On June 1, SCOTUS came down with its opinion in EEOC v. Abercrombie & Fitch Stores Inc., in which it looked at these facts: Female applicant wears a head scarf to a job interview with A&F—a company that is known for its form fitting clothes for the younger consumer. (I went there once and the look of the salesperson was essentially: “move along sir, there is nothing for you here.” She was right.) The applicant is not hired although she was qualified, according to the interviewer. Why? The company has a “look policy,” which means no head gear whatsoever. A&F believes the head gear may be worn for a religious reason.

The majority sides with the EEOC. The lone dissent: Justice Thomas. So let’s start there because what he espouses are no longer viable arguments. Here is his reasoning: the law only prohibits intentional discrimination, and the policy applied to all head gear regardless of the reason—thus no violation. But what about the requirement in the law that an employer must discuss an accommodation with the employee (you are wearing head gear for a religious reason vs. our policy prohibits any head gear, so let’s talk and seek resolution)? Justice Thomas argues that there is a claim for an employee but only if discrimination is shown. In other words, employees are allowed for secular reasons to wear head gear but employees are not allowed to wear head gear for non-secular reasons.

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