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Samantha Elauf outside the US Supreme Court. Elauf was not hired by the preppy retailer Abercrombie & Fitch because she wore a headscarf during her job interview, which the company said conflicted with its dress code. (Reuters/Jim Bourg)

The Important Case of Samantha Elauf and the Workplace Rights of Muslim Women

Reem Subei

As we await the U.S. Supreme Court's decision on the case of Samantha Elauf, it's important to reconsider our understanding of race, religion, sex discrimination and how history and international perspectives come together to shape our daily lives.

Different forms of discrimination intersect in this case in which a 17-year-old was denied an opportunity she would have otherwise been granted if she dressed differently. The decision not to hire Elauf by a well-established employer -- clothing retailer Abercrombie & Fitch -- is a reminder that we need to actively engage in ending the historical subjection of women to social, cultural, and corporate looks standards; in the 21st century, such practices are still a reality.

Elauf, then 17, was looking for a job in 2008 when her Islamic headscarf precluded Abercrombie & Fitch from hiring her. Her interviewer consulted with the firm's district manager about the relationship between the scarf and the company's "Look Policy" that requires employees to dress consistently with clothing "sold in the store" and prohibits "caps."

The latter deemed Samantha's attire incompatible with the company's policy and explained, "someone can come in and paint themselves green and say they were doing it for religious reasons, and we can't hire them." After multiple appeals, Samantha's case is now before the Supreme Court on the issue of whether an employer violates Title VII of the Civil Rights Act of 1964 by refusing to hire an applicant based on a religious practice when the applicant did not explicitly request a religious accommodation.

Abercrombie's meticulous policy, which specifies exactly how its sales associates should look -- including what color nail polish they may wear and how big their earrings should be -- is slowly being scraped apart after the departure last year of the company's CEO of more than 20 years, Michael Jeffries. The firm earlier agreed to modify its policy to allow Muslim women to wear headscarves at work as part of a settlement agreement in 2013.

Yet the larger questions of what must be worn, what may not be worn, and what needs to be stripped off in specific places of employment, courtrooms, schools, etc., are all persistent concerns for women. As a visible group and a religious minority, Muslim women continue to face the brunt of these sexist practices.

Earlier this year, a Canadian judge declined to hear a Muslim woman's case in court because she wore the Islamic headscarf. In an interview following the incident, the judge said the Islamic headscarf was "not suitable" for a secular courtroom. On the other hand, Saudi and Iranian officials require women to conceal their hair and cover their bodies with a long and loose dress in public.

In the United States, Muslim women are routinely forced to remove their headscarves at police stations and jails, denied employment because their clothing style does not match employer's notions of how women should look, and ordered to remove their scarves in court.

This takes place despite the myriad of laws dedicated to eliminating discrimination against women and prohibiting employer and government interference with women's choices of religious attire. The First Amendment to the Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; " Title VII makes unlawful all employment discrimination practices including discrimination on the basis of sex and an employee's exercise of his or her religion; and 42 U.S. Code 1981 prohibits race discrimination in any contract.

While custom and stringent literal interpretation of religious scriptures, coupled with sexism and patriarchy, underlie the clothing mandates imposed on Saudi women, Western women's clothing liberties are further impeded by sentiments of racial discrimination and disdain for religious minorities under the false pretense of Anglocentric notions of gender equality and state secularism.

Jaded by distorted and sensationalized images of repressed Muslim women, many so-called progressives defend practices which require Muslim women to remove their scarves as probative of 'liberty' -- unaware that liberty is freedom from control, interference, obligation, restriction and hampering conditions.

The question currently before the Supreme Court in this case is whether employers must be put on notice about the religiously motivated conduct before an employer would be required to accommodate. Such notice requirements have an incrementally larger impact on minorities because employers are less likely to know about religious practices of minorities.

As a distinct religious minority in the United States, Muslims and their religious practices do not enjoy the cultural pervasiveness of Christian or Jewish practices. Evidently, the vast majority of religious discrimination or harassment cases have been brought by, or on behalf of, Muslims. And the issue of an employer's failure to accommodate the headscarf is the most commonly disputed in recent religious discrimination employment lawsuits brought by Muslim women.

If we expect to remain a nation of democracy, we must not allow our commitment to freedom to turn into an omission of our minorities' freedoms. We cannot turn a blind eye to the Western style of oppressing women through denying them the liberty to dress however they like. If we do, then we would have joined nations like Iran and Saudi Arabia, and groups like the Taliban and Wahhabis, which impose sanctions on women who attempt to make unilateral clothing decisions.

All women, including Muslim women, should be afforded the dignity, justice, and freedom that we pride ourselves in as a nation.

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
Reem Subei

Reem Subei

Attorney Reem Subei is currently the Legal Fellow at the American Arab Anti Discrimination Committee in Michigan.

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