Abercrombie and Fitch (A&F) is no stranger to controversy surrounding their hiring practices in regard to religion and body composition. The latest case to be brought to the Supreme Court is due to alleged religious discrimination of A&F applicant, Samantha Elauf.
The plaintiff is a Muslim who believes that she was rejected for the position at their store because of the headscarf she wore to her interview, according to Fusion.
The company has already faced previous lawsuits similar to the current one. As a result, A&F was forced to change their hiring policy to accommodate garments worn for religious reasons.
It seems that the Court Justices were reluctantly amused by the interviewing process which they believed to be absurd:
Most incredulous was Justice Samuel Alito, who came up with the following scenario and asked what Abercrombie would do, according to the hearing’s transcript:
“Let’s say four people show up for a job interview at Abercrombie. And half — this is going to sound like a joke, but, you know, it’s not. (Laughter). So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit.
“Now, do you think the employer has to — that those people have to say, ‘We just want to tell you, we’re dressed this way for a religious reason? We’re not just trying to make a fashion statement?’”
Abercrombie’s attorney, Shay Dvoretzky, reminded the Justice that the scenario could actually happen, since the company conducts group interviews.
Dvoretzky further argued it should be obvious if someone’s headwear was intended for religious purposes, depending on the scenario.
Justice Alito revisited his point, making light of A&F’s hiring practices:
“So let’s say that somebody comes in for an interview and this person is…has the look, looks just like this mythical preppy (laughter) or somebody who came off the beach in California. Only one problem, the person is wearing a black blouse, which is against the Abercrombie rules.
Now, would Abercrombie fire that — or would not hire that — person on the assumption that this person likes black so much this person is going to wear black every single day?”
Justice Elana Kagan went further:
“Now, Mr. Dvoretzky, suppose an employer just doesn’t want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish and the employer doesn’t know he’s Jewish. No absolute certainty and certainly Mr. Goldberg doesn’t say anything about being Jewish, but the employer just operates on an assumption that he’s Jewish, so no, he doesn’t get the job.
Is that a violation? (Laughter). It doesn’t matter whether the employer knows it to an absolute certainty, right?”
In response to the questions posed, Dvoretzky admitted to the Justices that practices such as those would warrant as discrimination.
Based on the discrimination laws as written, Justice Kagan argued that it should not matter whether or not the hypothetical applicant is wearing a headscarf.
Kagan argued the fact that it is simple to assume the headscarf’s religious purpose due to the fact that most headscarfs are worn for that reason, and that it shouldn’t be any different than her hypothetical example.
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