The world was busy watching a grown man masquerade as a debutante and two more additions to the Republican Presidential field. As per usual, the United States Supreme Court struck while the distraction was hot, ruling on a religious discrimination case from 2008.
Referred to as simply “the Muslim head-scarf case,” it was a lawsuit filed by the Equal Employment Opportunity Commission on behalf of Muslim woman Samantha Elauf. In 2008, when she was 17, Elauf applied for a job at Abercrombie Kids in Tulsa, OK. They chose not to hire her, stating that her head scarf was not in compliance with the sales staff’s “look policy.”
In the suit, the EEOC claimed that Elauf was the victim of intentional discrimination because Abercrombie refused to hire her and simply make an exception to the look policy that would allow her to wear her head scarf on the sales floor.
Justice Scalia wrote in the 8-1 decision,
An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions… Suppose that an employer thinks that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII of the Civil Rights Act.
The problem with this seems obvious: what if the business in question is hiring specifically to fill a need for additional employees on Saturdays due to increased weekend business? The Supreme Court now says that such a business cannot consider the potential employee’s complete lack of availability on that day if said lack of availability is brought about by a religious practice.
The problem as it regards this particular case seems equally obvious: Abercrombie, it can be argued, does not simply sell clothing. Abercrombie sells a style, a look. A cheesy overdone hipster look, to be sure, but a look all the same. And the Supreme Court has essentially just told the business that they cannot consider when hiring whether or not a potential employee will promote or distract from the look they desire to sell.
Justice Clarence Thomas proved to be the lone voice of reason, stating that because the “look policy” applies to all employees – Muslim or not - the argument for “intentional discrimination” was absurd.
Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: mere application of a neutral policy cannot constitute ‘intentional discrimination.’
You and me both, Justice Thomas. You and me both.