# EEOC v. Abercrombie & Fitch Stores, Inc.
**URL:** https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344
**Category:** Great Debates
**Created:** [June 1, 2015, 3:12pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344 "2015-06-01T15:12:32Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)
#### Post date: [June 1, 2015, 3:12pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/1 "2015-06-01T15:12:32Z")
I don’t see more than a blurb about this decision at the moment, although there are plenty of articles from back in February when the case was argued, so I don’t have much to link to just yet.
[
> [@](#):
>
> The Supreme Court has sided with a Muslim woman who did not get hired after she showed up to a job interview with clothing retailer Abercrombie & Fitch wearing a head scarf.
>
> The justices said Monday that employers generally have to accommodate job applicants and employees with religious needs if the employer at least has an idea that such accommodation is necessary.
>
> Job applicant Samantha Elauf did not tell her interviewer she was Muslim.
>
> But Justice Antonin Scalia said for the court that Abercrombie “at least suspected” that Elauf wore a head scarf for religious reasons. Scalia said: “That is enough.”
]([http://bigstory.ap.org/article/edb6a83fe1c042d1bbd58ebe2a68a5c6/justices-rule-muslim-denied-job-over-headscarf](http://bigstory.ap.org/article/edb6a83fe1c042d1bbd58ebe2a68a5c6/justices-rule-muslim-denied-job-over-headscarf))
Apparently now it’s up to the employer to ask about religious accommodations that might be needed. Also, apparently now every aspect of a person’s appearance can be “religious”, since how can anyone possibly know every religion or every religious ritual/observance, right?
Like most religious accommodation laws & decisions, I don’t think I’m very comfortable or happy with this particular decision (or the recent trend, in general), but I also admit I likely don’t know enough about this case or the legal background to have a firm opinion. It sure does seem that some people (the religious) have more rights than I (an atheist) do, tho.
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### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [June 1, 2015, 4:14pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/2 "2015-06-01T16:14:28Z")
> [@Snowboarder\_Bo](#):
>
> Apparently now it’s up to the employer to ask about religious accommodations that might be needed. Also, apparently now every aspect of a person’s appearance can be “religious”, since how can anyone possibly know every religion or every religious ritual/observance, right?
Your observations seem poor. Have you read the [opinion](http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf)? It’s pretty short.
It is not up to the employer to ask about religious accomodation - no where in the opinion of the court is that stated or implied. The key factor is what motivates the hiring decision. Relgion cannot be a factor in such a motivation. This motivation is independent of the actual knowledge the employer may possess about a prospective applicant. If am employer is motivated in their hiring decisions by a prospective applicants’ religion, that is in violation of the law.
This same rationale defeats your second observation as well. While it is true that an employer cannot possibly know every religion or every religious ritual, this is irrelevant. The key factor is whether the hiring decision is motivated by a persons’ religion.
> [@](#):
>
> Like most religious accommodation laws & decisions, I don’t think I’m very comfortable or happy with this particular decision (or the recent trend, in general), but I also admit I likely don’t know enough about this case or the legal background to have a firm opinion. It sure does seem that some people (the religious) have more rights than I (an atheist) do, tho.
You are right about this part - Title VII of the Civil Rights Act does elevate religious (and other) accomodations over secular otherwise neutral employment policies. From the opinion:
> [@](#):
>
> Nor does the statute limit disparate-treatment claims to
> only those employer policies that treat religious practices
> less favorably than similar secular practices. Abercrombie’s
> argument that a neutral policy cannot constitute
> “intentional discrimination” may make sense in other
> contexts. But Title VII does not demand mere neutrality
> with regard to religious practices—that they be treated no
> worse than other practices. Rather, it gives them favored
> treatment, affirmatively obligating employers not “to fail
> or refuse to hire or discharge any individual . . . because of
> such individual’s” “religious observance and practice.” An
> employer is surely entitled to have, for example, a noheadwear
> policy as an ordinary matter. But when an
> applicant requires an accommodation as an “aspec[t] of
> religious . . . practice,” it is no response that the subsequent
> “fail[ure] . . . to hire” was due to an otherwiseneutral
> policy. Title VII requires otherwise-neutral
> policies to give way to the need for an accommodation.
I found this section interesting (my bold):
> [@](#):
>
> Abercrombie urges this Court to adopt the Tenth Circuit’s
> rule “allocat[ing] the burden of raising a religious
> conflict.” Brief for Respondent 46. This would require the
> employer to have actual knowledge of a conflict between
> an applicant’s religious practice and a work rule. The
> problem with this approach is the one that inheres in most
> incorrect interpretations of statutes: \*\*It asks us to add
> words to the law to produce what is thought to be a desirable
> result. That is Congress’s province. We construe
> Title VII’s silence as exactly that: silence. \*\*
I’m pretty sure which way Scalia will vote in Halbig, while Scalia delivered the opinion of the Court, ROBERTS, KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN joined. We’ll see if they hold consistent in this line of reasoning. I bet there will be defectors from this section in the future.
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### Author:  [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)
#### Post date: [June 1, 2015, 4:24pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/3 "2015-06-01T16:24:53Z")
> [@Bone](#):
>
> Your observations seem poor. Have you read the [opinion](http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf)? It’s pretty short.
No, I haven’t read it yet. As I alluded to in the OP, googling the case brought mostly old articles from February and a handful of reprints of the AP story. Thank you for providing a link.
Thanks also for your attempts to clarify things that I apparently misunderstood.
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### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 1, 2015, 4:29pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/4 "2015-06-01T16:29:44Z")
Interesting result, but probably limited in application, since the kind of evidence the EEOC had in this case–that the company obviously thought a religious accommodation would be needed even if it had not been requested or explained by the applicant–is very rarely going to exist. Few HR employees are stupid enough to send the kind of emails they had in this case.
> [@Bone](#):
>
> I’m pretty sure which way Scalia will vote in Halbig, while Scalia delivered the opinion of the Court, ROBERTS, KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN joined. We’ll see if they hold consistent in this line of reasoning. I bet there will be defectors from this section in the future.
It is emphatically not the case that anyone on the other side of _Halbig_ is going to say “Let’s add words to the law to produce what is thought to be a desirable result!” That’s a conservative straw man, and it deserves no place in your otherwise fine analysis.
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### Author:  [@Channing\_Idaho\_Banks](https://boards.straightdope.com/u/Channing_Idaho_Banks)
#### Post date: [June 1, 2015, 4:56pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/5 "2015-06-01T16:56:53Z")
They didn’t have to hire this woman and they didn’t have to give a reason why not. You would think they would know that by now.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [June 1, 2015, 5:21pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/6 "2015-06-01T17:21:14Z")
> [@Snowboarder\_Bo](#):
>
> Like most religious accommodation laws & decisions, I don’t think I’m very comfortable or happy with this particular decision (or the recent trend, in general), but I also admit I likely don’t know enough about this case or the legal background to have a firm opinion. It sure does seem that some people (the religious) have more rights than I (an atheist) do, tho.
I don’t think so. You can’t be “not hired” because of your religion, but you also can’t be “not hired” because of your lack of religion, when a public accommodation is involved.
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### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [June 1, 2015, 5:32pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/7 "2015-06-01T17:32:10Z")
> [@Richard\_Parker](#):
>
> It is emphatically not the case that anyone on the other side of _Halbig_ is going to say “Let’s add words to the law to produce what is thought to be a desirable result!” That’s a conservative straw man, and it deserves no place in your otherwise fine analysis.
I concede that the arguments in Halbig are not this straightforward and that none on the court would take this position directly. The isues in Halbig are more complex and the current opinion is not indicative of any justices’ stance in that issue. I personally found that passage interesting, and think Scalia may have phrased that section on purpose to make that rhetorical point. Not meant to be a hijack as I’ve enjoyed your discussion of Halbig in other threads.
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### Author:  [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)
#### Post date: [June 1, 2015, 5:35pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/8 "2015-06-01T17:35:19Z")
> [@Channing\_Idaho\_Banks](#):
>
> They didn’t have to hire this woman and they didn’t have to give a reason why not. You would think they would know that by now.
Yeah, this never passes the smell test for me. I’ve failed to get a _lot_ of jobs, and nobody has ever told me why I didn’t get them.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 1, 2015, 5:47pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/9 "2015-06-01T17:47:01Z")
> [@John\_Mace](#):
>
> I don’t think so. You can’t be “not hired” because of your religion, but you also can’t be “not hired” because of your lack of religion, when a public accommodation is involved.
Well, the crux of this case is what happens when the public accommodation has to make an accommodation for the prospective employee. I can’t imagine any situation that might arise in which an atheist would have to request an employer accommodation based on her lack of faith. It’s not like my lack of faith compels me to eat more bacon such that I can demand bacon in a kosher cafeteria.
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### Author:  [@DrCube](https://boards.straightdope.com/u/DrCube)
#### Post date: [June 1, 2015, 5:51pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/10 "2015-06-01T17:51:32Z")
> [@Channing\_Idaho\_Banks](#):
>
> They didn’t have to hire this woman and they didn’t have to give a reason why not. You would think they would know that by now.
She _did_ get the job, because they liked her and thought she’d be good at it. _Then_ she showed up her first day wearing a head scarf…
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 1, 2015, 5:56pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/11 "2015-06-01T17:56:22Z")
No, she was never hired.
> [@Ethilrist](#):
>
> Yeah, this never passes the smell test for me. I’ve failed to get a _lot_ of jobs, and nobody has ever told me why I didn’t get them.
The facts aren’t laid out in detail in the SCOTUS opinion, but they are in the underlying 10th Circuit decision. The initial plaintiff, Elauf, had a friend (Sepahvand) who already worked at the store and the store manager told the friend, who told her, that it was because of the headscarf.
> [@](#):
>
> In responding to Ms. Elauf’s inquiry about wearing a headscarf, Ms. Sepahvand testified that she had raised the issue with assistant manager Kalen McJilton, who knew Ms. Elauf from her prior visits to the store. Noting that he had previously worked at Abercrombie with someone who wore a white yarmulke, Mr. McJilton suggested that he did not see any problem with Ms. Elauf wearing a headscarf, “especially if she didn’t wear a headscarf that was black.” Aplee. Supp. App. at 181 (Dep. of Farisa Sepahvand, taken Mar. 31, 2011) (internal quotation marks omitted). Ms. Sepahvand then communicated to Ms. Elauf that, although a headscarf would be permitted, because of Abercrombie’s no-black-clothing policy, she would not be able to wear a black one. Ms. Elauf seemed agreeable to that restriction. . .
>
> Ms. Cooke [assistant store manager] testified that Mr. Johnson [the district manager] told her to change Ms. Elauf’s interview score on the appearance section from a two to a one, thereby bringing her overall score down to a five and ensuring that she would not be recommended for hire. With this understanding, Ms. Cooke threw away the original interview sheet and changed Ms. Elauf’s score, thus implementing Mr. Johnson’s alleged instructions. Ms. Cooke did not extend a job offer to Ms. Elauf. A few days after the interview, Ms. Elauf learned from Ms. Sepahvand that she had not been hired because of her headscarf.
>
> EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1114 (10th Cir. 2013) [my explanatory notes.]
It doesn’t really matter anyway. Most of these cases arise because the plaintiff _assumes_ he/she has been discriminated against. Abercrombie’s staff were just unusually candid.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [June 1, 2015, 6:43pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/12 "2015-06-01T18:43:27Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> Well, the crux of this case is what happens when the public accommodation has to make an accommodation for the prospective employee. I can’t imagine any situation that might arise in which an atheist would have to request an employer accommodation based on her lack of faith. It’s not like my lack of faith compels me to eat more bacon such that I can demand bacon in a kosher cafeteria.
In my fast food joint, I require all employees to wear a uniform. The uniform has a cross on it. No one ever complained until this atheist guy made a big deal about it, and I fired him. I told him no atheist is working in my restaurant! I showed him, I did!
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [June 1, 2015, 6:50pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/13 "2015-06-01T18:50:21Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> Well, the crux of this case is what happens when the public accommodation has to make an accommodation for the prospective employee. I can’t imagine any situation that might arise in which an atheist would have to request an employer accommodation based on her lack of faith. It’s not like my lack of faith compels me to eat more bacon such that I can demand bacon in a kosher cafeteria.
What if your employee dress code mandates that all male employees be clean shaven.
A Muslim man says his beard is relevant to his religion and needs an accommodation (after all the [SCOTUS recently ruled a prisoner gets to keep his beard due to religious reasons](http://www.cnn.com/2015/01/20/politics/supreme-court-hands-down-prison-beard/)).
Seems the atheist guy is SOL if he wants a beard though.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 1, 2015, 7:11pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/14 "2015-06-01T19:11:42Z")
> [@John\_Mace](#):
>
> In my fast food joint, I require all employees to wear a uniform. The uniform has a cross on it. No one ever complained until this atheist guy made a big deal about it, and I fired him. I told him no atheist is working in my restaurant! I showed him, I did!
Okay, I suppose that one’s pretty obvious.
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### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 1, 2015, 7:14pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/15 "2015-06-01T19:14:02Z")
> [@John\_Mace](#):
>
> In my fast food joint, I require all employees to wear a uniform. The uniform has a cross on it. No one ever complained until this atheist guy made a big deal about it, and I fired him. I told him no atheist is working in my restaurant! I showed him, I did!
Which may be a Title VII violation if the atheist sincerely believed it was morally wrong to wear a cross, and believed that with the strength of traditional religious views. I know a few cases when such secular beliefs have been rejected as not having the strength of traditional religious views. Has such a claim ever prevailed?
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 1, 2015, 7:21pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/16 "2015-06-01T19:21:14Z")
Apparently, yes (though not in an employment context.)
> [@](#):
>
> Because petitioner has alleged facts from which it may be inferred that respondents violated his constitutional rights, petitioner will be granted leave to proceed on his claims that respondent Hepp violated his rights under the establishment clause by refusing to permit him to obtain and possess a silver circle as an emblem of his atheist beliefs; unidentified respondents violated his rights under the establishment clause by making Christian literature readily available to inmates while impeding prisoners’ access to atheist literature; respondents Nichols, Oliverson, Hepp, Karlen, Raemisch and unidentified prison staff members violated the establishment clause by prohibiting petitioner from receiving free nonreligious items and publications while permitting other inmates to receive free religious items and publications…
>
> Kaufman v. Frank, 2006 U.S. Dist. LEXIS 47840, \*2, 2006 WL 1982692 (W.D. Wis. July 13, 2006).
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### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 1, 2015, 7:24pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/17 "2015-06-01T19:24:28Z")
I mean, that’s an entirely different context altogether, isn’t it? That’s a government actor being subject to the Establishment Clause.
My question is: Although we know theoretically that someone can assert freedom of conscience claims under Title VII (at least the EEOC thinks so), has it been done successfully?
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [June 1, 2015, 7:28pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/18 "2015-06-01T19:28:58Z")
> [@Richard\_Parker](#):
>
> I mean, that’s an entirely different context altogether, isn’t it? That’s a government actor being subject to the Establishment Clause.
>
> My question is: Although we know theoretically that someone can assert freedom of conscience claims under Title VII (at least the EEOC thinks so), has it been done successfully?
Imagine that the claimant was **Der Trihs**. 🙂
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### Author:  [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)
#### Post date: [June 1, 2015, 7:37pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/19 "2015-06-01T19:37:55Z")
It has happened, [kinda](http://openjurist.org/509/f2d/140/young-v-southwestern-savings-and-loan-association):
> [@](#):
>
> In this case, Mrs. Young enjoyed her work and Southwestern valued her services. The only possible reason for her resignation on September 15, 1971, was her resolution not to attend religious services which were repugnant to her conscience, coupled with the certain knowledge from Bostain, her supervisor, that attendance at the staff meetings–in their entirety–was mandatory and the reasonable inference that if she would not perform this condition of her employment, she would be discharged. In these circumstances, when she could hope no longer that her absence at the meetings would not be noticed, she could reasonably infer that in one week, one month or two months, she would be discharged because of the conflict between her religious beliefs and company policy. Surely it would be too nice a distinction to say that Mrs. Young should have borne the considerable emotional discomfort of waiting to be fired instead of immediately terminating her association with Southwestern. This is precisely the situation in which the doctrine of constructive discharge applies, a case in which an employee involuntarily resigns in order to escape intolerable and illegal employment requirements.
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### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 1, 2015, 7:46pm UTC](https://boards.straightdope.com/t/eeoc-v-abercrombie-fitch-stores-inc/721344/20 "2015-06-01T19:46:06Z")
> [@Jimmy\_Chitwood](#):
>
> It has happened, [kinda](http://openjurist.org/509/f2d/140/young-v-southwestern-savings-and-loan-association):
Thanks. Notable, I think, that “Mrs. Young was a member of the Unitarian Church at all times relevant to this lawsuit,” and the Court repeatedly characterized her “religious beliefs” in objecting to the Baptist worship at work. But nevertheless the opinion does call her an atheist, so good enough for an example.
Follow-up question: Has the Court ever upheld an atheist’s Title VII claim objecting to a practice that is not explicitly religious? ISTM, that would show true parity, since of course most Title VII claims are objecting to policies that have nothing to do with religion, like A&F’s “Look Policy.”
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