By Joseph Dalia
Employee Rights Advocacy Law Student Fellow
The Employee Rights Advocacy Institute For Law & Policy
In an 8-1 decision written by Justice Antonin Scalia, the U.S. Supreme Court on June 1, 2015 held in EEOC v. Abercrombie & Fitch Stores, Inc
. that under Title VII “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” In a significant victory for workers, the opinion clarified that an employer need not have actual knowledge of an applicant’s or employee’s need for a religious accommodation in order to violate the statute. NELA joined an amicus brief
with a number of religious and employee rights organizations supporting petitioner Samantha Elauf, which was drafted by NELA member Todd R. McFarland, Associate General Counsel of the General Conference of Seventh-day Adventists, and Gene C. Schaerr, of the Law Offices of Gene Schaerr.
In 2008, Elauf, a practicing Muslim, submitted an application, was interviewed and rejected for hire at an Abercrombie & Fitch store in Tulsa, Oklahoma. Elauf wore a hijab or headscarf to her in-person interview, but was not asked if she needed a religious accommodation because the company’s Look Policy prohibited wearing “caps” in the workplace. The interviewing manager believed that Elauf wore the headscarf for religious reasons. An Abercrombie district manager decided that Elauf’s headscarf, as well as any headgear, whether worn for religious reasons or not, would violate company policy and directed that Elauf not be hired. Despite receiving a high interview score, Elauf was denied the job.
The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf alleging that she was not hired due to her religious practices in violation of Title VII, arguing that an exception to the Look Policy should have been made to accommodate her. The district court granted summary judgment to the EEOC on the issue of liability and a jury awarded Elauf $20,000 in damages. The U.S. Court of Appeals for the Tenth Circuit reversed and granted summary judgment to Abercrombie, reasoning that it could not be liable absent evidence that the applicant provided “actual knowledge” of the need for an accommodation.
The Supreme Court disagreed with the appellate court and held instead that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” The Court pointed out that Title VII does not “limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices.” Rather, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.” The Court elaborated that intentional discrimination under Title VII prohibits certain motives
, regardless of the actor’s knowledge, distinguishing between the two concepts. What matters is whether the employer is motivated by an unlawful purpose. The Court further noted that Title VII imposes no knowledge requirement unlike some federal anti-discrimination statutes, such as the Americans with Disabilities Act. The Court acknowledged in a footnote that arguably the motive requirement would not be met unless the employer suspects that the practice in question is for religious reasons. But it sidestepped that issue, finding it was not presented in this case because Abercrombie either knew or suspected that Elauf wore the headscarf because of her religion. The Court emphatically refused to read a knowledge requirement into the statute, concluding “We construe Title VII’s silence as exactly that: silence.”
Justice Samuel Alito concurred in the judgment because he believed that there was sufficient evidence that Abercrombie was aware that Elauf wore the headscarf for religious reasons. He wrote separately to state that he would hold that Title VII imposes a requirement that the employer know that the conduct constitutes a religious practice. Such a requirement was obviously necessary to avoid what Justice Alito termed as strange results. He reasoned that it would be absurd for liability to attach where an employer’s adverse action occurs without any knowledge that the applicant’s practice is religious in nature, since the point of anti-discrimination law is to punish the “blameworthy conduct” of intentional discrimination, and without knowledge there can be no international discrimination. In dissent, Justice Clarence Thomas took issue with the majority’s position and wrote that, while intentional discrimination could occur where an employer refuses to make a religious accommodation while providing for a secular accommodation, “merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant ‘less favorably than others.’”
Given the inherent power and information imbalances between applicants and potential employers, the Supreme Court’s decision removes applicants from the untenable position of having to discern whether they need to request an accommodation for their religious practices without full knowledge of employers’ workplace policies. The Court’s decision also avoids the nonsensical outcome of shielding employers from liability in situations in which they intentionally discriminate on the basis of an unconfirmed suspicion that an applicant would require a religious accommodation. Employers cannot now evade liability for Title VII violations merely by failing to confirm their suspicions that an applicant may require a religious accommodation. By making clear that motive matters, employers can be held liable for discrimination by implementing seemingly neutral policies.
Read the decision#Amicus #USSupremeCourt #TitleVII #ReligiousDiscrimination