Supremes grill Abercrombie on woman’s head scarf interview: ‘You have a problem with that?’

Will the Supreme Court side with a Muslim woman or uphold Abercrombie & Fitch’s east coast preppie look?

The Washington Post believes the high court will take the woman’s side, according to an article published Wednesday night.

At issue was the case of Samantha Elauf who was not hired because she wore a head scarf, which violated Abercrombie’s “Look Policy”, prohibiting caps and the color black, among other things.

EEOC attorney Eric Baxter is arguing Elauf’s case before the court.  He said “the court was clearly sympathetic to her dilemma,” and continued, “Abercrombie refused to hire her because she was true to her religious beliefs.”

Supreme Court justices grilled Abercrombie & Fitch attorney Shay Dvoretzky, with both conservative and liberal justices hurling zingers Dvoretzky’s way.

Zeroing in on the heart of the case—whether Abercrombie was required to ask if Elauf wore the head scarf for religious reasons, or was Elauf required to volunteer that information—Justice Sonia Sotomayor asked if the question would be as simple as asking “You have a problem with that?”

Interviewing job candidates is a minefield of dos and do-nots.  Employers are told to never ask questions about an applicant’s religion.  But this is exactly where the Supreme Court is leaning.

When should an interviewer ask about religion, and how do employers avoid accusations of stereotyping when they do ask?

Justice Elena Kagan summed up the conundrum:  “Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem?”

Justice Antonin Scalia brought a fresh perspective.  “You could avoid those hard questions…if you want to sue me for denying you a job for a religious reason, the burden is on you to say, ‘I’m wearing the head scarf for a religious reason, or I’m wearing the beard for a religious reason.’ ”

Elauf was awarded $20,000 in damages by a jury, which was reversed by the U.S. 10th Circuit Court of Appeals.  While Abercrombie has since changed its policy on head scarves, this ruling will affect how job interviews are conducted across the country.

The court should issue its decision on this case in June.  If they support the EEOC, prepare for some awkward conversations in job interviews as companies try to figure out how to navigate the hazardous waters of anti-discrimination law.

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Steve Berman


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