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A Guy, A Girl, Their Headwear And The Law

Abercrombie & Fitch storefront, red brick facade
photo by Ryan McKnight

A guy wearing a red yarmulke walks into a bar and orders a glass of Yellow Tail shiraz.

The bartender says, “Sorry. We don’t serve your kind here.”

“What do you mean ‘my kind?’” the guy asks.

“People who wear red yarmulkes,” the bartender replies. “We’re going for an East Coast collegiate look among our clientele.”

The customer ponders for a minute, then says, “I insist you serve me. It would be a religious accommodation.”

“OK,” says the bartender, who promptly pours the guy a glass of Manischewitz.

Have we just witnessed a case of religious discrimination?

Not according to the 10th Circuit Court of Appeals. Under that court’s logic, the bartender had no way to know for sure that the guy was Jewish and, anyway, this happened to be a bar with a certain standard for its customers. When asked, the business is happy to accommodate the religious preferences of anyone who enters, though the bartender will correct orders accordingly.

This was the thinking on display with the 10th Circuit sided with Abercrombie & Fitch. A store in Tulsa, Oklahoma, declined to hire a young woman named Samantha Elauf despite a recommendation from her interviewer because she wore a headscarf to her interview. The chain cited its “look policy,” which at the time banned headgear, or “caps,” as “too informal for the image [they] project.” (The chain has since updated the policy.) Abercrombie held that if the applicant wanted a religious exemption, she had to proactively make the case at the time of the interview, even though she was never informed of the policy she would have needed accommodation for violating. The 10th Circuit evidently thought this stance was logical.

But the Supreme Court disagreed. And, with the not atypical exception of Justice Clarence Thomas, the Court got it right.

An American teenager wearing a hijab is probably wearing it for religious reasons, just as a young man wearing a yarmulke would be. If an establishment claims to accommodate the religious practices of its staff members, it should not need to be told that a hijab is worn as part of a religious practice. This should not be a controversial stance. In fact, it is hard to see how this case made it to the Supreme Court at all, since after the district manager in Tulsa directed the store manager to deny Elauf a job because of her presumed violation of the dress code, someone at corporate legal should have intervened and made things right.

As Justice Antonin Scalia said in announcing the decision in this case, “This is really easy.”

It would have been a more interesting case, and perhaps a closer one, if Abercrombie had argued that conforming to its mandatory dress code was an essential element of the job. This would require the company to make a supportable claim that its dress standard is an important element of success in the in-store sales job. In such situations it is permissible to discriminate. Meryl Streep is arguably the greatest film actress of our time, but a casting director can legitimately reject her for a role as a teenage ingenue.

But that is not the argument Abercrombie chose to make, possibly because the company didn’t feel it could back up a claim that a teenager wearing a hijab would be any less effective at selling today’s styles than one sporting a ponytail or a pixie cut. If this is the case, Abercrombie should have had the sense to realize its discrimination was as shaky a business proposition as it was a legal one.

Following oral arguments in the case, Elauf said, “Observance of my faith should not prevent me from getting a job.” The Court recognized, rightly, that Abercrombie had no legitimate counterargument.

Now American businesses are on notice. When a patron or a job applicant walks in wearing recognizable religious garb, it’s safest to presume that said garb is worn for religious reasons.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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