The news coverage of this issue is really distressing. It is not the usual – that they are presenting a weak minority opinion as an equal (e.g. climate change) or overhyping the story (most of the news these days) or focusing on political implications for stories about important policies where we need to focus on what is actually the best thing to do rather than who will vote for it.
No, in this case, they are getting the entire story wrong. The Supreme Court is currently ruling on whether Abercrombie and Fitch acted legally during the hiring process of an applicant who was wearing a hijab or whether they discriminated against her religion. But the news coverage is making it out to be a case around whether A&F should have accommodated the hijab and therefore discriminated against her or whether it was OK to deny her a job because her hijab violated A&F’s employee dress code.
What the case is really about is who is supposed to bring up the subject during the hiring process: the candidate or the hiring manager. In this case, the candidate came in wearing a black head scarf. She never said it was a hijab, that she was a Muslim, or that her faith required her to wear the hijab. If she had mentioned it, A&F would have been legally required to seek an accommodation and could only deny her the job if there was no reasonable way. If A&F has asked about it and she said yes, then the same result. But in this case, neither side brought up the subject. A&F did not deny a Muslim a job because of a religious hijab. They denied a woman a job because of a headscarf that violated their dress code.
So the Supreme Court is weighing these two constraints:
- If we put the responsibility to bring up the subject on the candidate, that is problematic because candidates might be hesitant to bring up a subject that could be uncomfortable or hurt their chance of getting the job. The employer has the power, so they should feel more comfortable bringing it up.
If we put the responsibility to bring up the subject on the employer, that is problematic too. First, the hiring manager has to be aware of every possible religion-based practice. Many of us are familiar with hijabs, but there are also many women who wear headscarves for purely non-religious reasons. But the Supreme Court is not just ruling on hijabs, they are ruling on all religious expressions. What if an animist has a large lion tattoo on his forehead that is required by his sect? A reasonable accommodation might be possible if employees are wearing caps during work anyway (e.g. food workers). But how is the hiring manager to know? They could easily mistake that for a sign that this employee is not the right fit for the restaurant.Second, we are stuck in a political correctness culture where employers are legitimately concerned that bringing up religion during the job interview is a violation of the candidates’ rights. So they are legitimately hesitant to bring it up for a totally different but very common legal concern. So they would have to train every store employee who might be involved in the hiring process about how to ask about religious requirements in a subtle, tactful, legal, and politically correct way. This is tough given the employee turnover in these kinds of businesses.
So this is a much more nuanced case than the media is making it out to be. It is not about religious discrimination at all. It is about who is better situated to bring up the topic of a needed accommodation (religious, age, disability, gender . . . ) given the real and important sensitivities of both sides during the hiring process.
If the case was direct discrimination, it would not have even made it to Appeal. A&F would have lost at the very beginning and the case would have been closed.