New York Times

WASHINGTON — Justice Samuel A. Alito Jr. on Wednesday warned that “this is going to sound like a joke,” and then posed an unusual question about four hypothetical job applicants. If a Sikh man wears a turban, a Hasidic man wears a hat, a Muslim woman wears a hijab and a Catholic nun wears a habit, must employers recognize that their garb connotes faith — or should they assume, Justice Alito asked, that it is “a fashion statement”?

The question arose in a vigorous Supreme Court argument that explored religious stereotypes, employment discrimination and the symbolism of the Muslim head scarf known as the hijab, all arising from a 2008 encounter at Woodland Hills Mall in Tulsa, Okla.

Samantha Elauf, then 17, sought a job in a children’s clothing store owned by Abercrombie & Fitch. She wore a black head scarf but did not say why.

The company declined to hire her, saying her scarf clashed with the company’s dress code, which called for a “classic East Coast collegiate style.” The desired look, Justice Alito said, was that of “the mythical preppy.”

Ms. Elauf recalled the experience in a statement issued after the argument.

“When I applied for a position with Abercrombie Kids, I was a teenager who loved fashion,” she said. “I had worked in two other retail stores and was excited to work at the Abercrombie store. No one had ever told me that I could not wear a head scarf and sell clothing.”

“Then I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith,” she added. “This was shocking to me.”

Ms. Elauf, now 24, works at an Urban Outfitters store in Tulsa. A spokeswoman for the Equal Employment Opportunity Commission, which sued Abercrombie on her behalf, said Ms. Elauf was declining interview requests.

A spokesman for Abercrombie & Fitch, Michael Scheiner, said the company “has a longstanding commitment to diversity and inclusion, and consistent with the law has granted numerous religious accommodations when requested, including hijabs.”

The Supreme Court on Wednesday seemed sympathetic to Ms. Elauf’s position, which is that she should not have been required to make a specific request for a religious accommodation to wear a hijab. The company’s position is that it should not have been made to guess that Ms. Elauf wore a head scarf for religious reasons.

In response to Justice Alito’s question about the four hypothetical applicants, Shay Dvoretzky, a lawyer for the company, conceded that some kinds of religious dress presented harder questions, but he said the court should require applicants to raise the issue of religious accommodations.

Several justices suggested that an employer should simply describe its dress code and ask if it posed a problem. That would shift the burden to the applicant, they said. If the applicant then raised a religious objection, the employer would be required to offer an accommodation so long as it did not place an undue burden on the business.

That approach, Mr. Dvoretzky said, would itself require stereotyping.

But Justice Elena Kagan said that the approach was the lesser of two evils. On the one hand, it could require an “awkward conversation,” she said. “But 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.’ ”

Justice Ruth Bader Ginsburg added that Ms. Elauf had not even known that her hijab was a problem.

“How could she ask for something when she didn’t know the employer had such a rule?” Justice Ginsburg said.

The store’s manager at first recommended that Ms. Elauf be hired. But after consulting with a district manager, she concluded that Ms. Elauf’s appearance posed a problem.

The Equal Employment Opportunity Commission said the company had violated the Civil Rights Act of 1964, which prohibits religious discrimination in hiring. At the trial, Ms. Elauf said she loved movies, shopping, sushi and the mall. “It’s like my second home,” she said.

She was saving, she said, to open her own boutique. It would sell “really fashion-forward stuff, cute stuff,” Ms. Elauf said.

Her experience with Abercrombie made her feel “disrespected because of my religious beliefs,” she said. “I was born in the United States and I thought I was the same as everyone else.”

A jury awarded Ms. Elauf $20,000.

But the United States Court of Appeals for the 10th Circuit, in Denver,ruled for the company. “Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her head scarf, or ‘hijab,’ for religious reasons,” Judge Jerome A. Holmes wrote for the court.

The company has maintained that it had no reason to know that Ms. Elauf’s head scarf was required by her faith. In its brief in the case, E.E.O.C. v. Abercrombie & Fitch Stores, No. 14-86, it said job applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”

In an argument about stereotypes, the justices tried out a few examples.

“Suppose,” Justice Kagan asked, “an employer just doesn’t want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish and the employer doesn’t know he’s Jewish. No absolute certainty, and certainly Mr. Goldberg doesn’t say anything about being Jewish, but the employer just operates on an assumption that he’s Jewish, so no, he doesn’t get the job. Is that a violation?”

Mr. Dvoretzky said that was classic employment discrimination based on religion. But Abercrombie’s dress code was different, he said. It applied neutrally in banning all head coverings.

That was the problem, Justice Ginsburg responded. “They don’t have to accommodate a baseball cap,” she said. “They do have to accommodate a yarmulke.”

The lawyer for the employment commission, Ian H. Gershengorn, sometimes seemed to frustrate at least some of the justices with the fine distinctions he drew. He said employers had to offer accommodations based on a variety of inferences and assumptions.

Justice Antonin Scalia responded, “You’re confusing me enormously.”

peaking of a hypothetical employer, Justice Scalia said, “You just say he understands. That doesn’t do anything for me, what he understands, knows, believes, suspects. What other verbs do you need?”

But Justice Stephen G. Breyer said the basic inquiry should be easy.

“If the employer correctly infers, correctly understands — and I would add ‘or correctly believes’ — that a practice is religious and an accommodation is necessary, that’s it,” he said. “Then he has to accommodate unless he has one of the excuses under the statute.”