The Supreme Court will hear the case about Abercrombie & Fitch's rejection of a sales person who wore a headscarf for religious reasons.

The Muslim woman, Samantha Elauf, who wore a headscarf in her interview, was not hired. 

The company has changed its dress code since then, but it's fighting this case on the ground that it didn't deny her a religious accommodation because she didn't ask for a religious accommodation. That is, it had a dress code that applied to everyone, and she violated it, so she was treated like anyone else who fails to comply with the dress code, not subjected to discrimination based on religion.

If she'd asked for an accommodation based on religion, the company would have had to make some conscious decision about whether an exception to the usual rule could be made. Without having been given that chance, the company argues, there's no discrimination, the company says. The EEOC, which brought the case on behalf of Elauf, doesn't want the burden to bring up religion to rest entirely on the employee. The 10th U.S. Circuit Court of Appeals sided with Abercrombie.

[T]he EEOC says Elauf never requested an accommodation because she didn't know about the "look policy." The agency also claims that Abercrombie was clearly on notice that Elauf needed to wear the headscarf for religious reasons, or else it wouldn't have denied her a job.

Abercrombie's lawyers say the law is clear that an employer must have actual knowledge that a religious conflict exists before any accommodation is offered. The company argues that job applicants "are not permitted to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions."

It's not surprising that a job applicant wouldn't want to bring up religious needs during the hiring process, and it's hard to see how the employer is supposed to be expected to bring up something that might have to do with religion. If the EEOC is saying the company should see itself as "on notice" of the need to wear religious garb, that seems to conflict with other things we might want the employer to do, like not bring up religion in a job interview. How proactively religion-conscious do you want employers to be?

ADDED: Here's the PDF of the 10th Circuit opinion (EEOC). I'll extract some highlights:

The company refers to its salespeople as "models" and expects them to exemplify the brand, which it describes as "a classic East Coast collegiate style of clothing" and "preppy" and "casual." The models aren't allowed to wear black, and they can't wear "caps." "Abercrombie expends a great deal of effort to ensure that its target customers receive a holistically brand-based, sensory experience," the court wrote, quoting one of the depositions:

"Abercrombie has made a name because of the brand. It’s a fact that you walk into an environment, and it’s not just the smell or the sound, it’s the way the merchandise is set up. It’s the lighting. Most of all, it’s the stylish clothing...."

Abercrombie claims to hire its "models" to represent this brand, to inform them of the "Look Policy," and not to ask applicants about religion.

If a question arises during the interview regarding application of the Look Policy, or if a prospective employee requests a deviation from the policy (for example, based on an inflexible religious practice), the store manager is instructed to contact Abercrombie’s corporate human resources department (“HR”), or his or her direct supervisor. HR managers may grant accommodations if doing so would not harm the brand.

There's a question in the case about whether Elauf's wearing of the scarf is genuinely religious or simply a form of personal or cultural expression. Even among Muslims, according to the court, citing the EEOC's expert, some think it's not required but choose to wear it "to demonstrate a personal rejection of certain aspects of Western-style dress."

AND: Elauf, according to the court, had a friend who worked for Abercrombie who had told her that there was a Jewish employee who wore a yarmulke — a white one. The friend thought the headscarf therefore wouldn't be a problem — as long as it's not black. Oddly enough, Elauf went to the interview in a black hijab.

The woman who conducted the interview went to her superiors to ask about whether the scarf would be a problem, particularly the black scarf. She testified in her deposition that her district manager advised her to lower Elauf's interview score so she would not qualify for the job. So the interviewer lowered the appearance score from 2 out of 3 to 1. Elauf's friend told her she wasn't hired because of the headscarf.

MORE: The district court granted the EEOC a summary judgment in this case, saying that "it is undisputed that Elauf wore her head scarf at the interview with assistant store manager Heather Cooke, and Cooke knew she wore the head scarf based on her religious belief," and that it didn't matter what Cooke actually said to the district manager (who contradicted her testimony), "because the knowledge of Cooke—who had responsibility for hiring decisions at the Abercrombie Kids store—is attributable to Abercrombie." There was also no issue about any "bilateral, interactive process of accommodation," because Elauf never was told that the headscarf was the problem.

The 10th Circuit said that not only was the district court wrong to grant the summary judgment to the EEOC, but Abercrombie was entitled to a summary judgment simply because it was undisputed that Elauf had never asked for a religious accommodation.

The 10th Circuit looked at the language in the EEOC Compliance Manual, which requires accommodation when there is "a conflict between religion and work" and interpreted it to apply only where the employee has an "inflexible" belief that something is "required" by his or her religion. I question whether that's a good interpretation. There are some religious needs that are serious and could easily be accommodated where there's not any sense of inflexible requirement. (And wearing a headscarf is probably one of these things.)

And I think the 10th Circuit really goes wrong when it looks at other cases where the person is already an employee. It's one thing to say that an employee should come forward and ask for an accommodation and give the employer a chance to figure out how to handle that, but it's quite another thing to allow an employer to reject a candidate specifically because of what it perceives as a need for a religious accommodation and to leave that candidate with no recourse.

rejected because she didn't meet the "look policy," when she showed up for work in the hijab (which she'd worn during the job interview).

CORRECTION: In the original version of this post, I said that Elauf was hired, then fired when she showed up for work in the hijab. That was wrong. Elauf was never hired.