Hijab: US Supreme Court rules for a Muslim woman

On June 01, the US Supreme Court ruled in favour of Samantha Elauf in an employment discrimination case filed by her against a clothing company, Abercrombie & Fitch, an US northeast-based store commonly known to focus on East Coast preppy look. This particular look also is known as the "classic East Coast collegiate style."
Seventeen-year-old Samantha Elauf had interviewed for a position at an Abercrombie kids store in a shopping mall in Tulsa, Oklahoma, in 2008. Her application weakened over headscarf because there was a conflict which was not evident to Samantha. It had to do with the company's "Look Policy." She did well in her interview, and the store manager was impressed by her. In the end, the store refused to hire her because she wears a hijab (headscarf).
In its Supreme Court brief in the case, the company argued that job applicants should not be allowed "to remain silent and to assume that the employer recognises the religious motivations behind their fashion decisions."
According to an article in the Huffington Post, the Supreme Court decided, in Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch Stores, that "Samantha Elauf was not required to make a specific request for a religious accommodation to wear a hijab."
The store policy against hijab made headlines all over the US when the case was taken up by the Supreme Court. Hijab was seldom an issue in the US before 9/11/2001. Educated Islamic women scholars lectured in the Boston Islamic Centre as a matter of course before this date. Everything changed after 9/11.The discrimination, sometimes not so subtle, exacerbated in conservative New England, where many of the prep schools are located. This sentiment has now spread all across America in full force. The Abercrombie store policy ignited more outrage at a time when insolences against the Muslims are running high in the US.
With hijab, a woman's face is not covered; however, it is not a cool fashion statement to the Abercrombie management. A hijab-wearing woman is perfectly capable of doing her work in a store and dealing with the customers. It by no means interferes with job performance. The judges saw that as well, before making the ruling.
"This is really easy," Justice Antonin Scalia said in announcing the decision from the bench. "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."
EEOC was pleased with the ruling, and argued that the case was, at its core, about religious freedom and tolerance. In an increasingly diverse society such as the US, it requires courage and tenacity, as demonstrated by Ms. Elauf, to pursue this matter to the highest court of the land. The government (EEOC) was all too eager to help.
Ms. Elauf had been awarded $20,000 by a jury. However, the Court of Appeals overturned the award. "Ms. Elauf never informed Abercrombie before its hiring decision that she wore her head scarf, or 'hijab,' for religious reasons," Judge Jerome A. Holmes wrote for the appeals court.
It turned out that Samantha Elauf is a typical all-American girl despite her choice to cover her head with a headpiece. At the trial, Ms. Elauf said she loved movies, shopping, sushi and the mall. "It's like my second home," she said, referring to the shopping mall.
She testified that her experience with Abercrombie & Fitch made her feel "disrespected because of my religious beliefs." She said, "I was born in the United States, and I thought I was the same as everyone else."
Justice Samuel A. Alito Jr. voted with the majority to reverse the appeals court's decision, but he did not agree with the majority's reasoning. "I would hold," he wrote, "that an employer cannot be held liable for taking an adverse action because of an employee's religious practice unless the employer knows that the employee engages in the practice for a religious reason." He wrote that in the Elauf case there was "ample evidence" that "Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a religious reason."
In difference, Justice Clarence Thomas wrote that "the company's dress code was a neutral policy that could not be the basis for a discrimination lawsuit." I fail to see Justice Thomas' point.
As a practising Muslim woman from Bangladesh, I do not wear a hijab. I also passionately believe whether a woman should cover her head or not, is her personal choice. I am not obligated to follow an orthodox interpretation of religious scholars about how women should dress. Religion demands Muslim women to wear "appropriate clothing". I don't believe by choosing not to cover my head with a headscarf, falls under impropriety. As a woman, I have the right to determine how I should appear in public.
I usually do not participate in the emotional warfare in discussing the hijab issue unless it is a fair discussion. Many these days wear hijab as a religious statement and some wear it as a fashion statement.
As a means of purdah, my mother and grandmother always covered their heads with their sari's anchal and I believe, with our Bengali dress code, it looks perfect. Some of them wore burqah, but never hijab. Most Bangladeshi women, including the Prime Minister, cover their heads with sari instead of donning a foreign object such as hijab. But if a woman chooses to wear a hijab, I am not against it. It should be her preference and others should refrain from giving harsh judgements for someone's personal choices and unsolicited opinion in the matter.
It's been noted that Abercrombie has been sued at least two other times over headscarves -once by an applicant who, like Elauf, said she was denied a job because of her hijab, and once by an employee who lost her job after being ordered to remove her hijab. Abercrombie settled both of those cases, and then changed its policy (to allow for headscarves.) It is unclear to me why it continued to defend its actions in the Elauf case.
Civil Rights law requires that employers accommodate workers' religious beliefs in the workplace. The company argued that it couldn't have known to make such an accommodation because Elauf had never demanded one. This is just a cover story. We all know too well that because of religious and cultural differences Muslim women in the US and Europe face discrimination by employers in recruiting and hiring practices. A research done at Bristol University's School of Sociology, Politics and International Studies showed that 18 per cent of Muslim women are unemployed with 9.0 per cent of Hindu women and the unemployment rate for white women remains at 4.0 per cent who have similar language skills and education.
The majority of justices didn't buy the arguments that the Abercrombie's lawyers presented, and for good reason. The court reversed an earlier appeals ruling in Abercrombie's favour. Whether or not Abercrombie had firm knowledge of Elauf's need for an accommodation was not relevant. It was enough to suspect that her headscarf was a "motivating factor" in their decision not to hire her. The Abercrombie manager had correctly presumed that Elauf was a Muslim, and like a conservative young Muslim woman, she would regularly wear the hijab on the job.
"Motive and knowledge are separate concepts," Justice Antonin Scalia wrote. Any employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
Abercrombie noted that the Supreme Court ruling did not find that the company discriminated against Elauf. The company is considering its next steps in the case. It says it is committed to "an open-minded and tolerant workplace environment." The company says it now has a new dress code that allows associates to be more individualistic. It changed store associates' title from 'Model' to 'Brand Representative.' It remains to be seen whether these are more than cosmetic changes.
Would this ruling pressure companies to ask or make assumptions about job seekers' religious beliefs? Employers aren't supposed to inquire about a worker's religion in the first place. EEOC said that a job applicant like Elauf shouldn't have to bear the full burden of religious accommodation. The employer should know best whether there may be a conflict with company policy.
Justice Samuel Alito had raised a hypothetical situation that, by his own admission, sounded "like a joke."
"So the first is a Sikh man wearing a turban. The second is a Hasidic man wearing a hat. The third is a Muslim woman wearing a niqab. The fourth is a Catholic nun in a habit," Alito said. "Now, do you think ... that those people have to say, 'We just want to tell you, we're dressed this way for a religious reason? We're not just trying to make a fashion statement'?"
There are ways for an employer to address the issue without directly asking a job applicant about his or her religion. In the hypothetical case of someone who wears a long beard, he asked, "Why can't the employers just simply say, 'We have a "look policy" that doesn't permit beards. Can you comply with that policy?'"
The ruling sends Elauf's case back to the lower court for further consideration.
The writer is a freelancer.
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