{"id":6323,"date":"2015-10-01T00:00:00","date_gmt":"2015-10-01T00:00:00","guid":{"rendered":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2015\/10\/01\/if-the-cap-fits\/"},"modified":"2015-10-01T00:00:00","modified_gmt":"2015-10-01T00:00:00","slug":"if-the-cap-fits","status":"publish","type":"post","link":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2015\/10\/01\/if-the-cap-fits\/","title":{"rendered":"If the Cap Fits"},"content":{"rendered":"

A Sikh wearing a turban, a Hasidic Jew wearing a hat, a Muslim wearing a hijab, and a Catholic nun in a habit
\nwalk into an Abercrombie & Fitch interview: not the beginning of a cringe-worthy joke but rather a hypothetical by Supreme Court Justice Samuel Alito
\nto Abercrombie\u2019s lawyer. The context was oral argument in the first religious accommodation case the Supreme Court has heard since 1986:\tEEOC v. Abercrombie & Fitch<\/em>.<\/p>\n

\n\tIn mid-2008 17-year-old Samantha Elauf applied for a sales job at an Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. As a practicing
\n\tMuslim she had worn a hijab since she was 13, feeling it was a sign of modesty. She wore the headscarf to the interview, but nothing was said about it.<\/p>\n

\n\tThe hiring manager, per Abercrombie\u2019s policy, evaluated her on various criteria, giving her a score high enough to hire her. However, the manager, not
\n\tknowing if wearing the hijab violated company policy, asked her manager about it. That manager didn\u2019t know; so she asked the district manager. The district
\n\tmanager decreed that a headscarf was similar to a baseball cap and therefore banned. He told the hiring manager to \u201clower her score.\u201d Samantha wasn\u2019t
\n\thired.<\/p>\n

\n\tMost of the time when someone doesn\u2019t get a job he or she never finds out why. However, Samantha\u2019s interview had gone so well that she had been more or
\n\tless told to expect a call telling her she was hired. When that call never came, she inquired about why she hadn\u2019t been hired; and that is when she was
\n\ttold it was because of the headscarf.<\/p>\n

\n\tEven at 17 Samantha knew that wasn\u2019t right. She contacted the Equal Employment Opportunity Commission, the federal agency responsible for enforcing the
\n\tcountry\u2019s workplace nondiscrimination laws. After investigating Samantha\u2019s claim, the EEOC brought suit against Abercrombie for religious discrimination.
\n\tThe EEOC prevailed, and a jury awarded Samantha $20,000.<\/p>\n

\n\tHowever, Abercrombie appealed and won on appeal. The reason? Samantha had not specifically told Abercrombie during the interview that wearing a headscarf
\n\twas a religious practice and that she would need an accommodation to be exempted from the no \u201ccaps\u201d policy.<\/p>\n

\n\tThere was a reason she had not asked for an accommodation: she hadn\u2019t known she needed one. Of course, she wasn\u2019t alone in her ignorance—the hiring manager
\n\therself hadn\u2019t known the policy on headgear and had to go through two levels of management to get the answer. Despite this, the appellate court said
\n\tSamantha should have raised the issue during the interview.<\/p>\n

\n\tEven though Samantha had not specifically said her headscarf was part of her faith, Abercrombie was not exactly caught unaware. The hiring manager
\n\ttestified she assumed Samantha was Muslim and that was why she was wearing the headscarf. When the hiring manager told all of this to the district manager,
\n\tit was only then that the district manager ordered her score lowered.<\/p>\n

\n\tDespite this, the appellate court said Abercrombie lacked \u201cactual knowledge\u201d; because Samantha didn\u2019t tell Abercrombie that she was wearing the hijab for a
\n\treligious purpose. The fact that Abercrombie accurately assumed she was Muslim was of no consequence to the court.<\/p>\n

\n\tThis is a curious standard to hold a plaintiff to in a civil case. This type of \u201cactual knowledge\u201d is not required anywhere else. In fact, in the criminal
\n\tcontext (which is supposed to have a higher standard than civil cases) people have been put in jail for a long time based on less evidence than the court
\n\twas requiring of a 17-year-old.<\/p>\n

\n\tA colleague of mine had a case a few years ago involving a convenience store manger. The manager had found willing buyers of Sudafed by the case at twice
\n\tits retail price. She didn\u2019t even have to put it out on the shelf; they would just go to the stockroom and pick up the cases themselves. She never asked
\n\twhy they wanted so much decongestant, and they never told her.<\/p>\n

\n\tBut when it turned out that these guys were using the Sudafed to make methamphetamine, this lack of \u201cactual knowledge\u201d didn\u2019t stop the police from
\n\tarresting her or her being convicted and sentenced to jail for close to 10 years. The appellate court said that the facts of the case gave a jury
\n\tsufficient basis to convict her. But under the ruling of the court of appeals, it was easier to send someone to jail than to hold a large corporation
\n\taccountable for religious discrimination.<\/p>\n

\n\tThe rationale the court of appeals used was that companies are not supposed to make assumptions about their employees\u2019 religion. That is normally true, but
\n\tthe appellate court turned this general proposition and twisted it to say that holding Abercrombie accountable would mean all employers would have to start
\n\tmaking assumptions about employee religious beliefs and practices. According to the court of appeals\u2019 perverted logic, letting Abercrombie off the hook was
\n\tactually a blow for greater workplace equality, because now employers wouldn\u2019t be making assumptions.<\/p>\n

\n\tWhat is twisted about this logic is that Abercrombie had made an (accurate) assumption about Samantha and acted on that assumption. Had the interviewer
\n\tthought that Samantha was wearing a headscarf because she was having a bad-hair day the hiring manager would have just figured that Samantha would comply
\n\twith the rule when informed. It was precisely because Abercrombie thought it was religious that it assumed (again accurately) that Samantha would need an
\n\taccommodation. It was the desire to avoid accommodating her that motivated the district manager to order her score lowered so that she was not hired.<\/p>\n

\n\tWhile we are warned about what happens when we make assumptions, it turns out that we have to make decisions all the time on less-than-perfect knowledge.
\n\tIf a woman comes in wearing a nun\u2019s habit, she could be on her way to a costume party. But if it\u2019s 10:00 a.m. and it\u2019s a Christian bookstore, no one is
\n\tgoing to think the clerk bigoted if she greets the habit-wearing woman with \u201cSister.\u201d<\/p>\n

\n\tIronically, this commonsense approach to religious dress is one that at least one of Abercrombie\u2019s lawyers understood and availed himself of. When the case
\n\twas argued at the U.S Supreme Court, an Abercrombie lawyer was wearing a dark-colored, round piece of cloth affixed to his head. Like most courts, it is
\n\tagainst the court rules for men to wear coverings at the Supreme Court, unless it is for a religious reason.<\/p>\n

\n\tPresumably none of the Court\u2019s marshals had \u201cactual knowledge\u201d of Yaakov Roth\u2019s religious belief, yet no one asked him to remove his head covering. This
\n\twas not some oversight by Court personnel. I know from personal experience that the Supreme Court marshals are neither unobservant nor shy about enforcing
\n\tthe rules. Once while attending oral argument I violated the (unknown to me) rule against resting your arm on the empty seat beside you. I quickly received
\n\ta polite tap on the shoulder.<\/p>\n

\n\tNo civil rights violation occurred when the marshals assumed that the Yamaka-looking piece of cloth was in fact a Yamaka and its wearer was Jewish. In
\n\tfact, had Mr. Roth been approached and asked to remove his head covering, that person would be thought at best to be clueless and at worst bigoted.<\/p>\n

\n\tFortunately, the Supreme Court\u2019s marshal service is not the only part of the Court with some common sense. The justices had little difficulty in rejecting
\n\tAbercrombie\u2019s arguments. In an 8-1 decision the Supreme Court found in favor of the EEOC and Samantha and against Abercrombie & Fitch.<\/p>\n

\n\tJustice Antonin Scalia wrote that the law prohibits employers from making decisions that are motivated by an employee\u2019s religious practice, regardless of
\n\twhether it is confirmed. In fact, the Court pointed out that rather than having an \u201cactual knowledge\u201d standard the law has no knowledge requirement. The
\n\tlower court had read into the statute a word that didn\u2019t exist: knowledge.<\/p>\n

\n\tThis does not mean that employers are going to be caught off guard and sandbagged by religious employees. Employees still need to let the employer know
\n\tabout the need for an accommodation when the employee knows they need one. What the Court said was employers can\u2019t screen out religious applicants with
\n\twillful ignorance or some heightened knowledge standard otherwise unknown in the law.<\/p>\n

\n\tThe decision in EEOC v. Abercrombie<\/em> was important for another reason as well. Abercrombie had also argued that because it evenly applied a general
\n\twork rule, it could not be held liable. According to Abercrombie, in order to be liable Samantha had to claim that Abercrombie let other people wear head
\n\tcoverings but not her. In other words, she had to prove she had been treated differently.<\/p>\n

\n\tOnce again Abercrombie misrepresented what the law requires when it comes to religious accommodation. Accommodation means not that a person is treated the
\n\tsame, but rather that that person receives some form of different treatment. If the normal rules didn\u2019t create a conflict, then there would be nothing to
\n\taccommodate. Justice Scalia said as much when he said that religious practices receive not equal treatment but \u201cfavored treatment.\u201d<\/p>\n

\n\tSome people, including some people of faith, objected to this \u201cfavored treatment\u201d Samantha was asking for. They felt that Abercrombie should be able to run
\n\tits stores as it sees fit and that if it wants to ban headscarves, that is its right, regardless of Samantha\u2019s faith.<\/p>\n

\n\tIt is important to understand that that was not the issue before the Court. Employers\u2019 obligation to accommodate religion is not unlimited—in fact it is
\n\tminimal (de minimis,<\/em> according to the Supreme Court). Abercrombie was not arguing that the imposition on its business was such that it couldn\u2019t
\n\taccommodate her. In fact, by the time the case got the Supreme Court, Abercrombie had changed its policy, allowing religious headwear. Rather, Abercrombie
\n\twas arguing that Samantha wasn\u2019t protected by the law because she hadn\u2019t uttered the magic words needed to invoke it. This was a legal principle that if
\n\tadopted would have been disastrous for people of faith.<\/p>\n

\n\tThe importance of this case was demonstrated by the wide range of amicus curiae (friend of the court) briefs filed in support of Samantha. The brief
\n\tdrafted by the Seventh-day Adventist Church had 15 different religious and civil rights groups on it. Jews, Muslims, Sikhs, and Christians all joined
\n\ttogether to get behind the protection of religion in the workplace. Despite profound theological and ideological difference, all these groups could agree
\n\ton one thing: religion is deserving of protection.<\/p>\n

\n\tSamantha\u2019s case set an important precedent for all people of faith in the United States. As a religiously pluralistic society we must make room for all
\n\tAmericans to participate fully in society, and that means not having to chose between one\u2019s faith and a job. Samantha Elauf helped protect all people of
\n\tfaith from being forced to make that choice.<\/p>\n","protected":false},"excerpt":{"rendered":"

A Sikh wearing a turban, a Hasidic Jew wearing a hat, a Muslim wearing a hijab, and a Catholic nun in a habit walk into an Abercrombie & Fitch interview: not the beginning of a cringe-worthy joke but rather a hypothetical by Supreme Court Justice Samuel Alito to Abercrombie\u2019s lawyer. The context was oral argument in<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[308],"tags":[140],"class_list":["post-6323","post","type-post","status-publish","format-standard","hentry","category-september-october-2015","tag-september-october-2015"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6323","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6323"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6323\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6323"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6323"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6323"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}