US boosts re­li­gious pro­tec­tions at work

The China Post - - WORLD BUSINESS - BY MARK SHER­MAN

The U. S. Supreme Court strength­ened civil rights pro­tec­tions Mon­day for em­ploy­ees and job ap­pli­cants who need spe­cial treat­ment in the work­place be­cause of their re­li­gious be­liefs.

The jus­tices sided with a Mus­lim woman who did not get hired af­ter she showed up to a job in­ter­view with cloth­ing re­tailer Abercrombie & Fitch wear­ing a black head­scarf.

The head­scarf, or hi­jab, vi­o­lated the com­pany’s strict dress code, since changed, for em­ploy­ees who work in its re­tail stores.

Em­ploy­ers gen­er­ally have to ac­com­mo­date job ap­pli­cants and em­ploy­ees with re­li­gious needs if the em­ployer at least has an idea that such ac­com­mo­da­tion is nec­es­sary, Jus­tice An­tonin Scalia said in his opin­ion for the court.

Job ap­pli­cant Sa­man­tha Elauf did not tell her in­ter­viewer she was Mus­lim. But Scalia said that Abercrombie “at least sus­pected” that Elauf wore a head­scarf for re­li­gious rea­sons. “That is enough,” Scalia said in an opin­ion for seven jus­tices.

Fed­eral civil rights l aw gives re­li­gious prac­tices “fa­vored treat­ment” that for­bids em­ploy­ers from fir­ing or not hir­ing peo­ple based on their ob­ser­vance of reli­gion, Scalia said. The fed­eral civil rights law known as Ti­tle VII re­quires em­ploy­ers to make ac­com­mo­da­tions for em­ploy­ees’ re­li­gious be­liefs in most in­stances. Elauf’s case turned on how em­ploy­ers are sup­posed to know when some­one has a re­li­gious need to be ac­com­mo­dated.

The de­ci­sion does not, by it­self, re­solve her case. In­stead, it will re­turn to the 10th U.S. Cir­cuit Court of Ap­peals in Den­ver, which ear­lier ruled against her.

“While the Supreme Court reversed the Tenth Cir­cuit de­ci­sion, it did not de­ter­mine that A&F dis­crim­i­nated against Ms. Elauf. We will de­ter­mine our next steps in the lit­i­ga­tion,” com­pany spokes­woman Car­lene Benz said in an email.

Some busi­ness groups said Mon­day’s rul­ing will force em­ploy­ers to make as­sump­tions about ap­pli­cants’ re­li­gious be­liefs.

“Shift­ing this bur­den to em­ploy- ers sets an un­clear and con­fus­ing stan­dard mak­ing busi­ness own­ers ex­tremely vul­ner­a­ble to in­evitable dis­crim­i­na­tion law­suits,” said Karen Harned, a top lawyer at the Na­tional Fed­er­a­tion of In­de­pen­dent Busi­ness. “Whether em­ploy­ers ask an ap­pli­cant about re­li­gious needs or not, there is a good chance they will be sued.”

Jenny Yang, chair­woman of the fed­eral Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion, praised the court for “af­firm­ing that em­ploy­ers may not make an ap­pli­cant’s re­li­gious prac­tice a fac­tor in em­ploy­ment de­ci­sions.” The EEOC had sued on Elauf’s be­half.

Elauf was 17 when she in­ter­viewed for a “model” po­si­tion, as the com­pany calls its sales staff, at an Abercrombie Kids store in a shop­ping mall in Tulsa, Ok­la­homa, in 2008. She im­pressed the as­sis­tant store manager with whom she met. But her ap­pli­ca­tion fal­tered over her head­scarf be­cause it con­flicted with the com­pany’s Look Pol­icy, a code de­rived from Abercrombie’s fo­cus on what it calls East Coast col­le­giate or preppy style.

Abercrombie has since changed its pol­icy on head­scarves and has set­tled sim­i­lar law­suits else­where.

Af­ter the EEOC filed suit, a jury even­tu­ally awarded Elauf US$20,000.

But the ap­peals court threw out the award and con­cluded that Abercrombie & Fitch could not be held li­able be­cause Elauf never asked the com­pany to re­lax its pol­icy against head­scarves.

AP

In this Feb. 25 file photo, Sa­man­tha Elauf stands out­side the Supreme Court in Wash­ing­ton. The Supreme Court ruled Mon­day for a Mus­lim woman who did not get hired af­ter she showed up to a job in­ter­view with cloth­ing re­tailer Abercrombie & Fitch wear­ing a black head­scarf. The jus­tices said that em­ploy­ers gen­er­ally have to ac­com­mo­date job ap­pli­cants and em­ploy­ees with re­li­gious needs if the em­ployer at least has an idea that such ac­com­mo­da­tion is nec­es­sary.

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