AJC Joins Religious Liberty Brief in Supreme Court Case

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Dec 15, 2014, 07:25 ET

NEW YORK, Dec. 15, 2014 /PRNewswire-USNewswire/ -- AJC has joined with eight other civil rights and civil liberties organizations to urge the U.S. Supreme Court to overturn a lower court decision that, the groups argue, imposes "unique and onerous" requirements on those claiming to have suffered religion-based discrimination. The case is titled EEOC v. Abercrombie & Fitch.

Samantha Elauf, a young Muslim woman wearing a hijab, applied for work at an Abercrombie & Fitch store. The person who interviewed her gave her marks sufficient to hire her, but the store supervisor asked that her score be downgraded because the headscarf worn by Elauf for religious reasons was incompatible with Abercrombie's "image." After she was not hired, Elauf was told that her scarf was the reason for the decision. The EEOC, charged with enforcing federal law barring religious discrimination, then sued the retail chain.

The United States Court of Appeals had dismissed the employment discrimination suit on the ground that Elauf had not asked Abercrombie when she was interviewed for an accommodation for her religious practice and the employer's "image" rule—even though at the time she was unaware that the "conflict" would play any role in the disposition of her application.

The AJC amicus brief also noted another issue lurking in the case: "whether customers' (hypothetical) negative reactions to Ms. Elauf's 'look' when she wore the hijab" was a legitimate defense to a charge of religious discrimination. Noting that customer preference may not be used to justify gender, racial, and other forms of discrimination in making employment decisions, the brief urged the Court not to accept Abercrombie's invocation of its image as a basis for religious discrimination.

In their Supreme Court brief, AJC and its allies expressed concern that this decision will "provide a detailed roadmap for employers in making hiring decisions, to circumvent the statute's equal opportunity mandate." The brief stated:

Whatever the theoretical distinction between a clearly impermissible deference to customer aversion to Hindus, Sikhs, or Jews as such and deference to customer aversion to those who follow these religions' teaching concerning hair, beards, garments, and head coverings, it is unlikely, especially in light of the sometimes intense public prejudice harbored toward members of these groups, that such a rule could be sustained without compromising the core antidiscrimination commitments of Title VII.

The organizations joining with AJC in filing the brief are Anti-Defamation League, Jewish Council for Public Affairs, Jewish Social Policy Action Network, Americans United for Separation of Church and State, National Center for Lesbian Rights & Union for Reform Judaism, Central Conference of American Rabbis and Women of Reform Judaism.

The brief was prepared by the University of Virginia Law School Supreme Court Litigation Clinic, led by David T. Goldberg. Toby J. Heytens and Daniel R. Ortiz, and signed as well by Professor Douglas Laycock of the University of Virginia Law School and Marc D. Stern, AJC's General Counsel.

The case will be argued later this winter.

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SOURCE American Jewish Committee