SAM HANANEL
Associated Press
WASHINGTON (AP) — Did retailer Abercrombie & Fitch discriminate against a Muslim woman who was denied a job because her headscarf clashed with the company’s dress code?
That’s the question in one of the 11 cases the Supreme Court said Thursday it will take on in its new term.
The justices took no action on the highly anticipated issue of same-sex marriage, though a decision on the gay marriage cases could come later this month.
Among the new cases, the court will consider the scope of housing discrimination laws, the First Amendment rights of judicial candidates to raise campaign money and a challenge from Arizona Republicans over who can draw the state’s congressional districts.
In the Abercrombie dispute, the Equal Employment Opportunity Commission sued the retailer after it refused to hire Samantha Elauf at a Tulsa, Oklahoma, store in 2008 because her Muslim hijab conflicted with the company’s “look policy.” The policy was described at the time as a “classic East Coast collegiate style.”
A federal judge initially sided with the EEOC, but the 10th U.S. Circuit Court of Appeals reversed, saying Elauf never directly informed her interviewer she needed a religious accommodation, even though she was wearing the headscarf during her interview.
Government lawyers say the appeals court ruling undercuts legal protections for religious practices because it unfairly places the entire the burden to raise the issue with job applicants who often aren’t aware of a potential conflict.
Abercrombie, which has faced slumping sales and could face negative publicity in the case, has pressed on with its defense, saying it was Elauf’s obligation to explain any special needs based on her religion. The company argues that job applicants “are not permitted to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”
Abercrombie has settled two other EEOC discrimination lawsuits over the same issue and it changed its “look policy” four years ago to allow its workers to wear hijabs. The company did not immediately respond to a request for comment.
The housing discrimination case is the third time in recent years that the Supreme Court has considered a challenge to the legal theory known as disparate impact. The strategy uses statistics to show that certain policies can harm racial minorities even when there is no intent to discriminate.
The case involves a Texas fair housing group that claims the state’s system for distributing low-income housing tax credits discriminates against racial minorities by perpetuating segregated neighborhoods. A federal appeals court agreed that the group could use statistics to show the state was approving more low-income housing in black neighborhoods than in white areas.
The Texas Department of Housing and Community Affairs argues that allowing disparate impact claims would open nearly two dozen housing programs in the state to potential litigation. The agency said it essentially forces officials to seek out race-neutral results without actually taking race into account.
While disparate impact is routinely has been used in employment discrimination cases, it is not explicitly covered under the Fair Housing Act. The Obama administration has increasingly used the doctrine to win hundreds of millions of dollars in legal settlements.
The Supreme Court has tried to tackle the issue twice before, but those cases were settled out of court in 2012 and 2013, just weeks before oral argument. Those settlements — one brokered by the Justice Department — cheered civil rights groups hoping to avoid an adverse ruling from court conservatives.
In other major cases, the court:
— Agreed to resolve a growing debate over whether states that elect judges can prohibit judicial candidates from directly seeking campaign contributions. In a case that could affect hundreds of judicial races around the country, the justices will hear an appeal from a Florida judicial candidate who argues the state’s ban violates her First Amendment free-speech rights. The Florida Supreme Court upheld the ban, saying it was justified because fundraising raises an appearance of impropriety. Thirty-nine states allow voters to elect judges and 30 have laws or rules barring candidates from personally seeking contributions. Most of those states have blanket prohibitions similar to Florida’s.
— Will consider a challenge by Arizona Republicans to the state’s congressional districting map. Arizona voters created an independent redistricting commission in 2000 in an effort to take politics out of the process. But the GOP-led legislature complained in a lawsuit that the Constitution exclusively gives power to draw maps for congressional districts to elected state lawmakers. A divided panel of federal judges dismissed the lawsuit.
All of the cases taken up Thursday will be scheduled for argument next year, with decisions expected by the end of June.
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