By Dillon Thompson
What are your religious beliefs? Most job interviews do not include questions like this. That’s because it’s typically considered rude and forward to question someone on his or her faith, especially during a formal setting like a professional interview. But what if that question is the difference between discrimination and parity?
Inequality still exists in many forms in America. It is an unfortunate, unavoidable fact that United States citizens are often treated inconsistently based on differences in race, sexuality, or gender. The nation is improving, however, as public awareness of racial discrimination seems to continue to progress, and same-sex marriage is now legal in 37 states. However, with all of the more publicized debates over inequality, it is sometimes easy to forget about a freedom that is guaranteed by the First Amendment of the Constitution yet is still infringed upon today. A recent Supreme Court case is bringing to light the sad truth that religious discrimination still certainly exists, and that it will continue to exist until major misunderstandings about religious liberties fall out of the public consciousness.
The case began with Samantha Elauf, a 17-year-old girl from Oklahoma who excelled and impressed the assistant manager of a local Abercrombie store during a job interview. But it was not how Elauf’s interview went that is raising so much controversy, because the young girl was rated highly in all three categories evaluated by the store in considering a hiring. Within assistant manager Heather Cooke’s recommendation to her district manager saying that the teenager should be hired, it was also noted that Elauf wore a black hijab during the conversation. Ultimately, the Oklahoma teen didn’t get the job, as the wearing of any sort of hats while working violates the retailer’s “Look Policy.” During the interview, Elauf never mentioned why she wore the hijab, and Cooke never asked, although she did note in her report to her district manager that she believed it was for religious reasons. Upon hearing of this controversy, the Equal Employment Opportunity Commission brought forth a suit against Abercrombie.
After the 10th District Court of Appeals reversed an initial federal court ruling in favor of Samantha Elauf, the case found its way onto the Supreme Court docket under the name “EEOC v. Abercrombie & Fitch Stores.” Formal arguments were heard on Wednesday, Feb. 25, and a decision is expected sometime in June. As is sometimes the case in Supreme Court proceedings, many of the justices’ questions during the arguments seem to have hinted at which way they are leaning. Justices Elena Kagan and Samuel Alito in particular were especially aggressive in their questioning of Abercrombie’s lawyer Shay Dvoretzky, indicating a potential leaning in favor of Elauf and the EEOC. In a particularly ruthless attack on Abercrombie’s policy, Justice Kagan boiled down the case’s central questions into two choices. In her mind, either Abercrombie managers have to feel uncomfortable when asking about a potential employee’s religious practices, or the company is allowed to blatantly discriminate against individuals based on assumptions about their beliefs. The justice then asked the chamber which of the two alternatives sounded worse.
The religious affiliations of the United States Supreme Court itself have long been a subject of analysis, as have other demographic debates such as race and gender. The court, made of entirely Roman Catholic and Jewish justices, is often criticized for not being representative of the American population. However, in this instance the court was able to compensate for its lack of heterogeneity, with a majority of the justices seemingly leaning in favor of Elauf.
Abercrombie simply did not have a good answer to the court’s questions either. The clothing company’s responses to criticisms of its “Look Policy” displays a worrying confusion regarding what religious freedom really is. The business claims that it should be the responsibility of the interviewee, not the interviewer, to bring up any sort of religious restrictions that may conflict with company policy, as Abercrombie has no way of knowing if a hat serves a religious purpose or not. However, Elauf didn’t even know that the policy existed. Multiple justices recommended during oral arguments that it should be Abercrombie’s job to bring up any potential policy conflicts, even if this is just in the form of a broad question about headwear that doesn’t explicitly mention religion.
Regardless of who should or shouldn’t have brought up the hijab, Abercrombie’s actions are implicitly discriminatory. By assuming that Elauf would be wearing the headscarf at work every day just because she wore it to the interview, the company is clearly acknowledging its belief that the hijab served a religious purpose. If the business truly didn’t know whether or not they were dealing with religious headwear, then they wouldn’t have just assumed that Elauf would wear the hijab to work every day.
Despite this evidence that Abercrombie’s actions were likely discriminatory, Dvoretzky held that the company’s policy doesn’t violate religious freedoms because it simply bans the wearing of caps by all employees, regardless of their beliefs. If it is against the rules to wear a hat no matter your religion, Abercrombie holds, how then are the rules discriminatory?
Unfortunately, arguments like these are why America simply can’t shake off continued religious discrimination. It isn’t about whether or not the laws are universal in nature, but rather about whether or not they accommodate for the practices of different faiths. This concept is the subject of the 1993 Religious Freedoms Restoration Act, which holds that any law cannot burden religious practices even if the laws that do so apply to everyone. The act has since been deemed unconstitutional in its application to local and state governments, but the freedoms protected by the law have been retained at the national level and by the numerous states which have adopted similar laws. Either Abercrombie was simply using the best available legal defense, or the company truly misunderstands its Constitutional requirement to accommodate the many religions that exist in the United States today. In either case, the teen outfitters’ position represents a fundamental misunderstanding of how the Constitution defends the free exercise of religion. Until it is understood that the laws must work around religious beliefs and not the other way around, discrimination on the basis of religion simply isn’t going away.
