High court hears teen hiring, scarf case

Justices dial back evidence law, rule against dental board teeth-whitening limits

Samantha Elauf, (center) her mother, Majda Elauf, and P. David Lopez, general counsel for the Equal Employment Opportunity Commission, leave the Supreme Court on Wednesday after Samantha’s case concerning her claim against Abercrombie & Fitch was presented.
Samantha Elauf, (center) her mother, Majda Elauf, and P. David Lopez, general counsel for the Equal Employment Opportunity Commission, leave the Supreme Court on Wednesday after Samantha’s case concerning her claim against Abercrombie & Fitch was presented.

WASHINGTON -- The Supreme Court on Wednesday heard the case of a Muslim teenager denied a job at Abercrombie & Fitch because of her headscarf, a case that stands to put a greater burden on employers to avoid religious discrimination.

In one of several cases Wednesday, several justices questioned a federal appeals court ruling that sided with Abercrombie. The lower court said Samantha Elauf needed to explicitly tell the company that she required a religious exemption from its dress code to work at an Oklahoma store.

Justice Ruth Bader Ginsburg questioned the company's view, saying Elauf had no reason to think there was anything about her dress that was offensive to the company.

"How could she ask for something when she didn't know the employer had such a rule?" Ginsburg said.

The dispute stems from Abercrombie's requirement that its in-store salesmen, whom it calls "models," reflect the store's style. Under Abercrombie's "look policy," salesmen must wear styles similar to the clothing sold in the store and are prohibited from wearing hats or anything black.

Elauf, then 17, wore a black scarf, known as a hijab, when she met with an assistant manager about a job at an Abercrombie Kids store in Tulsa in 2008. The subject of religion never arose during the interview, although the manager, Heather Cooke, later testified that she assumed Elauf was Muslim.

Cooke was prepared to make a job offer until she discussed Elauf's scarf with Randall Johnson, an Abercrombie district manager. Johnson said that because Elauf would be in violation of Abercrombie's dress code, Cooke should downgrade the girl's interview score and deny her the job.

Federal law requires an employer to "reasonably accommodate" workers' religious practices as long as the business wouldn't suffer any "undue hardship."

Abercrombie, which is based in New Albany, Ohio, agreed to pay $71,000 to settle two similar suits in California in 2013. In Elauf's case, the company said its actions were legal because it didn't have "actual knowledge" that Elauf wore a scarf for religious reasons.

A Denver-based federal appeals court agreed with that argument, ruling in favor of Abercrombie in a 2-1 vote.

Justice Samuel Alito asked why businesses with employee dress policies like Abercrombie can't just explain them to applicants and ask whether they have a problem. Should an applicant wearing obviously religious dress, such as a Sikh turban, have to take the initiative to explain the garb is more than a "fashion statement"? he asked.

Abercrombie contends that it shouldn't be forced to ask employees about their religious views.

Justice Elena Kagan said Abercrombie doesn't want to have what might be an "awkward conversation" with applicants.

"The alternative to that rule is a rule where Abercrombie just gets to say, we're going to stereotype people and prevent them from getting jobs," she said.

The case is Equal Employment Opportunity Commission v. Abercrombie & Fitch, 14-86.

Evidence law

In another case, the high court Wednesday scaled back a federal law that makes the destruction of evidence a crime, saying the measure shouldn't have been used against a Florida fisherman for tossing undersize red grouper back into the sea to avoid a citation.

Voting 5-4, the justices narrowed a provision enacted as part of the Sarbanes-Oxley Act after the 2001 Enron Corp. accounting fraud. The ruling, which overturns John Yates' conviction, means the provision can be used only for record-keeping items, such as documents and computers.

The 2002 law criminalizes the destruction of "any record, document or tangible object" for the purpose of thwarting a federal investigation or proceeding. The question for the court was whether fish qualify under that definition.

President Barack Obama's administration argued that the provision covered all types of physical evidence and filled what had been a gap in federal law. The federal government has used the law to prosecute people accused of destroying bodies, guns, bloodstains, drugs, cash and automobiles.

Writing the court's lead opinion, Ginsburg rejected that reasoning, saying the law covers items "used to record or preserve information."

"It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping," Ginsburg wrote.

Alito, the fifth vote in the majority, wrote separately to say the case should be resolved "on narrow grounds," though his bottom line was similar to Ginsburg's. Alito said the law's wording "makes no sense outside of file-keeping."

Justices Kagan, Antonin Scalia, Anthony Kennedy and Clarence Thomas dissented.

Writing for the group, Kagan called the provision "a bad law" that was emblematic of "overcriminalization and excessive punishment" in the U.S. criminal code.

"But we are not entitled to replace the statute Congress enacted with an alternative of our own design," she added.

The case is Yates v. United States, 13-7451.

Teeth-whitening

Also Wednesday, the court ruled against a North Carolina dental board that barred non-dentists from selling teeth-whitening services, in a decision that allows greater federal scrutiny of self-regulatory professional boards.

The 6-3 ruling upheld an antitrust finding by the Federal Trade Commission, which said the dentist-dominated panel illegally thwarted competition from lower-priced competitors in the teeth-whitening business.

The issue at the high court was whether the board qualified for a long-standing exemption from federal antitrust laws for state regulatory programs. Writing for the court, Kennedy said boards are immune only if they are actively supervised by state officials.

"When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest," Kennedy wrote.

The board argued that it is a state agency, qualifying it for the exemption, even though it is made up largely of practicing dentists.

Justices Alito, Thomas and Scalia dissented. Alito said the court had created a new standard, disrupting a long-standing state practice.

The case was being closely watched by other professional organizations, including legal and medical groups, because of the effect the ruling might have on their activities.

The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, 13-534.

A Section on 02/26/2015

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