EEOC v. Abercrombie: Headscarfs and Judicial Modesty

Reversing the Tenth Circuit, the Supreme Court this morning ruled to allow an Equal Employment Opportunity Commission (EEOC) suit to go forward against retailer Abercrombie & Fitch in the widely noted “headscarf case.” The retailer had turned away a Muslim applicant who wore head covering, rather than considering whether its prescribed salesperson “look” might reasonably be refined to accommodate her wish. The outcome was not a surprise, given the way the case had developed, and in the end turned on narrow issues of statutory interpretation not much connected to the other religion-and-law cases that have riled the Court and the nation in recent years. And while the Court declined Cato’s invitation to draw a clearer line that would have averted more future disputes, its ruling is likely to be of limited direct significance: there just aren’t that many discrimination disputes that hinge on whether an employer has been explicitly told of someone’s religious beliefs.  

The Court’s near-unanimous ruling (Justice Clarence Thomas dissented in part) was unsurprising in part because the facts in evidence were not favorable toward Abercrombie: even though Samantha Elauf had not declared that her wish to wear a scarf was based on her religious beliefs, managers apparently did realize that it was so based, which mean that later, when lawyers argued that she had not put the company on notice of it being a religious issue, it seemed, well, lawyerly of them.  As Justice Antonin Scalia observed in Footnote 3 of his majority opinion – and as Justice Samuel Alito made clear as well in his concurrence – this does not mean employers will lose if they genuinely don’t know about an employee’s religious beliefs, or if they have an inkling about them but are motivated in their decision by other factors.

Even if not many future cases fall into the Abercrombie pattern, employers are still at risk in at least two other ways. First, they will be tempted to ask explicitly whether some requested accommodation (such as weekend scheduling) is based on religious belief, and such questions will sometimes rouse a suspicion of religious discrimination (or perhaps even be an act of discrimination itself). Second, they will be encouraged to make assumptions about employees’ unvoiced religious preferences that will shade into stereotyping (“She seemed so pious, we figured she probably wouldn’t want to be assigned Sunday work.”) One good way to avoid situations of being sued if you do, sued if you don’t is for judges to spell out clear rules that are easy to follow. In its concern to craft a modest statutory reading, the Court missed a chance to do that today.