The U.S. Supreme Court heard oral arguments last month in a case relating to dress codes, employment, and religion. The case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., is a good point of departure for how these things relate to each other in a free society. The High Court is expected to decide the case in the spring or early summer.
The case stems from an incident back in 2008. Samantha Elauf, a practicing Muslim teenager, applied for a Model position at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. (“Model” is the company’s word for sales-floor employees.) She wore a black hijab (a Muslim headscarf) to her job interview with the assistant manager, Ms. Cooke. A job offer was not extended to Ms. Elauf. A few days after the interview, she learned from a friend who worked at the store that she had not been hired because of her headscarf.
Abercrombie has a strict dress code for its employees. According to the decision of a U.S. Court of Appeals,
Abercrombie requires employees in its stores to comply with a “Look Policy.” That policy is intended to promote and showcase the Abercrombie brand, which “exemplifies a classic East Coast collegiate style of clothing.”
To Abercrombie, a Model who violates the Look Policy by wearing inconsistent clothing “inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand.”
Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. Notably, the policy prohibits employees from wearing black clothing and “caps.”
Abercrombie contends that its Look Policy is critical to the health and vitality of its “preppy” and “casual” brand.
Elauf complained to the Equal Employment Opportunity Commission (EEOC), which filed a lawsuit against Abercrombie on September 17, 2009, alleging violations of Title VII of the Civil Rights Act of 1964, on the grounds that Abercrombie “refused to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her religious beliefs by making an exception to the Look Policy.” The EEOC sought injunctive relief, back pay, and damages. The jury in the U.S. District Court for the Northern District of Oklahoma case awarded the EEOC $20,000 in compensatory damages.
Title VII of the Civil Rights Act states that “it shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
Furthermore, “the term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
On appeal, the U.S. Court of Appeals for the Tenth Circuit in Denver, on October 1, 2013, reversed the decision of the district court and sided with Abercrombie.
But why?
Well, obviously the appeals court considered the decision of the district court to be wrong.
But why?
Were the three judges on the U.S. Court of Appeals for the Tenth Circuit concerned about property rights, freedom of association, government overreach, or the free society?
Not at all.
The Court basically ruled “that Abercrombie could not be held liable for violating anti-discrimination laws because it did not know, and Elauf had not told it, that she was wearing a headscarf for religious reasons.”
According to the decision of the appeals court,
During the course of the interview, Ms. Elauf never informed Ms. Cooke that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie’s clothing policy.
And “after offering a description of the dress requirements, Ms. Cooke asked Ms. Elauf at the end of the interview if she had any questions. Ms. Elauf did not ask any.”
The decision of the appeals court was itself appealed and on October 2, 2014, the U.S. Supreme Court agreed to hear the case.
So, as Court reporter Lyle Denniston wrote about the oral argument,
Through much complexity, their opposing positions seemed to boil down to this: the government lawyer thought the employer should have the legal duty to spell out its policy so that the job applicant knows what is expected. The store’s lawyer thought the employer should not guess at religion, and so the job applicant should have to tell it that she needed an accommodation for her religion.
In a free society, not only would a case like EEOC v. Abercrombie never be heard by the Supreme Court, no such case would ever be tried in any state or federal court. But that’s not all.
In a free society, it would be solely at the discretion of corporations, companies, businesses, and employers generally whether or not they would be willing to provide a religious accommodation for dress codes or anything else.
In a free society, employers could institute any dress code of their choosing for employees.
In a free society, businesses could institute any dress code of their choosing for patrons.
In a free society, employers could require or prohibit any cultural, ethnic, religious, or political jewelry or attire.
In a free society, no one would be entitled to a particular job even if he is qualified for it.
In a free society, religion would not be treated as something exceptional, different, or special.
In a free society, there would be no right to know why one was not hired for a particular job.
In a free society, the Equal Employment Opportunity Commission would not exist.
In a free society, employers would be entirely free to question potential employees not only about their religion, but also about their sexual orientation, national origin, marital status, or political affiliation.
In a free society, religious discrimination in favor of or against an employee or potential employee would be perfectly legal.
In a free society, businesses would have the absolute right to refuse entrance, service, or employment to anyone not only on the basis of dress, but also because of hairstyle, tattoos, scars, facial hair, appearance, height, weight, gender, age, or disability.
In a free society, employers would not be forced to treat their employees wearing a hijab, yarmulke, scarf, or turban any differently from those wearing a Yankees ball cap.
In a free society, the government would not interfere in any way with the employer-employee relationship.
It all comes down to the question of property. It is property owners — residence owners and business owners — who establish the rules and requirements for entry, employment, service, interaction, transactions, and activity, not the government.