The Supreme Court, hearing the case of a young Muslim woman who was turned down for a sales job because she wore a head scarf, sounded poised to toughen rules against job discrimination involving religious beliefs.
Employers sometimes have a legal duty to ask a job applicant whether workplace rules conflict with her religious beliefs, rather than wait for the applicant to raise the issue, the justices suggested.
Federal law forbids employers from denying a job to someone because of her religion. Companies and agencies also have a duty to make reasonable accommodations for an employee's religious beliefs or practices.
But when an applicant is turned down for a job, it may not be clear whether religion played a role -- the issue the justices grappled with Wednesday.
The case before the court involved Samantha Elauf, who was 17 and wearing a black head scarf when she applied for a sales job at an
The scarf conflicted with the retail chain's "look policy," the supervisor said.
Elauf was not hired, and the U.S. Equal Employment Opportunity Commission sued the company and said it had failed to "accommodate her religious beliefs."
In its defense, Abercrombie said its "look policy," which it has since changed, was neutral toward religion. Moreover, interviewers were told not to ask about a job applicant's religious faith because doing so might be illegal, the company said.
A federal judge ruled for the young woman, and she was awarded $20,000 in damages. But the U.S. appeals court in Denver threw out the verdict and decided Elauf had no case because she had failed to mention her religion or ask for an accommodation that would have allowed her to wear the head scarf.
During Tuesday's argument, most of the justices sounded as though they thought Elauf should win the case, but they were uncertain about what rule to impose on employers.
Justices Samuel A. Alito Jr. and Ruth Bader Ginsburg said the right answer might be to require employers to ask about a potential conflict. The two justices are often on opposite sides of discrimination and religious rights cases.
Alito said it would be obvious if a job applicant wearing a turban, a yarmulke or a nun's habit did so because of religion.
"Do these people have to say: 'We're dressed this way for a religious reason. We're not just trying to make a fashion statement?'" he asked.
A lawyer for Abercrombie agreed that those religious claims would be apparent, but said not all cases were so easy. What about an applicant with a beard, the lawyer asked.
"Well, couldn't the employer say, 'We have a policy of no beards' or whatever? Do you have a problem with that?" Alito said.
A Justice Department lawyer agreed that approach might work.
Ginsburg later posed the same question to a lawyer for Abercrombie.
"All [you] have to do is say: 'This is what our "look policy" is. Do you have a problem with it?' As Justice Alito pointed out … you don't have to probe anything about religion," she said.
The justices agreed with the government's lawyer that putting the full burden on a job applicant to ask for a religious accommodation was unfair. The government lawyer also said Abercrombie's store supervisor knew or should have known that Elauf's head scarf reflected her religion.
In addition to changing its policies, Abercrombie has settled some similar cases, but it has continued to fight the case brought by Elauf.
The court is expected to rule on the case by the end of its term in June.