In a Case of Religious Dress, US Justices Explore the Obligations of Employers – NYTimes.com

US Supreme Court hearings on religious accommodation (the Abercrombie & Fitch case):

Justice Samuel A. Alito Jr. on Wednesday warned that “this is going to sound like a joke,” and then posed an unusual question about four hypothetical job applicants. If a Sikh man wears a turban, a Hasidic man wears a hat, a Muslim woman wears a hijab and a Catholic nun wears a habit, must employers recognize that their garb connotes faith — or should they assume, Justice Alito asked, that it is “a fashion statement”?

The question arose in a vigorous Supreme Court argument that explored religious stereotypes, employment discrimination and the symbolism of the Muslim head scarf known as the hijab, all arising from a 2008 encounter at Woodland Hills Mall in Tulsa, Okla.

Samantha Elauf, then 17, sought a job in a children’s clothing store owned by Abercrombie & Fitch. She wore a black head scarf but did not say why.

The company declined to hire her, saying her scarf clashed with the company’s dress code, which called for a “classic East Coast collegiate style.” The desired look, Justice Alito said, was that of “the mythical preppy.”

…In response to Justice Alito’s question about the four hypothetical applicants, Shay Dvoretzky, a lawyer for the company, conceded that some kinds of religious dress presented harder questions, but he said the court should require applicants to raise the issue of religious accommodations.

Several justices suggested that an employer should simply describe its dress code and ask if it posed a problem. That would shift the burden to the applicant, they said. If the applicant then raised a religious objection, the employer would be required to offer an accommodation so long as it did not place an undue burden on the business.

That approach, Mr. Dvoretzky said, would itself require stereotyping.

But Justice Elena Kagan said that the approach was the lesser of two evils. On the one hand, it could require an “awkward conversation,” she said. “But the alternative to that rule is a rule where Abercrombie just gets to say, ‘We’re going to stereotype people and prevent them from getting jobs.’ ”

Justice Ruth Bader Ginsburg added that Ms. Elauf had not even known that her hijab was a problem.

“How could she ask for something when she didn’t know the employer had such a rule?” Justice Ginsburg said.

In a Case of Religious Dress, Justices Explore the Obligations of Employers – NYTimes.com.

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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