The hijab controversy

The US Supreme Court on Monday the 15 of June, 2015, ruled in favour of a Muslim woman who sued for discrimination after being denied a sales job at age 17 at an Abercrombie & Fitch Co. clothing store in Oklahoma because she wore a head scarf for religious reasons.

The decision marked a victory for the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that sued the company on Elauf’s behalf after she was turned down in 2008 at an Abercrombie Kids store in Tulsa. Elauf initially won a $20,000 judgment against Abercrombie before a federal district court. The 10th U.S. Circuit Court of Appeals in Denver then threw that out, ruling in favour of Abercrombie, before the high court backed Elauf.

The case involving a young Muslim woman alleging workplace discrimination in the American heartland was decided by the top U.S. court at a time when some Western nations are struggling with culture clashes relating to accommodating Muslim populations. The United States has not, however, faced the same tensions as some European countries including France.

While the court does not have to give its wider philosophical reasoning to decide any question that is pending before it, the fact remains that by deciding such questions or of this nature, the decision by the jurisprudence evolved on such matters does confer a pre-emption right of a constitutional kind on any other would be petitioner. The Muslims are generally most happy at this decision since it comes at a very crucial time in current history of the world. An important factor was the “welcome” to this historic ruling in defense of religious freedom at a time when the American Muslim community is facing increased levels of Islamophobia,” said the national executive director of the Council on American-Islamic Relations. But it must be pointed out that the petitioner’s side was visibly pleased at the US government’s decision to support its cause in the open court process. Indeed the petitioner Elauf said in a statement issued by the EEOC: “Observance of my faith should not have prevented me from getting a job. I am glad that I stood up for my rights, and happy that the EEOC was there for me and took my complaint to the courts.”

A word about history is most relevant at this stage. I must also point out that Monday’s ruling was the second decision by the US Supreme court during its current term in this year in favour of a Muslim alleging discrimination. In January, the US Supreme Court also concluded that an Arkansas policy prohibiting inmates from having beards violated the religious rights of a prisoner who had wanted to grow one in accordance with his Muslim beliefs. The court has in fact, it seems fairly clear to me, recently taken an expansive interpretation of religious rights. Last year, for instance, it sided with a Christian-owned company that objected on religious grounds to providing health insurance coverage for birth control for women.

After losing this most crucial test in the court process, the losing side led by Abercrombie said in a statement that the case will continue, noting in particular that the justices had not ruled that “discrimination” in law took place. “We will determine our next steps in the litigation,” Abercrombie said. The Supreme Court had to decide as Abercrombie maintained whether the real petitioner Elauf was required to ask for a “religious accommodation” to allow her to wear the scarf in order for the company to be sued under the 1964 Civil Rights Act, which among other things bans employment discrimination based on religious beliefs and practices.

This point that is now being made by Abercrombie is essentially based on this factual consideration alone that despite wearing the head-scarf, she did not specifically say that, as a Muslim, she wanted the company to give her a religious accommodation. But I must also quickly point out that this seems like a public relations exercise since having lost the case, that practically ended their real challenges. However as I see it the point was really before the court as in an opinion by Justice Antonio Scalia, the court said Elauf only had to show that her need for an accommodation was a motivating factor in Abercrombie’s decision not to hire her, which was in fact successfully done by her.

Justice Clarence Thomas was the sole dissenter. He said that “mere application of a neutral policy” should not be viewed as discrimination. Impliedly relying on this opinion, Abercrombie said that in April it replaced that policy with “a new dress code that allows associates to be more individualistic” while also changing their hiring practices so “attractiveness” is no longer a factor.

It would be of interest to also mention that Muslim groups participating in this huge decision had said in court papers in support of Elauf that employment discrimination against Muslims is widespread in the United States. Often, the act of a woman wearing a head-scarf triggers the discrimination, they maintained. But I it may be may be mentioned by me here at the end of this column that the EEOC maintained in the court that Muslims file more employment claims on the basis of discrimination and the failure to provide religious accommodations than any other religious group.

Before concluding this piece I must also point that from within the US many other minorities also filed their briefs; the major ones being the groups representing the Christians, Jews and Sikhs had also filed court papers backing the petitioner, Elauf. Opposed to grouping to be seen in the court it may be of interest to mention that Abercrombie had the backing of important business groups including the U.S. Chamber of Commerce.

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.

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