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Dr. Michael Helfand Publishes Opinion Piece on Abercrombie Headscarf Case | USA Today

Religion & commerce can coexist: Column

Abercrombie & Fitch headscarf case shows path to accommodate deeply held faith.

Michael A. Helfand, USA Today

On Wednesday, religion heads back to the Supreme Court, this time considering the treatment of Muslim headscarves in the workplace. At the center of the current controversy is Abercrombie & Fitch's rejection of Muslim job applicant Samantha Elauf.

Abercrombie's reason for rejecting Elauf is straightforward. Elauf wore a headscarf to her interview for a floor salesperson position; but Abercrombie, under its "Look Policy," prohibits its floor salespeople, who it calls "models," from wearing any sort of headgear. Therefore, Elauf wasn't a good candidate for the position.

Of course, Abercrombie & Fitch could have made an exception for Elauf's headscarf. But the company is particularly sensitive about the carefully curated appearance of its employees; by "represent(ing) the brand" employees create the "fun and engaging environment" that Abercrombie is selling.

The problem is that federal law prohibits discrimination, and requires employers to provide religious accommodations to applicants and employees so long as doing so would not present an "undue hardship." And there's good reason to conclude that accommodating Elauf would not have presented an "undue hardship" — Abercrombie & Fitch has accommodated other religious headgear in the past — leaving religious discrimination as the engine driving the rejection of Elauf.

To justify its conduct, Abercrombie has made the following argument: it did not knowthat Elauf wore her headscarf was for religious reasons. Never mind, they say, that Elauf's interviewer stated on the record that she assumed Elauf wore the headscarf because she was Muslim; and never mind that the interviewer also testified that she conveyed this information to her superiors. According to Abercrombie, it only has an obligation to accommodate an applicant's religious practices once the applicant explicitly provides notice that her religious practices conflict with the employer's workplace rules. As a result, because Elauf never officially requested an accommodation, the retailer cannot be held liable for failing to hire and accommodate her.

The argument is, on a basic level, deeply unpersuasive. It was clear to the interviewer that Elauf wore the headscarf for religious reasons. It's hard to absolve them on account that Elauf didn't, in the middle of her interview, think that she needed to also say something more explicit than wearing an obviously traditional Muslim headscarf. To demand a gratuitous explicit declaration seems to ignore common sense.

But while this question of legal notice is important, there's actually a much bigger issue at stake. The company's "Look Policy" demands conformity among its employees, providing rules about everything from hair to makeup to style to clothing. The purpose of the policy is to turn the employees into commercial advertisements — and to achieve that type of messaging, Abercrombie & Fitch requires compliance. And because of these commercial objectives, Abercrombie imposes its rules and interprets its legal obligations in a way that squeezes religious expression out of the commercial sphere.

In this way, this current round of litigation tracks the blockbuster 2014 decision in Burwell v. Hobby Lobby, where the Supreme Court held, among other things, that for-profit companies could have religious rights. Critics of the decision have continued to deride the Court's holding, rejecting the possibility that commercial enterprizes could also pursue religious aspirations. But what these critics miss — and what Elauf's claim highlights — is that people don't have two separate identities: a religious identity that they keep locked away at home and a secular identity that they bring with them to work. For the religious, beliefs and practices are simply part of life regardless of where they find themselves. And to establish artificial distinctions that place obstacles before those who seek to bring their religion into the commercial sphere is to fundamentally misunderstand the comprehensive nature of religious experience.

Of course, there are a variety of reasons why we sometimes do not allow individuals to act in accordance with their religious beliefs and practices. Sometimes allowing people to do so will endanger others or impose significant burdens on society. But restricting such practices should have nothing to do with whether they take place in the context of commerce or in the privacy of the home. Whether determining which institutions are granted religious rights or when employees must be afforded accommodations, we must not see religion and commerce as occupying two mutually exclusive spheres. And for cases like Elauf's, our anti-discrimination laws should be read as broadly as possibly to promote accommodation instead of allowing employers to make the price of employment the discarding of religious identity.

Michael A. Helfand is a professor at Pepperdine University School of Law and associate director of Pepperdine's Diane and Guilford Glazer Institute for Jewish Studies.