The Supreme Court hears oral arguments Wednesday about whether a teenager was discriminated against by clothing retailer Abercrombie & Fitch seven years ago, when a local store manager in Tulsa, Oklahoma did not hire the teen for a job after she showed up to her interview wearing a head dress.
Abercrombie never asked about the then-17-year-old girl’s religious affiliation. She is Muslim. The teen did not discuss her religion, either, but also never asked the company to accommodate her wearing a head dress should she be hired.
At the time, Abercrombie had a policy of banning its retail workers from wearing any head coverings, namely hats. Since then, the company has altered its policy to allow for religious exemptions.
When the hiring manager informed a supervisor of the applicant’s head dress, and said she guessed that it was worn for religious reasons, the supervisor cited the head covering ban and the teen was not hired.
“The applicant never said, I need a religious accommodation,” says Jonathan Segal, a partner at Duane Morris, where he specializes in employment law, among other areas.
When Abercrombie didn’t hire the applicant, it was relying on established practice that someone has to volunteer their religious affiliation first and ask a company to accommodate them, says Segal.
“The key is whether the applicant needs to say it, or whether the employer has constructive knowledge,” says Segal, clarifying that constructive knowledge means whether Abercrombie should have known that the applicant’s head scarf was for religious purposes – just as a yarmulke is often worn by those of the Jewish faith.
Michael Delikat, who heads the labor law practice at Orrick, Herrington & Sutcliffe, says that notion complicates the job interview process.
“If Abercrombie is to lose, it definitely puts employers in a more perilous position,” says Delikat, because employers will have to walk a fine line: avoid asking employees about religion but also shouldering a greater burden to avoid any potential discrimination that may occur from observable characteristics.