On June 1st, The Supreme Court issued an opinion in the case Equal Employment Opportunity Commission v. Abrecrombie & Fitch Stores, Inc; an employment discrimination lawsuit in which Abercrombie refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy.

The case started in 2008 when Ms. Elauf applied for a job in a child’s clothing store owned by Abrecrombie & Fitch at Woodland Hills Mall in Tulsa, Okla. She wore a black head scarf but did not say why.

The company refused to hire her on the ground that her scarf violated the company’s “Look Policy,” or dress code.

The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964. The Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s religion.” 42 U.S.C. 2000e-2(a)(l). “Religion” includes “all aspects of religious observance and practice” unless “an employer demonstrates that he is unable to reasonably accommodate” a religious observance or practice “without undue hardship on the conduct of the employer’s business.” 42 U.S.C. 2000e(j).

The company’s allegation was that it was not aware that Ms. Elauf wore the headscarf because of religious reasons and that the company’s dress code is a neutral policy.
Ms. Elauf was awarded $20,000 by a jury in District Court, but the United States Court of Appeals for the 10th Circuit, in Denver, overturned the award, stating that Abercrombie didn’t reject Ms. Elauf’s application on the ground of her religious affiliations because she never informed Abercrombie before its hiring decision that she wore her head scarf, or ‘hijab,’ for religious reasons.”
The question presented to the Supreme Court was whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.
Justice Scalia, writing for seven justices, said Ms. Elauf did not have to make a specific request for a religious accommodation to obtain relief under Title VII. “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.” Justice Scalia added “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
The company, he said, at least suspected that the applicant, Samantha Elauf, wore the head scarf for religious reasons. The company’s decision not to hire her, Justice Scalia said, was motivated by a desire to avoid accommodating her religious practice. That was enough, he concluded, to allow her to sue under a federal employment discrimination law.
Religious freedom played a large role in the founding of the United States of America and continues to be one of the Americas’ key tenets. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Laws governing religious freedom and equality in the United States, however, go beyond these First Amendment prohibitions
Title VII of the Civil Rights Act of 1964 is one such attempt by Congress to reinforce religious rights by forbidding employers from discriminating against their employees or prospective employees on the basis of religion. This statue extends the First Amendment’s protections of religious minorities by prohibiting private employers from discriminating against their employees and applicants on the basis of religion.
Since 2010, the Equal Employment Opportunity Commission has filed 68 lawsuits involving claims of religious discrimination under Title VII of the Civil Rights Act of 1964. Those lawsuits have involved workers in all segments and sectors of the workforce – e.g., in healthcare, social services, hospitality, retail, energy, and food/beverage service, among others.
Violations have involved a variety of fact patterns, including

•  Refusing to hire or firing religious workers after learning their religion;
•  Discharging workers who take leave for religious-related events (such as observing the Sabbath);
• Failing to accommodate religious-related garb choices;
• Retaliating against employees who requested a reasonable accommodation or complained about religious discrimination.

If you believe that you have been discriminated due to your religion beliefs, please contact Swartz Swidler at 856-685-7420 today to speak to one of our New Jersey employment attorneys. There is no cost for the consultation, and we typically accept cases on a contingent basis, meaning there is no upfront cost to you, and we only get paid if we obtain a recovery in your favor.