What the Supreme Court Headscarf Ruling Means for Small Biz

Date: June 04, 2015

The ruling against Abercrombie & Fitch could mean more legal problems for your business.

The Supreme Court ruled in an 8-1 decision on Monday that employers can be held liable for refusing to hire an applicant based on a religious observation or practice—even if the applicant does not say he or she needs a special accommodation. The ruling “will compel companies large and small to brush up on the nuances of bias and do more to accommodate employees’ religious beliefs,” according to Bloomberg.

The decision stems from a Tulsa, Oklahoma Abercrombie & Fitch that didn’t hire Samantha Elauf in 2008 in part because she didn’t comply with the company’s dress code for her interview. Elauf wore a headscarf for religious reasons, which went against company policy that was “intended to promote the brand’s East Coast collegiate image,” according to Al Jazeera. The Equal Employment Opportunity Commission sued Abercrombie on behalf of Elauf.

Abercrombie said that the applicant never mentioned that she needed a religious exception to the policy. In the ruling, justices said that businesses can face discrimination lawsuits even if hiring personnel don’t know that a job applicant needs time off or has to wear certain clothing for religious reasons. 

“While NFIB agrees that religious discrimination should be banned from the workplace, it is unreasonable to think that an employer can provide an adjustment when it is not even requested or expressed,” said Karen Harned, the executive director of NFIB’s Small Business Legal Center in January. NFIB filed an amicus brief in support of Abercrombie

“Shifting this burden to employers sets an unclear and confusing standard making business owners extremely vulnerable to inevitable discrimination lawsuits,” Harned said following the ruling. “Whether employers ask an applicant about religious needs or not, there is a good chance they will be sued.”  

Justice Antonin Scalia called the case “easy” and that the federal law against religious freedom is straightforward, NPR reports

“A lot of the employment laws that are out there, although they may seem, quote-unquote, “easy” to the person that’s not actually in the trenches working with them every day, they are not for the small business owner, and they can get easily tripped up,” Karen Harned told NPR.  

Harned has said that the ruling is a slippery slope for small businesses, and the ruling could lead to more lawsuits in the future. 

“Employers who ask about an applicant’s religion and then don’t extend a job offer for completely unrelated reasons can still be accused of discrimination and dragged into court,” Harned said. “Now, that same employer can be sued on the basis of discrimination if they don’t ask whether accommodations will be needed.”

A federal appeals court said that Abercrombie’s practice was not discrimination because Elauf didn’t tell the store that she was wearing the headscarf for religious reasons, according to Bloomberg. Monday’s ruling means the issue is headed back to a lower court. 

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