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Supreme Court weighs how religious freedom affects business dress codes

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  • GWEN IFILL:

    Now we turn to the Supreme Court, where the justices today heard the case of a woman who went to a job interview wearing a head scarf, and didn't get the job, but why? At the heart of the case, business rights vs. religious freedom.

    As always, NewsHour contributor Marcia Coyle of "The National Law Journal" was in the court today.

    How did this case get to the Supreme Court, Marcia?

    MARCIA COYLE, "The National Law Journal": OK.

    Well, Gwen, Title VII is our nation's major job bias law, and it prohibits discrimination on the basis of race. It actually makes it an unlawful employment practice for an employer to fail to reasonably accommodate religious beliefs or practices, unless that would create an undue hardship on the business itself.

    A lower federal appellate court here ruled that Abercrombie & Fitch wasn't liable under Title VII when it failed to hire Samantha Elauf, who is Muslim and wears a head scarf, a hijab, because the appellate court said, an employer can only be liable if the employer receives direct notice from the job applicant or the employee that there is a need for a religious accommodation.

    The Equal Employment Opportunity Commission brought the appeal to the Supreme Court challenging that rule, and that was the case that the court heard today.

  • GWEN IFILL:

    In this case, Abercrombie & Fitch, which kind of caters to the youth market and has a certain look…

  • MARCIA COYLE:

    Yes.

  • GWEN IFILL:

    … said that her hijab, or the way she was dressed for this job interview didn't match their look that they wanted their employees to have. Did they say at any point that it was because of religion?

  • MARCIA COYLE:

    No, Abercrombie & Fitch's lawyer today said that the so-called look policy is a religion-neutral policy, and that she wasn't hired just because her hijab would violate the look policy.

    The arguments were very spirited today. And I would say that the Abercrombie & Fitch's counsel really bore the brunt of the questioning. It seemed as though more than a majority of justices were skeptical of that argument — of the company's argument.

  • GWEN IFILL:

    For example?

  • MARCIA COYLE:

    Well, here's the real problem.

    The government believes that the burden should be on the employer, because the employer here — to take the first step in a job interview, because the employer has superior knowledge, knows the work rules. And if the employer senses, perceives, understands or knows that there could be a religious issue, the employer should just bring it up and start what Congress intended, a dialogue with the job applicant, to see if there was a religious issue, and is there a need for an accommodation?

    Otherwise, if you put the burden on the employee or job applicant, as the lower court here did, they're reluctant to bring religion up in a job interview.

  • GWEN IFILL:

    Right.

  • MARCIA COYLE:

    An employer can remain silent, perhaps knowing there's a religious issue, discriminate, and escape liability.

  • GWEN IFILL:

    Even Justice Alito, who usually comes down in favor of business in these kinds of cases, was among the skeptical ones today.

  • MARCIA COYLE:

    He was. And he's actually very concerned about religious discrimination in general, and he said — he really simplified this and said, look, why can't an employer just say — for one of the hypotheticals, you have somebody wearing a beard in front of you, why can't an employer just say during the interview, we have a work policy that excludes beards? Do you have a problem with that?

  • GWEN IFILL:

    Yes.

  • MARCIA COYLE:

    It doesn't draw religion into it right away. But it gives — then the onus shifts to the job applicant to say if he or she does have a problem with it.

  • GWEN IFILL:

    I have a very quick question for you, which is, we have had a couple of other religious freedom cases before the court, whether it's the Hobby Lobby case, whether they have the right to hire people — to give abortion benefits, or whether it was the — you mentioned the beard, a Muslim prisoner who had a beard.

  • MARCIA COYLE:

    Yes. Yes.

  • GWEN IFILL:

    Is this similar or different?

  • MARCIA COYLE:

    Well, it's different because it falls under a particular statute that does make it illegal to fail to reasonably accommodate religious beliefs.

    But the court — I mean, the law is very clear, and the court, even under the First Amendment and religious freedom, is quite protective of those freedoms. This is an important case. Business is watching it closely, too, because it believes that if it loses here, it's going to be forced into stereotyping people who apply for jobs in order to avoid liability.

  • GWEN IFILL:

    Well, that's what we're going to talk about right now.

    Thank you, Marcia Coyle, for this, as always.

  • MARCIA COYLE:

    My pleasure, Gwen.

  • GWEN IFILL:

    For more on the two sides of the argument, we turn to Munia Jabbar, a civil rights attorney, formerly of the Council on American-Islamic Relations, and Rae Vann, who is an attorney with the Equal Employment Advisory Council.

    Munia Jabbar, what is an employer's responsibility, in your opinion, in this case?

  • MUNIA JABBAR, Civil Rights Attorney:

    An employer's responsibility is not to bury their head in the stand when they are on notice that a potential employee will need a reasonable accommodation from them to work for them.

    So, for example, in this case, there were supervisors, employees who recognized the young woman's head scarf as a hijab, and that a hijab is a religious garment. Instead of engaging in a dialogue with her at all, or asking her, do you think you're going to have any problems doing this job, here is our look policy, they basically decided to avoid the issue altogether and not to extend her a job offer, even though otherwise she seemed to be a good candidate.

  • GWEN IFILL:

    And, Rae Vann, in your opinion what is an employee's or an applicant's responsibility in a case like this?

  • RAE VANN, Equal Employment Advisory Council:

    Well, the applicant in this context has an obligation to put the employer on notice of his or her sincerely held religious belief.

    It would be very problematic, as a practical matter, to impose an obligation on employers, under a broad rule, the type of rule that the EEOC is proposing here, that the employer delve into, try to divine an applicant's religious beliefs based merely on how he or she presents him or herself at the interview.

  • GWEN IFILL:

    Well, let me ask you this, Rae Vann. If an applicant was wearing a yarmulke, is that something the employer or the employee should have to mention, if for some reason the employee policy doesn't allow for head gear?

  • RAE VANN:

    I think it's very dangerous to get into the business of requiring an employer to engage in that conversation.

    The cases like the yarmulke, like the example that Justice Alito provided in court today about the applicant who appears in a nun's habit, those are not necessarily difficult questions. The more difficult case comes when you have someone, for instance, who appears for a job interview covered with tattoos and is applying for a front-of-the-house position.

    The employer doesn't wish to hire that person because that is not the image that it wishes to project in that particular position. Under the EEOC's formulation, the employer would have an obligation to inquire of that person, inquire as to whether or not the display of tattoos is based on a sincerely held religious belief.

  • GWEN IFILL:

    Well, let me ask Munia Jabbar about that.

    Are we talking about discrimination? Or are we talking about religious freedom? Or does the tattoo example hold up?

  • MUNIA JABBAR:

    I think the tattoo example can easily be dealt with, because if an employer is not concerned about the person's religion, but is instead concerned about the person's ability to do the job, I would think that the employer would just ask the job candidate, look, I have noticed you have some tattoos, here is our look policy, or these are our policies with respect to front-of-the-house or public interaction jobs. Would you have a problem complying with this in some way?

    And that could surface the discussion.

  • GWEN IFILL:

    Well, let me ask you another thing. Here's a — is it possible, or conceivable, that someone could be — appear for any reason in a head scarf and not be religious at all, and it not be a religious item at all?

  • MUNIA JABBAR:

    It's possible, but, again, I think that what would happen in that case is that the employer would ask, well, you know, again, here is our policy. I notice you are wearing a scarf. Would you have a problem complying with the policy for any reason?

    And the other thing is that I think that it's naive to think that employers at this point aren't savvy enough to be able to identify the most common hallmarks of religious grooming. For example, some studies have shown that the general American public, over 90 percent, can recognize a hijab head scarf and how it often looks, covering the hair and the neck, when it is worn.

    So I think that even if the applicant doesn't give verbal notice, the employer will often still be on notice, because they're going to see the scarf, and they're going to recognize it.

  • GWEN IFILL:

    Rae Vann, why don't you reply, respond to that?

  • RAE VANN:

    That may well be the case with respect to the yarmulke or even perhaps a hijab or a nun's habit, but that does not hold water when you talk about body piercings, tattoos, facial hair, hair length.

    Those are all personal styles that can be attributed to or be the result of a sincerely held religious belief, or they could be symbols of a style, a style that an individual seeks to display. So, I think that, again, it's a complex issue, but we shouldn't lose sight of the fact that this is not about Abercrombie & Fitch not wanting to provide workplace reasonable accommodations to applicants or employees or any employer wanting to do that.

    It is what triggers the obligation to engage in the discussion. And we believe that there are numerous practical difficulties associated with requiring employers across the board to simply engage in the discussion based on some assumption or belief.

  • GWEN IFILL:

    We will see how the Supreme Court rules.

    Munia Jabbar, civil rights attorney, and Rae Vann of the Equal Employment Advisory Council, thank you both very much.

  • RAE VANN:

    Thank you.

  • MUNIA JABBAR:

    Thank you.

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