Is Anyone Else Fascinated by the Abercrombie and Fitch Supreme Court Case?
March 03, 2015
Surely you're in professional awe of some of the issues in play in the current Abercrombie and Fitch Supreme Court case focused on Religious Discrimination, right?
Need a reset? Here you go:
An Abercrombie and Fitch manager declined to hire Samantha Elauf, then 17 years old, at a Tulsa, Okla., store because the head scarf she wore to a job interview violated the company’s “look policy,” a dress code requiring staff to wear attire similar to what the store sells.
While managers correctly believed Ms. Elauf was a Muslim, she didn’t tell them her religion and its requirements, so the company's position is that it shouldn’t be liable for discrimination. To do so, A&F lawyers claim, “is asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice.”
Ugh. Look policies and a connection to religious beliefs. How you feel about this probably depends on whether you think candidates should always identify any personal appearance markers (head scarf, beards, etc) as being representative of religious beliefs.
If they identify, there's no question. But it they don't identify, should you have the right as an employer to dismiss as a candidate based on something as nebulous as "look policy"?
Here's a couple of Supreme Court Justices weighing in over the last week:
JUSTICE ALITO: "All right. Let's say four people show up for a job interview at Abercrombie. And this is going to sound like a joke, but, you know, it's not. (Laughter.) So the first is a Sikh man wearing a turban; the second is a Hasidic man wearing a hat; the third is a Muslim woman wearing a hijab; the fourth is a Catholic nun in a habit. 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.'?"
JUSTICE KAGAN: "But you're essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation, to ask some questions. Now, people can disagree about whether one can ask those questions in a way that's awkward at all, but you’re saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But the alternative to that rule is a rule where Abercrombie just gets to say, 'We're going to stereotype people and prevent them from getting jobs. We'll never have the awkward conversation because we're just going to cut these people out and make sure that they never become Abercrombie employees.' Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem?"
It will be interesting to see how this one comes back.
BTW, Elauf if now employed at an Urban Outfitters location. No joke. They hired her, and it would seem their look policy is a little different that A&Fs - which is probably apparent to EVERYONE.
You're no Nina Totenberg when it comes to SCOTUS play-by-play, but that was pretty good.
Posted by: Joe | March 03, 2015 at 03:10 PM