Muslims Women, Religious Freedom, and EEOC v. Abercrombie

Earlier this week, the Supreme Court ruled in favor of a young American Muslim woman who was denied employment at the popular retail store Abercrombie & Fitch on account of her Islamic religious attire. What implications does this ruling have for religious freedom, especially for religious minorities? How does it compare to other recent rulings on similar cases in Europe? Is this ruling an indication of a more open society toward Muslim minorities—or an exception to continued discriminatory policies?

By: Engy Abdelkader

The US Supreme Court’s recent decision in EEOC v. Abercrombie & Fitch —supporting a Muslim woman’s civil right to observe hijab at work and prohibiting employers from considering a job applicant’s religion or belief practices in hiring decisions—reinforces America’s commitment to religious freedom. 

Additionally, one might draw a number of broader insights. 

First, the case highlights female agency in challenging anti-Muslim discrimination.

A practicing Muslim who observes hijab, Samantha Elauf applied for a job at an Abercrombie store and was found to qualify for the position. But, the interviewing employee expressed concern that her Islamic religious attire violated the store’s “Look Policy.”

Specifically, Elauf’s headscarf conflicted with a prohibition against “caps.” After consulting with superiors, the employee rejected the then seventeen-year-old.

In response, the young Muslim woman filed a civil rights complaint. She saw the case through both favorable and not-so-favorable court decisions all the way up to the historic US Supreme Court ruling.

Of course, Elauf is not the only American Muslim woman who has challenged the status quo.

Since 9/11, Muslim women have increasingly* turned to the judicial system to realize their constitutional right to equal protection and the free exercise of religion in school, at work, and in places of public accommodation.

In 2004, for instance, the Oklahoma Muskogee Public School District settled a civil rights case involving a Muslim sixth-grade student who had been wrongfully suspended for eight days after refusing to remove her hijab. Nashala Hearn, through her father, sued and the US Department of Justice intervened, supporting her case. Ultimately, the school modified its policies to ensure future religious accommodations.

In 2008, a Georgia judge had a Muslim woman arrested and jailed after she refused to remove her hijab in the courthouse. When a security guard demanded Lisa Valentine remove her headscarf as part of a screening, she protested. And then she landed before a judge who found her in contempt.

Valentine sued, too. The 2011 settlement included new security protocols permitting private screenings for those practicing religious dress.

More recently, in 2013, an Albuquerque hotel settled a religious discrimination claim for $100,000 after refusing to allow a Muslim employee to observe the hijab. When the hotel fired Safia Abdullah for insisting on wearing a headscarf, she took legal action.

Elauf, Hearn, Valentine, and Abdullah are a far cry from the stereotypical Muslim woman.

Second, while the Supreme Court’s decision breaks new ground, formidable employment related challenges remain.

Research from Carnegie Mellon found that Americans who are conspicuously Muslim on Facebook and LinkedIn are less likely to receive an interview than Christian counterparts with identical credentials. Related, University of Hawaii researchers found that that observing hijab negatively impacts all aspects of the hiring process.

In EEOC v. Abercrombie & Fitch, Samantha Elauf experienced discrimination after an interview, but these findings suggest that many Muslim women are not receiving such requests in the first instance.

To reverse this discriminatory trend, employers must improve recruiting and hiring initiatives to emphasize diversity—religious, gender, racial, ethnic, age, disability—as an asset and priority.

Third, the Supreme Court’s recent decision is a significant voice in the global conversation about Islamic religious attire.

From China to Congo-Brazzaville to Russia, anti-Muslim sentiment often manifests in opposition to such dress. Perhaps nowhere is this more apparent than Western Europe, where such prejudice yields stark economic realities undermining socio-economic advancement and integration.

In the UK, for instance, Muslim women suffer unemployment rates three times higher than the national average. Recent research from the University of Bristol found Muslim women are 71 percent more likely to be unemployed than white Christian counterparts with identical education levels and language skills.

In Belgium, where several cities have bans against the headscarf and a face veil ban is in effect across the country, Muslims also suffer from pervasive employment discrimination. Most of the cases filed by women revolve around hijab. According to Amnesty International, both private companies and public employers have enforced restrictions against Islamic religious attire.

In Sweden and Germany, Muslims also have trouble securing permanent, full-time employment. Muslim women who manage to find a job encounter religious discrimination on account of their hijab. Additionally, most employers disregard related religious accommodation requests; legislation designed to prohibit such discrimination is not consistently implemented.

There is at least one positive legal development in Germany worth noting, however.

In March 2015, the country’s highest court found a headscarf ban for teachers unconstitutional. The court reasoned that the “blanket ban on religious expression... based on the outward appearance of educators” undermines the right to religious freedom. At that time, at least half of Germany's 16 states had banned teachers from wearing the hijab. The court’s decision invalidates all of those discriminatory measures.

In the months and years ahead, it will be interesting to watch the potential long-term impact of the US Supreme Court’s recent decision, here and across the Atlantic. 

*Still, anecdotal evidence suggests many anti-Muslim discrimination claims go unreported.

Engy Abdelkader is faculty at Georgetown University’s Edmund A. Walsh School of Foreign Service, where she teaches courses on international terrorism and human rights as well as civil liberties and national security. 

This piece was originally authored on June 5, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/7/14/muslims-women-religious-freedom-and-eeoc-v-abercrombie