Monday the Supreme Court remanded for further consideration Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. In 2008 the Company decided not to hire an otherwise well-suited prospective employee because it is her religious practice to wear a hijab (below).
The EEOC sued on behalf of Samantha Elauf under Title VII of the Civil Rights Act of 1964. The Act “prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.”
A Federal District Court jury originally found on behalf of the EEOC and awarded damages to Ms. Elauf, but the Tenth Circuit Court of Appeals reversed the decision finding that Ms. Elauf had not explicitly informed the Company that her head-covering is an act of religious devotion. Without this “actual knowledge” of a need for religious accommodation the Tenth Circuit found that the Company was within its rights to stand-by a dress-code that does not allow employees to wear “caps”.
The Supreme Court disagrees.
The 8-to-1 decision written by Justice Scalia strikes me as narrowly framed to discern the law’s intent. The decision is, nonetheless, being hailed as a victory for inclusion, tolerance, and respect for religious practice. The Executive Director of the Council on American-Islamic Relations commented, “We welcome this historic ruling in defense of religious freedom at a time when the American Muslim community is facing increased levels of Islamophobia.”
Samantha Elauf with her mother
Title VII establishes what Justice Scalia characterizes as “favored treatment” for ” all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” On remand the lower courts will take up whether or not accommodation in this case would cause undue hardship.
Meanwhile, Congress struggles to determine what constitutes an undue hardship on personal privacy, especially in collection of meta-data and other often prosaic but powerful tools of digital tracking. Can the National Security Agency reasonably accommodate citizens varied expectations of privacy? Or has any such expectation become an unreasonable delusion?
Meanwhile, a DHS red team encountered barely any hardship at all penetrating TSA security protocols. ABC News reports, “According to officials briefed on the results of a recent Homeland Security Inspector General’s report, TSA agents failed 67 out of 70 tests, with Red Team members repeatedly able to get potential weapons through checkpoints.” Overly accommodating?
Meanwhile, how well can the US economy reasonably accommodate continued drought in California, recurring floods in Texas and Oklahoma, and the accelerating financial and human costs of natural hazards around the globe? As the escalating controversy regarding federal flood insurance demonstrates (and Bill Cumming has explained), even measures meant to help accommodate individuals to risk can actually end up causing undue hardship.
In their consideration of EEOC v A&F, I hear the Supremes offering some wisdom that can extend well-beyond the religious significance of our fashion choices.
This wisdom, at least for me, is amplified by the paradoxies — some would say, absurdities — of Samantha Elauf’s situation. As devout, even pious, as many of her fellow citizens of Oklahoma, Ms. Elauf regularly covers her head to symbolize her obedience to God and as an expression of personal modesty. As an all-American girl — evidenced by her Instagram account — Ms. Elauf is at ease blending this religious sensibility with the merchandising strategy of Abercrombie and Fitch. One sample immediately below.
For its 2012 calendar A&F kept the Christ in Christmas
This is a profoundly American — some adversaries would insist, satanic — tendency to accommodate what many, perhaps most, of the world could perceive as irreconcilably dueling realities. We are being challenged again and again to appear on a supposed field of honor to kill or be killed defending this convergence of contradictions.
The brief Supreme Court opinions — Scalia for the majority: 7 pages, Alito concurring: 6 pages, Thomas dissenting: 10 pages — are examinations of applied epistemology. What do we know and how do we know it? And applied ethics: what is our obligation to act in accordance with what we know?
According to our magistrates, knowledge is often implicit, typically contingent on context, and, when involving humans, requires a careful assessment of intention. Knowledge is applied rightly and wisely when it recognizes contending values, honors diversity, and is especially solicitous regarding the role of individuals as moral agents.
This is a radical view of the world and our place in it that is considered naive and/or heretical and/or threatening by many millions. It is also the great attraction of the American experience for millions more.
When we look to our most contentious homeland security issues — for example, privacy v. intelligence-operations, liberty v. security, individual v. community — are the epistemological principles articulated in EEOC v A&F the rule or the exception? Are we predisposed to accommodate or insist? Are we exclusive or inclusive? How much are we tempted to the dogmatism of our critics?
When challenged to a duel do we have sufficient knowledge of self and other to select the most appropriate weapon: sword, plowshare, or pie shell (whipped cream or lemon custard)?
Is this heresy, comedy, or serious commentary? (Non Sequitur by Wiley Miller)