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September/October 2015

Discover more articles from this issue.

If My People

It was the Elizabethan poet Thomas Dekker who wrote of the “merry month of May.” And so it must have seemed to some living during what his society...

If the Cap Fits

A question of head covering and employment

RFRA Again

Why Indiana became a flash point for religious liberty.

Be Heard Project Models Success

Sometimes success is a matter of a well thought out plan: just ask the ACLJ.

Walking the Line On Religion

Presidential candidate Jeb Bush tackles the "vision thing" of religious liberty.

Identity Clash

A statement of faith by an archbishop creates community conflict.

Breaking the Covenant

A Canadian Christian law school discovers that its principles have a cost.

God and Government

Tracing a secular crusade.

Magazine Archive »

Published in the September/October 2015 Magazine
by Todd R. McFarland

A Sikh wearing a turban, a Hasidic Jew wearing a hat, a Muslim wearing a hijab, and a Catholic nun in a habit walk into an Abercrombie & Fitch interview: not the beginning of a cringe-worthy joke but rather a hypothetical by Supreme Court Justice Samuel Alito to Abercrombie’s lawyer. The context was oral argument in the first religious accommodation case the Supreme Court has heard since 1986: EEOC v. Abercrombie & Fitch.

In mid-2008 17-year-old Samantha Elauf applied for a sales job at an Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. As a practicing Muslim she had worn a hijab since she was 13, feeling it was a sign of modesty. She wore the headscarf to the interview, but nothing was said about it.

The hiring manager, per Abercrombie’s policy, evaluated her on various criteria, giving her a score high enough to hire her. However, the manager, not knowing if wearing the hijab violated company policy, asked her manager about it. That manager didn’t know; so she asked the district manager. The district manager decreed that a headscarf was similar to a baseball cap and therefore banned. He told the hiring manager to “lower her score.” Samantha wasn’t hired.

Most of the time when someone doesn’t get a job he or she never finds out why. However, Samantha’s interview had gone so well that she had been more or less told to expect a call telling her she was hired. When that call never came, she inquired about why she hadn’t been hired; and that is when she was told it was because of the headscarf.

Even at 17 Samantha knew that wasn’t right. She contacted the Equal Employment Opportunity Commission, the federal agency responsible for enforcing the country’s workplace nondiscrimination laws. After investigating Samantha’s claim, the EEOC brought suit against Abercrombie for religious discrimination. The EEOC prevailed, and a jury awarded Samantha $20,000.

However, Abercrombie appealed and won on appeal. The reason? Samantha had not specifically told Abercrombie during the interview that wearing a headscarf was a religious practice and that she would need an accommodation to be exempted from the no “caps” policy.

There was a reason she had not asked for an accommodation: she hadn’t known she needed one. Of course, she wasn’t alone in her ignorance—the hiring manager herself hadn’t known the policy on headgear and had to go through two levels of management to get the answer. Despite this, the appellate court said Samantha should have raised the issue during the interview.

The Supreme Court justices

Even though Samantha had not specifically said her headscarf was part of her faith, Abercrombie was not exactly caught unaware. The hiring manager testified she assumed Samantha was Muslim and that was why she was wearing the headscarf. When the hiring manager told all of this to the district manager, it was only then that the district manager ordered her score lowered.

Despite this, the appellate court said Abercrombie lacked “actual knowledge”; because Samantha didn’t tell Abercrombie that she was wearing the hijab for a religious purpose. The fact that Abercrombie accurately assumed she was Muslim was of no consequence to the court.

This is a curious standard to hold a plaintiff to in a civil case. This type of “actual knowledge” is not required anywhere else. In fact, in the criminal context (which is supposed to have a higher standard than civil cases) people have been put in jail for a long time based on less evidence than the court was requiring of a 17-year-old.

A colleague of mine had a case a few years ago involving a convenience store manger. The manager had found willing buyers of Sudafed by the case at twice its retail price. She didn’t even have to put it out on the shelf; they would just go to the stockroom and pick up the cases themselves. She never asked why they wanted so much decongestant, and they never told her.

But when it turned out that these guys were using the Sudafed to make methamphetamine, this lack of “actual knowledge” didn’t stop the police from arresting her or her being convicted and sentenced to jail for close to 10 years. The appellate court said that the facts of the case gave a jury sufficient basis to convict her. But under the ruling of the court of appeals, it was easier to send someone to jail than to hold a large corporation accountable for religious discrimination.

The rationale the court of appeals used was that companies are not supposed to make assumptions about their employees’ religion. That is normally true, but the appellate court turned this general proposition and twisted it to say that holding Abercrombie accountable would mean all employers would have to start making assumptions about employee religious beliefs and practices. According to the court of appeals’ perverted logic, letting Abercrombie off the hook was actually a blow for greater workplace equality, because now employers wouldn’t be making assumptions.

What is twisted about this logic is that Abercrombie had made an (accurate) assumption about Samantha and acted on that assumption. Had the interviewer thought that Samantha was wearing a headscarf because she was having a bad-hair day the hiring manager would have just figured that Samantha would comply with the rule when informed. It was precisely because Abercrombie thought it was religious that it assumed (again accurately) that Samantha would need an accommodation. It was the desire to avoid accommodating her that motivated the district manager to order her score lowered so that she was not hired.

While we are warned about what happens when we make assumptions, it turns out that we have to make decisions all the time on less-than-perfect knowledge. If a woman comes in wearing a nun’s habit, she could be on her way to a costume party. But if it’s 10:00 a.m. and it’s a Christian bookstore, no one is going to think the clerk bigoted if she greets the habit-wearing woman with “Sister.”

Ironically, this commonsense approach to religious dress is one that at least one of Abercrombie’s lawyers understood and availed himself of. When the case was argued at the U.S Supreme Court, an Abercrombie lawyer was wearing a dark-colored, round piece of cloth affixed to his head. Like most courts, it is against the court rules for men to wear coverings at the Supreme Court, unless it is for a religious reason.

Presumably none of the Court’s marshals had “actual knowledge” of Yaakov Roth’s religious belief, yet no one asked him to remove his head covering. This was not some oversight by Court personnel. I know from personal experience that the Supreme Court marshals are neither unobservant nor shy about enforcing the rules. Once while attending oral argument I violated the (unknown to me) rule against resting your arm on the empty seat beside you. I quickly received a polite tap on the shoulder.

No civil rights violation occurred when the marshals assumed that the Yamaka-looking piece of cloth was in fact a Yamaka and its wearer was Jewish. In fact, had Mr. Roth been approached and asked to remove his head covering, that person would be thought at best to be clueless and at worst bigoted.

Fortunately, the Supreme Court’s marshal service is not the only part of the Court with some common sense. The justices had little difficulty in rejecting Abercrombie’s arguments. In an 8-1 decision the Supreme Court found in favor of the EEOC and Samantha and against Abercrombie & Fitch.

Justice Antonin Scalia wrote that the law prohibits employers from making decisions that are motivated by an employee’s religious practice, regardless of whether it is confirmed. In fact, the Court pointed out that rather than having an “actual knowledge” standard the law has no knowledge requirement. The lower court had read into the statute a word that didn’t exist: knowledge.

This does not mean that employers are going to be caught off guard and sandbagged by religious employees. Employees still need to let the employer know about the need for an accommodation when the employee knows they need one. What the Court said was employers can’t screen out religious applicants with willful ignorance or some heightened knowledge standard otherwise unknown in the law.

The decision in EEOC v. Abercrombie was important for another reason as well. Abercrombie had also argued that because it evenly applied a general work rule, it could not be held liable. According to Abercrombie, in order to be liable Samantha had to claim that Abercrombie let other people wear head coverings but not her. In other words, she had to prove she had been treated differently.

Once again Abercrombie misrepresented what the law requires when it comes to religious accommodation. Accommodation means not that a person is treated the same, but rather that that person receives some form of different treatment. If the normal rules didn’t create a conflict, then there would be nothing to accommodate. Justice Scalia said as much when he said that religious practices receive not equal treatment but “favored treatment.”

Some people, including some people of faith, objected to this “favored treatment” Samantha was asking for. They felt that Abercrombie should be able to run its stores as it sees fit and that if it wants to ban headscarves, that is its right, regardless of Samantha’s faith.

It is important to understand that that was not the issue before the Court. Employers’ obligation to accommodate religion is not unlimited—in fact it is minimal (de minimis, according to the Supreme Court). Abercrombie was not arguing that the imposition on its business was such that it couldn’t accommodate her. In fact, by the time the case got the Supreme Court, Abercrombie had changed its policy, allowing religious headwear. Rather, Abercrombie was arguing that Samantha wasn’t protected by the law because she hadn’t uttered the magic words needed to invoke it. This was a legal principle that if adopted would have been disastrous for people of faith.

The importance of this case was demonstrated by the wide range of amicus curiae (friend of the court) briefs filed in support of Samantha. The brief drafted by the Seventh-day Adventist Church had 15 different religious and civil rights groups on it. Jews, Muslims, Sikhs, and Christians all joined together to get behind the protection of religion in the workplace. Despite profound theological and ideological difference, all these groups could agree on one thing: religion is deserving of protection.

Samantha’s case set an important precedent for all people of faith in the United States. As a religiously pluralistic society we must make room for all Americans to participate fully in society, and that means not having to chose between one’s faith and a job. Samantha Elauf helped protect all people of faith from being forced to make that choice.

Author: Todd R. McFarland

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