As a teenager applying for a job at The Gap, I wore my yarmulke to the interview. There were no questions about my head covering, and I got the job. I can’t imagine the kippah violated a store dress code (though I don’t think I checked before applying), and I had a tendency to wear black knitted kippot which, atop a head of dark brown hair, were probably barely noticeable. But of course, it doesn’t feel that way to the person wearing the religious head covering in an environment in which no one else does (in this case, a clothing store), especially to a self-conscious teen. Which is to say that what happened to a Muslim teenager named Samantha Elauf would almost certainly never happen to me in the same situation. And what happened to Samantha Elauf appears to be blatant religious discrimination.
Elauf’s case is before the Supreme Court, which heard oral arguments on the issue last week. The story is this, neatly explained by the Atlantic: When Elauf was 17, she applied for a job at an Abercrombie Kids shop in Tulsa, Oklahoma. She wore her headscarf to the interview. The hiring manager understood the headscarf violated the company’s dress policy, but realizing that it was probably religious, she asked the district manager if an exception could be made. The answer was no; Elauf was turned down.
It was unjust, and it probably was a bit mortifying for teenager seeking to blend in, or at least attain a measure of acceptance, in a mainstream American clothing store. And the Equal Employment Opportunity Commission thought it was illegal, and filed a discrimination suit. After all, employment law requires religious accommodation unless it will create “undue hardship” on the business. But it’s apparently not so simple.
In what sounds like a parody of a Talmudic dispute, the case is before the Supreme Court because, according to the Atlantic, “the Tenth Circuit Court of Appeals ruled that correctly assuming that Elauf’s headscarf was religious is not the same as actually knowing her headscarf was religious.”
Over at SCOTUSblog, Amy Howe explains how the Supreme Court justices, during oral arguments, got tripped up by the fact that Elauf did not ask for a religious exemption; it was clear she needed some exemption, and the reason for it was assumed, and she was denied the exemption. Thus did the justices dive down the rabbit hole over the very meaning of knowledge:
Justice Antonin Scalia was, to put it mildly, dubious about how “straightforward” the government’s test actually is. He pressed Gershengorn to explain the difference between “knowing” something and “correctly understanding” it; when Gershengorn tried to elaborate, Scalia told him that “that doesn’t make any sense to me.”
And although Justice Anthony Kennedy suggested that there was “substantial force” to the government’s argument that an applicant doesn’t have to take the initiative to mention the religious practice to a would-be employer, he emphasized that the government’s reliance on the word “understand” rather than “know” was “confusing.
Even Justice Elena Kagan – whose vote we would expect the government to need to prevail – expressed some skepticism about how the government’s rule would apply. If an employer doesn’t have to be certain that a job applicant’s practice derives from her religion, she asked, what level of confidence does it need? Would it be enough for an employer to be two-thirds certain that a potential conflict with its work rules is the result of the applicant’s religious practices? What about fifty-percent certainty, she queried?
Justices Sotomayor and Alito broached similar versions of a compromise, in which the employer would mention a rule and ask if the applicant could abide, something like: “We have a no-head covering rule. Could you comply?”
And that could work–for headscarves. Or beards, another one of the possibilities offered by the justices. Howe says several justices, “perhaps enough to form a majority,” sounded like they approved of the compromise. But there are two obvious problems with it that the Court really ought not ignore.
The first is scope: According to Howe, Scalia asked a question along the lines of: “what if an applicant could comply, but it would make her uncomfortable?” Maybe he’s talking about modesty, which would certainly force the employer to wade into various scriptural interpretations.
A more pressing problem is Chief Justice Roberts’s objection: such a rule would not “cover anything that’s not readily apparent.” The other justices didn’t seem to be so bothered by this, but I think it’s a fatal flaw in the compromise. You could argue, I suppose, that if you don’t notice it then it’s probably not a violation of a dress code. But that might also depend on the store.
It seems to me common sense needs to play a role here. If a manager guesses correctly that certain garb is religious, we don’t need to split hairs over whether they actually “know.” What happened here in this case is that a manager took a look at teenage girl wearing a headscarf, understood it was because she was a devout Muslim, and denied her the job because of it.
The Atlantic quotes an attorney for the district manager as paraphrasing his argument this way: “if we allow this then someone will paint themselves green and call it a religion.” I don’t know if anything sums up the current trend in the culture wars better than employers worrying that making accommodations will lead to lots and lots of religious freedom.
And the slippery slope argument fails here just as it did in the Hobby Lobby case, in which the Court ruled that the government could not force the company’s owners to pay for contraceptives and abortifacients to which they had religious objections. Although the standard there was slightly different, the truth is in this case there is no blanket religious protection: if it causes “undue hardship” to the company, the exemption can be denied.
Maybe the green man of the attorney’s construction would hurt the business, maybe not. But Elauf’s adherence to her religious practice was apparent and would not have wrecked the company’s bottom line. It was rank religious discrimination, and no quibbling over degrees of certainty can change that.
