Abercrombie Religious Discrimination Case Less Than Cool For Supreme Court, Sikh Americans

03/02/2015 05:58 pm ET | Updated May 02, 2015

Last week, the U.S. Supreme Court heard oral arguments in a case filed by a Muslim plaintiff, Samantha Elauf, who argued that clothing retailer Abercrombie & Fitch denied her a job because of her hijab. If the Supreme Court rules for Abercrombie, it could have catastrophic effects on the workplace rights of other visibly religious minorities, including Sikh Americans.

Abercrombie argued that it did not discriminate against Ms. Elauf because it did not know she needed a religious accommodation to the company's Look Policy, which prohibits headgear. Abercrombie's arguments sound absurd when you consider that Ms. Elauf wore a religious hijab to her job interview, did not know about the Look Policy, and therefore did not know to ask for a religious accommodation. Not to mention that Abercrombie's interviewer, Heather Cooke, testified that she understood Ms. Elauf wore a headscarf for religious reasons and she conveyed this information to management. The response? "If we allow this, then someone will paint themselves green and call it a religion."

At oral arguments, Justice Sotomayor described this as an "unusual case," because of the honesty of Ms. Cooke, who revealed that Ms. Elauf was not hired because of her hijab. This "smoking gun" evidence is rarely available in employment discrimination lawsuits. Often times, a job applicant has no way of knowing whether she was rejected for discriminatory reasons.

Although Abercrombie involves a Muslim plaintiff, Sikhs, who wear religious turbans and maintain unshorn hair (including beards), face similar discrimination in the workplace. Sikhism is a distinct religion originating in Punjab, India and its principles include a commitment to equality, advocating for justice, fighting oppression, and engaging in seva (selfless community service).

Although Sikhism is the fifth largest world religion, many Americans tragically mistake turban-wearing Sikhs for members of Al Qaeda, the Taliban or other extremist groups. Post 9/11, religious-based employment discrimination, hate crimes and violence have been on the rise against Sikh, Muslim, South Asian, Arab and Middle Eastern communities.

For instance in 2008, a well-qualified and charismatic Sikh applicant tried to obtain a job as a salesperson at a car dealership. During a group interview, the dealership's recruiter allegedly asked the applicant if he'd be willing to shave his beard for the job. He explained he could not because as a Sikh, he wears a beard for religious reasons. He was denied the job.

Similar to Abercrombie, the car dealership defended its decision by claiming it did not have enough notice that the Sikh applicant needed a religious accommodation because he never directly told management. The dealership argued this even though the Sikh applicant wore a visibly religious turban and beard to his interview, and even though the recruiter testified he had told management about the applicant's religious beard. The dealership later settled the case and agreed to incorporate major policy changes, including religious accommodation training for its employees.

Under Title VII of the Civil Rights Act of 1964, employers are required to engage in an interactive, informal discussion with an employee or job applicant when confronted with a need for a religious accommodation. It is not unreasonable to ask an employer to recognize that -- "hey, this guy wears a turban. Our policy doesn't allow for headwear. Let's have a conversation. If it's for religious reasons, I will consider whether I can accommodate him."

The law requires employers to accommodate religious practices unless it's an undue hardship. Employers have a greater burden to accommodate religious practices under various state laws, including in New Jersey, New York and California.

If the Supreme Court imposes stringent notice requirements on job applicants and employees, it will set the clock back on religious rights in the workplace by decades. Employers will be able to duck their heads into the sand any time a visibly religious Sikh, Muslim or Jew walks into the workplace. Usually, as in Ms. Elauf's case, a job applicant is not in a position to know about a company's policies and would not know to ask for a religious accommodation. Further, a discriminating employer can easily defend its practices in court by claiming that it lacked notice.

Hopefully, the Supreme Court resolves this notice issue in favor of religious protection. At oral arguments, the justices seemed to be heading that way by giving Abercrombie a vigorous scrub, with Justice Alito noting that an employer can simply inform the applicant of its policy and ask, "Do you have any problem with that?"

Well Abercrombie, you really shouldn't have any problem with that.