Michael A. Helfand: Religion and commerce can coexist

On Wednesday, religion headed back to the Supreme Court, this time considering the treatment of Muslim headscarves in the workplace. At the center of the current controversy is Abercrombie & Fitch's rejection of Muslim job applicant Samantha Elauf.

Abercrombie's reason for rejecting Elauf is straightforward. Elauf wore a headscarf to her interview for a floor salesperson position; but Abercrombie, under its "Look Policy," prohibits its floor salespeople, who it calls "models," from wearing any sort of headgear. Of course, Abercrombie & Fitch could have made an exception for Elauf's headscarf. But the company is particularly sensitive about the carefully curated appearance of its employees; by "represent(ing) the brand" employees create the "fun and engaging environment" that Abercrombie is selling.

The problem is that federal law prohibits discrimination, and requires employers to provide religious accommodations to applicants and employees so long as doing so would not present an "undue hardship." And there's good reason to conclude that accommodating Elauf would not have presented an "undue hardship" — Abercrombie & Fitch has accommodated other religious headgear in the past.

To justify its conduct, Abercrombie has made the following argument: it did not know that Elauf wore her headscarf for religious reasons. Never mind, they say, that Elauf's interviewer stated on the record that she had presumed Elauf wore the headscarf because she was Muslim; and never mind that the interviewer also testified that she conveyed this information to her superiors.

But while this question of legal notice is important, there's actually a much bigger issue at stake. The company's "Look Policy" demands conformity among its employees, providing rules about everything from hair to makeup to style to clothing. The purpose of the policy is to turn the employees into commercial advertisements — and to achieve that type of messaging, Abercrombie & Fitch requires compliance. And because of these commercial objectives, Abercrombie imposes its rules and interprets its legal obligations in a way that squeezes religious expression out of the commercial sphere.

In this way, this current round of litigation tracks the blockbuster 2014 decision in Burwell v. Hobby Lobby, where the Supreme Court held, among other things, that for-profit companies could have religious rights. Critics of the decision have continued to deride the Court's holding, rejecting the possibility that commercial enterprises could also pursue religious aspirations. But what these critics miss — and what Elauf's claim highlights — is people don't have two separate identities: a religious identity they keep locked away at home and a secular identity they bring with them to work.

Whether determining which institutions are granted religious rights or when employees must be afforded accommodations, we must not see religion and commerce as occupying two mutually exclusive spheres. And for cases like Elauf's, our anti-discrimination laws should be read as broadly as possibly to promote accommodation instead of allowing employers to make the price of employment the discarding of religious identity.

Michael A. Helfand is a professor at Pepperdine University School of Law.