The case turns on how an employer is supposed to know that a worker or applicant has religious beliefs that need to be accommodated.
The clothing retailer said Elauf can’t claim discrimination because she didn’t say anything about religion during her interview.
Alito acknowledged that it sounded like he was making a joke in describing interviews with “a Sikh man wearing a turban,” “a Hasidic man wearing a hat,” ”a Muslim woman wearing a hijab” and “a Catholic nun in a habit.” But his point was that employers can’t feign ignorance when people appear before them in religious clothing.
“Now, do you think … that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement,” Alito said.
Pressed by both conservative and liberal justices, Abercrombie lawyer Shay Dvoretzky said employers would get into trouble if they started making assumptions about people. “What we want to avoid is a rule that leads employers, in order to avoid liability, to start stereotyping about whether they think, guess or suspect that somebody is doing something for religious reasons,” Dvoretzky said.
Only Justice Antonin Scalia seemed open to the company’s argument.
Several of Scalia’s colleagues said there’s an easy way to avoid stereotyping. Tell job applicants what the rules are and ask them, as Justice Sonia Sotomayor said, “You have a problem with that?”
Those conversations sometimes might be awkward, Justice Elena Kagan said. But far better the awkward moments than a situation that leads to stereotyping anyway, Kagan said.
Indeed, Alito made the point that despite Elauf’s silence, the company assumed she would wear a headscarf to work because of her religion.
“You assumed she was going to do this every day. And the only reason she would do it every day was because she had a religious reason,” he said.
The federal civil rights law known as title VII requires employers to make accommodations for employees’ religious beliefs in most instances. Dvoretzky said the Equal Employment Opportunity Commission, representing Elauf, wants employers to treat people differently based on religion, “which is precisely the opposite of what Title VII wants.”
That provoked a sharp reply from Justice Ruth Bader Ginsburg. “Title VII requires them to treat people who have religious practice differently. They don’t have to accommodate a baseball cap. They do have to accommodate a yarmulke,” Ginsburg said, referring to a Jewish skullcap.
Elauf was 17 when she interviewed for a “model” position, as the company calls its sales staff, at an Abercrombie Kids store in a shopping mall in Tulsa, Oklahoma, in 2008. She impressed the assistant store manager. But her application faltered over her headscarf, or hijab, because it conflicted with the company’s Look Policy, a code derived from Abercrombie’s focus on what it calls East Coast collegiate or preppy style.
A decision in EEOC v. Abercrombie &Fitch, 14-86, is expected by late June.