US high court backs Muslim woman denied job at Abercrombie because of headscarf

Muslim woman Samantha Elauf (right), who was denied a sales job at an Abercrombie Kids store in Tulsa in 2008, stands with her mother Majda outside the US Supreme Court in Washington, in this February 25 file photo. -- PHOTO: REUTERS
Muslim woman Samantha Elauf (right), who was denied a sales job at an Abercrombie Kids store in Tulsa in 2008, stands with her mother Majda outside the US Supreme Court in Washington, in this February 25 file photo. -- PHOTO: REUTERS

WASHINGTON (AFP) - The US Supreme Court ruled Monday in favour of a Muslim woman who claimed she was denied a sales job with fashion retailers Abercrombie & Fitch as a teen because of her headscarf.

By an 8-1 vote, the high court sided with the Equal Employment Opportunity Commission (EEOC), a federal government agency that sued Abercrombie on behalf of Samantha Elauf, on the grounds she was discriminated against because of the firm's dress code.

The court, in an opinion written by Justice Antonin Scalia, said Elauf only needed to show that her need for an accommodation was a motivating factor in the employer's decision.

"An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions," the decision read.

Attorneys arguing Elauf's case said she was protected by the 1964 Civil Rights Act, which bars anyone from being refused employment based on their religion, unless the employer cannot accommodate the person's religious beliefs without adversely affecting business.

Abercrombie argued that Elauf did not specifically request an exemption from the company's dress code on religious grounds.

"Here, the employer at least suspected that the practice was a religious one," Scalia said. "Its refusal to hire was therefore motivated by the desire to avoid accommodating that practice; and that is enough."

The clothing company is known for populating its stores with sales staff in somewhat racy attire.

Its salespeople are required to conform to "Abercrombie style". defined as a "classic East Coast collegiate style". The company does not allow employees to wear "caps" of any kind or the colour black, but scarves are not explicitly forbidden.

Any departure from the dress code is regarded as grounds for disciplinary action, including dismissal, on the basis that it can negatively impact the company's image, brand and sales.

But in April, with the winds seeming to change in Elauf's case, the company announced plans to overhaul its image, making it less sexualised and more diverse.

It also discarded its approach of referring internally to store associates as "models" and calling them instead "brand representatives". The government and numerous religious organizations have taken up the cause of the Muslim woman, who was 17 at the time of her 2008 job interview.

"This case dramatically changes the standards that apply to employers because it removes the requirement that an employee or applicant request a religious accommodation, if the employer's motive is later deemed a violation," said Michael Droke of the law firm Dorsey & Whitney.

"The Abercrombie decision calls into question common provisions in many employee handbooks. Employers should immediately review their handbooks and policy manuals to determine those issues which could cause discrimination."

Elauf was awarded US$20,000 in damages at an earlier hearing before the case was dismissed on appeal.