In an 8-to-1 decision today, the Supreme Court ruled that Abercrombie & Fitch violated the 1964 Civil Rights Act when it refused to hire a Muslim teenager who wears a black hijab.
Samantha Elauf was 17 years old when she applied for a sales position at Abercrombie Kids in Tulsa, Oklahoma, in 2008. She impressed the company—but was in violation of Abercrombie’s so-called Look Policy, which prohibited headgear (which it vaguely referred to as “caps”) as well as the color black. The Equal Employment Opportunity Commission, a federal law enforcement agency, filed a suit on Elauf’s behalf, which resulted in a jury awarding her $20,000. But an appeals court overturned that decision because Elauf didn’t ask Abercrombie to change its policy.
The 1964 Civil Rights Act protects “prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship.” The question before the court hinged on whether Abercrombie was compelled to provide Elauf accommodation, even when she specifically didn’t ask for it.
In a decision delivered by Antonin Scalia, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision” to not hire her. Justices John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Scalia. Samuel Alito concurred with the majority decision, but wrote his own opinion. Clarence Thomas dissented, in part, holding “that Abercrombie’s conduct did not constitute ‘intentional discrimination,’” concluding that he sides with the appeals court’s decision in favor of the clothing chain.