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Samantha Elauf (R), who was denied a sales job at an Abercrombie Kids store in Tulsa in 2008, stands with U.S. Equal Employment Opportunity Commission (EEOC) lead attorney Barbara Seely (C) at the U.S. Supreme Court in Washington, February 25. REUTERS/Jim Bourg/Files

U.S. top court backs Muslim woman denied job over head scarf

By Lawrence Hurley

Samantha Elauf (R), who was denied a sales job at an Abercrombie Kids store in Tulsa in 2008, stands with U.S. Equal Employment Opportunity Commission (EEOC) lead attorney Barbara Seely (C) at the U.S. Supreme Court in Washington, February 25. REUTERS/Jim Bourg/Files

Samantha Elauf (R), who was denied a sales job at an Abercrombie Kids store in Tulsa in 2008, stands with U.S. Equal Employment Opportunity Commission (EEOC) lead attorney Barbara Seely (C) at the U.S. Supreme Court in Washington, February 25. REUTERS/Jim Bourg/Files

WASHINGTON, June 1 (Reuters) – The U.S. Supreme Court on Monday ruled in favor of a Muslim woman who sued for discrimination after being denied a sales job at age 17 at an Abercrombie & Fitch Co clothing store in Oklahoma because she wore a head scarf for religious reasons.

In an 8-1 decision in the important religious rights case, the court backed Samantha Elauf, who had been rejected under Abercrombie’s sales staff “look policy” after coming to her job interview wearing the head scarf, or hijab, used by many Muslim women.

The decision marked a victory for the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that sued the company on Elauf’s behalf after she was turned down in 2008 at an Abercrombie Kids store in Tulsa.
“Observance of my faith should not have prevented me from getting a job. I am glad that I stood up for my rights, and happy that the EEOC was there for me and took my complaint to the courts,” Elauf said in a statement issued by the EEOC.

Elauf, now 24, initially won a $20,000 judgment against Abercrombie before a federal district court. The 10th U.S.Circuit Court of Appeals in Denver then threw that out, ruling in favor of Abercrombie, before the high court backed Elauf.

“We welcome this historic ruling in defense of religious freedom at a time when the American Muslim community is facing increased levels of Islamophobia,” said Nihad Awad, the national executive director of the Council on American-Islamic Relations.

Monday’s ruling was the second decision by the high court during its current term in favor of a Muslim alleging discrimination. In January, the justices found that an Arkansas policy prohibiting inmates from having beards violated the religious rights of a prisoner who had wanted to grow one in accordance with his Muslim beliefs.

The court has taken an expansive view of religious rights. Last year, it sided with a Christian-owned company that objected on religious grounds to providing health insurance coverage for birth control for women.

Abercrombie said in a statement the case will continue, noting the justices had not ruled that discrimination took place. “We will determine our next steps in the litigation,” Abercrombie said.

Religious Accommodation

The Supreme Court had to decide whether Elauf was required to ask for a religious accommodation to allow her to wear the scarf in order for the company to be sued under the 1964 Civil Rights Act, which among other things bans employment discrimination based on religious beliefs and practices.

Despite wearing the head scarf, she did not specifically say that, as a Muslim, she wanted the company to give her a religious accommodation.

In an opinion by Justice Antonin Scalia, the court said Elauf only had to show that her need for an accommodation was a motivating factor in Abercrombie’s decision not to hire her.

Justice Clarence Thomas, the sole dissenter, said that “mere application of a neutral policy” should not be viewed as discrimination.

The company’s “look policy” for members of the sales staff was intended to promote the brand’s East Coastcollegiate image.

Abercrombie said that in April it replaced that policy with “a new dress code that allows associates to be more individualistic” while also changing hiring practices so “attractiveness” is no longer a factor.

The case now returns to a lower court, with Abercrombie getting the chance to argue that being forced to provide an accommodation would impose undue hardship on it.

Muslim groups said in court papers in support of Elauf that employment discrimination against Muslims is widespread in the United States. Often, the act of a woman wearing a head scarf triggers the discrimination, they said.

The EEOC says Muslims file more employment claims about discrimination and the failure to provide religious accommodations than any other religious group.

Groups representing Christians, Jews and Sikhs also filed court papers backing Elauf.

Abercrombie had the backing of business groups including the U.S. Chamber of Commerce.

The case involving a young Muslim woman alleging workplace discrimination in the American heartland was decided by the top U.S. court at a time when some Western nations are struggling with culture clashes relating to accommodating Muslim populations. The United States has not faced the same tensions as some European countries including France.

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Samantha Elauf (r) stands outside the U.S. Supreme Court in Washington, February 25, 2015. Photo credit: Jim Bourg / Reuters.

Supreme Court to hear case of a headscarf that cost a Muslim teen a job

Samantha Elauf (r) stands outside the U.S. Supreme Court in Washington, February 25, 2015. Photo credit: Jim Bourg / Reuters.

Samantha Elauf (r) stands outside the U.S. Supreme Court in Washington, February 25, 2015. Photo credit: Jim Bourg / Reuters.

By Lauren Markoe
Religion News Service

WASHINGTON — The Supreme Court on Wednesday (Feb. 25) will hear the case of a young Muslim woman who says the Abercrombie & Fitch clothing store illegally denied her a job because she wears a hijab in keeping with her faith.

The store argues that company policy used to forbid floor “models” — the company’s word for store employees who interact with customers — from wearing caps, and that it was up to Samantha Elauf, 17 at the time of her interview, to make it clear that she needed a religious accommodation.

A federal district court agreed with Elauf and her lawyers in the case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., which originated in Tulsa, Okla. But the Denver-based 10th U.S. Circuit Court of Appeals sided with Abercrombie.

Now the Supreme Court, which in recent years has generally sided with those who say that their religious rights have been trampled, will hear Elauf’s appeal.

Her attorneys say she is protected by the Civil Rights Act of 1964, which prohibits employment discrimination on the grounds of race, national origin, sex and religion.

If the high court agrees with the 10th Circuit, it would “permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence if the applicant does not know that she must expressly state her need for a religious accommodation, even when she is unaware of employer policies that would require it,” said William Burgess, senior staff attorney at the Council on American-Islamic Relations, which filed a brief in the case.

On the store’s side, the Cato Institute, a Washington-based libertarian think tank, argued in its brief that it must be up to the prospective employee to raise the issue of a religious accommodation.

“Any other rule not only foments tremendous awkwardness in the employer-employee relationship, but puts the employer in the untenable position of having to inquire into certain sensitive personal information even as such queries themselves are legally
disfavored,” the Cato brief states.

The court is expected to decide the case in the spring or early summer.

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British Columbia Supreme Court Rules Against Polygamy

By Adil James, TMO

In a 270 page decision that seems to provide a detailed look into polygamy from the perspectives of law, sociology, and the personal experiences of witnesses, Justice Bauman of the British Columbia Supreme Court ruled that there is a conflict between Canada’s law against polygamy and the Canadian Charter of Rights and Freedoms, but that the conflict is legally justified by the harms that the law is meant to avoid.  Secondly, the Justice ruled that the application of Section 293 can be applied to adult polygamous marriages.

Therefore the Justice ruled against polygamy in Canada.

On deeper inspection, Bauman’s opinion appears to be a carefully crafted argument in support of Western law curtailing polygamy, which fails to consider important facts which militate against such laws.

The decision is noteworthy because it is a detailed exploration of the field of polygamy.  It touches on Islam, respectfully, and explores the involvement of Muslims today in polygamy.  The opinion shows the solicited opinions of people providing social services to Muslim families on polygamy. The opinion even refers to Prophet Muhammad (s), and respectfully.

For months Supreme Court Justice Robert Bauman has been considering and preparing this judgment in a case to decide whether Canada’s law regarding polygamy is limited by its law regarding freedom of religious practice.

Although today’s ruling is not the final ruling on the matter (the result certainly may be appealed to Canada’s Supreme Court from the provincial Supreme Court), today’s ruling will necessarily be a a reference point for future discussion of polygamy in Canada and the US, despite its bias and failure to consider facts inconsistent with its conclusion, because it touches on many tangent issues, especially a deep exploration of Canadian historical law and the Canadian constitutional machinery in relation to polygamy and Section 293. 

The case at hand revolved around members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), which continues to espouse polygamy despite the mainstream Mormon church’s having turned away from the practice. Throughout a corridor of Western states and up into Canada (especially Bountiful, BC), many Mormons continue the practice despite the certain illegality in the US and the illegality until now of the practice in Canada.

The judgment is a measured look at many issues surrounding polygamy, but it does show some bias against polygamy from the beginning, by exploring the harms of polygamy over many pages—likely half the pages in the judgment either mention harms from polygamy or are in support of sections that explore the harm from polygamy.  The opinion does not explore an issue directly impacted by the law which is not enforced, namely sexual relations outside of marriage.  Bauman does not discuss whether it is fair to enforce s. 293 against polygamists but then fail to enforce the law against adulterers, or whether it is fair to enforce a law against adulterers while failing to consider the polyamorous activities of people who never marry.  He does not consider the evolving notions of what constitutes acceptable sexual behavior, for instance in the past in Western societies it was unacceptable for men and women to cohabit without marriage, and yet now many do so, and bear children without the benefit of legitimacy.  He failed to consider polygamy in relation to non-traditional marriages that are now legal in Western countries, such as same sex marriages.  While polygamy may be connected to harms in the specific fact pattern Bauman analyzed, it is very unclear that restrictions on polygamy can be enforced without hypocrisy by men, judges and politicians, who engage in affairs outside their marriages, or who otherwise engage in behavior that their ancestors would have had them imprisoned for.

Bauman looks at length at the harms he traces to the FLDS practice of polygamy, but does not consider alternative modes of polygamy, fact patterns that are different.  He argues that the majority of nations do not allow polygamy, but he does not delve very deeply into the figures concerning this—other writers have argued that the majority of the world’s people live in societies where polygamy is allowed.  Important nations allow polygamy, such as Malaysia, India, Egypt, and others.  Bauman does not contrast the harms of polygamy as FLDS practices it with the benefits of it in other contexts. 

Bauman in his opinion also explores Western historical bases for monogamous marriage.  He discusses the harmful effects on children groomed for and coaxed unwillingly into marriages with men many years their senior, who marry multiple women and girls without limits.  The judgment explored the fact that some men become an underclass of unattached bachelors for whom no wives are available.

He makes it clear that s. 293 is meant to apply without exception, not allowing any polygamy at all, and he discusses at great length the harms that he connects to polygamy.

Justice Bauman relates these harms as the basis for Section 293; he does conclude that there is a conflict between Section 293 and the Charter, (page 211 of the opinion), “I will hereby express my conclusion:  I accept the Amicus’ submissions that s. 293 violates the religious liberty of those persons I have described in a manner that is non-trivial and not insubstantial,” however in Canadian law as in US law there is a balance that must be performed between the “violation of religious liberty” and the harm such violation is meant to address. Since the facts before Bauman involved abuse and exploitation of minors on a large scale, and since his opinion focused on those harms, it is natural that his resulting opinion found that the Canadian criminal against polygamy justifiably violated those religious liberties.

The judge ruled that Section 293 of the Criminal Code of Canada (which outlaws polygamy) and the Canadian Charter of Rights and Freedoms, the conflict is “a law that is substantially constitutional and peripherally problematic,” the peripheral problem involving the application of Section 293 against people between 12 and 18 who are involved in polygamous marriages, until they turn 18 (a peripheral issue).

The implications of this court case to date are (1) that Canada will not be the sole Western state to endorse polygamy legally, (2) that Muslims are also constrained by Section 293—the application of 293 is not limited to the current facts of FLDS’s wholesale exploitation of minors, (3) the case will likely be appealed and will likely be affirmed, (4) the In the Matter of:  Constitutional Question Act, RSBC 1986, Docket S097767, is likely required reading for anyone interested in the Western legality of polygamy, and will likely be required reading for some time.

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