This was the question posed to the SCOTUS at yesterday's oral argument in the case of EEOC v Abercrombie & Fitch. The case involves the intersection of fashion, commerce and the freedom of religious expression under the First Amendment.

The case involves a Muslim woman, Samantha Elauf, who applied to an A&F store in Tulsa, Oklahoma 7-years ago when she was a teenager.  Although she fared well in her interview, she was not hired because of the store's no head-wear dress code.

The offending garment was the applicant's hijab. A&F fosters the "Ivy League preppie look" thus, there is no room for a hijab, caps, scarfs, or headwear of any kind.

The EEOC, along with the Council on American-Islamic Relations, took up Elauf's case and won a jury verdict of $20,000 in damages for Ms. Elauf.  A&F successfully appealed to the 10th Circuit Court of Appeals, which reversed the jury verdict, persuaded as it was by A&F's argument that the applicant did not specifically request special religious accommodation for her hijab.

Yesterday, it was oral argument at the SCOTUS with a decision expected in June. The justices exposed the appellate lawyers on both sides to rigorous questions.

Much of the argument was based on the mechanics and standards involved in addressing an applicant's private religious beliefs within the context of the employment application process.  The Justices debated among themselves about how this "awkward" conversation between employer and applicant is supposed to take place:

Employer: "So, do you plan to wear your hijab to work everyday?"

Applicant: "Well, yes actually, it is required in my religion." 

So what is a store like A&F to do when it sees an assortment of applicants, some with perhaps more stringent religious practices than others? Does our religious freedom trump a store's reasonable policies for employee dress code?

If similar recent SCOTUS decisions are to guide us, then we must take note of the unanimous decision in Holt v Hobbs (2015) which held that a Muslim prison inmate could grow his beard for religious reasons despite the prison policy of no facial hair.  That case, however, is not on all fours with this one to the extent that the offending policy in Holt was a government policy; this case involves private commerce without any government policy.

We predict that this case will result in a 5-4 decision, possibly a plurality with most of the Justices writing separately, that favors the store owner's well-reasoned employment policies.    

www.clarkstonlegal.com
info@clarkstonlegal.com