The high court and the hi­jab

Los Angeles Times - - OPINION - He Supreme Court

Tthis week strength­ened an im­por­tant civil rights statute when it ruled in fa­vor of a Mus­lim teenager who was re­jected for a job be­cause she wore a head scarf. But be­yond its prac­ti­cal ef­fect, the 8-1 de­ci­sion of­fers a re­sound­ing re­minder that gen­er­ous ac­com­mo­da­tion of re­li­gious con­vic­tions — es­pe­cially those of ad­her­ents of a mi­nor­ity faith — is a noble Amer­i­can tra­di­tion.

The de­ci­sion was a victory for Sa­man­tha Elauf, who was 17 when she ap­plied for a po­si­tion at an Abercrombie & Fitch out­let in Tulsa, Okla. She was re­jected af­ter ap­pear­ing at an in­ter­view wear­ing a mod­i­fied black hi­jab that she re­gards as a “sym­bol of mod­esty in my Mus­lim faith.” The head cov­er­ing was viewed as in­com­pat­i­ble with the re­tailer’s “clas­sic East Coast col­le­giate” look.

Ti­tle VII of the Civil Rights Act pro­hibits an em­ployer from re­fus­ing to hire ap­pli­cants be­cause of re­li­gious prac­tices that the com­pany could ac­com­mo­date with­out un­due hard­ship. The is­sue be­fore the Supreme Court was whether Abercrombie & Fitch could be held li­able even though it didn’t know for cer­tain that Elauf ’s head cov­er­ing was a re­li­gious ob­ser­vance. (The manager who in­ter­viewed Elauf as­sumed she wore a scarf be­cause she was a Mus­lim, but she ap­par­ently never asked.)

Writ­ing for the court, Jus­tice An­tonin Scalia re­jected the com­pany’s con­tention that it should be faulted only if it had “ac­tual knowl­edge” that Elauf re­quired an ac­com­mo­da­tion. The law also can be vi­o­lated, Scalia said, if an em­ployer re­fuses to hire some- one be­cause of an “un­sub­stan­ti­ated sus­pi­cion that ac­com­mo­da­tion would be needed.”

This de­ci­sion was based on the Civil Rights Act, which, Scalia said, gives re­li­gious prac­tices “fa­vored treat­ment.” Such spe­cial pro­tec­tion for reli­gion isn’t unique to that statute. Ear­lier this year, the court re­lied on a dif­fer­ent fed­eral law to hold that a state pri­son had to al­low a Mus­lim in­mate to grow a half-inch beard for re­li­gious rea­sons — even though the pri­son banned beards for sup­posed se­cu­rity rea­sons.

The most sig­nif­i­cant ex­am­ple of a law ac­com­mo­dat­ing reli­gion is the 1993 Re­li­gious Free­dom Restora­tion Act, which al­lows a per­son to opt out of a gen­er­ally ap­pli­ca­ble law un­der some cir­cum­stances if obey­ing it would “sub­stan­tially bur­den” the ex­er­cise of reli­gion.

Sadly, public sup­port for that law and the larger prin­ci­ple of ac­com­mo­da­tion has been un­der­mined in re­cent years by un­wise ex­pan­sions of the con­cept to cover prof­it­mak­ing cor­po­ra­tions and to in­fringe on the rights of in­di­vid­u­als. Ex­am­ples of such over­reach­ing are the Supreme Court’s Hobby Lobby de­ci­sion ex­empt­ing some busi­nesses from in­clud­ing con­tra­cep­tive cov­er­age in em­ployee health in­sur­ance plans, and at­tempts at the state level to en­act “re­li­gious free­dom” laws that would al­low busi­nesses to dis­crim­i­nate against gays and les­bians.

The court’s rul­ing against Abercrombie & Fitch is a timely re­minder that in most cases, ac­com­mo­dat­ing re­li­gious prac­tice serves the in­ter­ests of both de­vout in­di­vid­u­als and a plu­ral­is­tic so­ci­ety.


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