Justices Revive EEOC Suit for Applicant Denied Sales Job for Wearing Head Scarf

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Kevin McGowan

June 1 — An employer may be liable for religious discrimination under Title VII of the 1964 Civil Rights Act for failure to accommodate a job applicant's religious observance even if the employer lacks actual knowledge of a conflict between a religious practice and the job's requirements, the U.S. Supreme Court ruled June 1.

In an 8-1 decision, the justices reversed a U.S. Court of Appeals for the Tenth Circuit decision that the Equal Employment Opportunity Commission failed to raise a religious bias claim against Abercrombie & Fitch Stores Inc., based on the retailer's rejection of a female applicant who wore a Muslim head scarf, or hijab, to her 2008 job interview for a sales position (731 F.3d 1106, 120 FEP Cases 212 (10th Cir. 2013)).

In holding Abercrombie & Fitch entitled to summary judgment, the Tenth Circuit said the EEOC must show an employer had actual knowledge of the religious conflict and that applicant Samantha Elauf's failure to tell Abercrombie she wore the head scarf for religious reasons or needed an accommodation absolved the company of any liability.

Writing for the Supreme Court, however, Justice Antonin Scalia said to prevail on a disparate treatment religious bias claim under Title VII, a job applicant need only show her need for accommodation was a motivating factor in the employment decision, not that the employer had actual knowledge.

The EEOC raised a triable issue that Abercrombie in rejecting Elauf for employment was motivated by her wearing of the head scarf and its assumption that she might need an accommodation, even if Elauf didn't tell the employer why she was wearing the hijab or request accommodation, the court said.

Title VII “prohibits actions taken with the motive of avoiding the need for accommodating religious practices,” Scalia wrote. “A request for accommodation, or the employer's certainty that the practice exists, may make it easier to infer motive, but it is not a necessary condition of liability.”

In dissent, Justice Clarence Thomas said Abercrombie's neutral application of its “look policy,” which forbade sales employees from wearing “caps,” can't support an intentional discrimination claim.

“The court rightly puts to rest the notion that Title VII creates a freestanding religious-accommodation claim, but creates in its stead an entirely new form of liability: the disparate treatment based on equal treatment claim,” Thomas wrote. “Because I do not think that Congress's 1972 redefinition of ‘religion' also redefined ‘intentional discrimination,' I would affirm the judgment of the Tenth Circuit.”

EEOC, Religious Rights Groups Applaud Ruling 

The EEOC, religious freedom organizations and civil rights groups lauded the decision.

The court affirmed that “employers may not make an applicant's religious practice a factor in employment decisions,” EEOC Chair Jenny Yang said in a June 1 statement. “The ruling protects the rights of workers to equal treatment in the workplace without having to sacrifice their religious practices or beliefs.”

“At its root, this case is about defending the quintessentially American principle of religious freedom and tolerance,” said EEOC General Counsel P. David Lopez. He called the decision “a victory for our increasingly diverse society” and hailed Elauf for her “courage and tenacity” in pursuing the seven-year-old case.

“We commend the court for making clear that an employer may not consider an applicant’s religious practices or observances—known or otherwise—in employment decisions,” said Rachel Laser, deputy director of the Religious Action Center for Reform Judaism in Washington.

The Jewish reform organization had joined in an amicus brief with the American Jewish Congress and other religious and individual rights groups in supporting the EEOC.

“As Jews, we have historically known the insidious nature of religious discrimination—including workplace discrimination,” Laser said in a June 1 statement. “The recent climate of Islamophobia further highlights the importance and significance of this decision. In deciding for the EEOC, the Supreme Court demonstrates that no one should face discrimination because of their faith.”

The decision “really underscores” that an individual's religious belief or practice “can't play any role” in an employment decision, said William Burgess, an attorney for the Council on American-Islamic Relations in Washington, which filed an amicus brief supporting the EEOC.

The court appropriately focused on motivation and found an employer may violate Title VII when it avoids the issue of accommodating an applicant's religious observance, even if it's just from a desire not to change corporate policy, Burgess told Bloomberg BNA June 1.

The decision is particularly helpful for Muslims and members of other faiths who display their religion openly, Burgess said.

Title VII requires “the process of working out a compromise” between the employer and individual when a conflict arises between religious observance and the job, Burgess said. “It's a legal obligation,” he said.

Abercrombie announced in April it was ending its “look policy,” which has come under attack over the years in multiple discrimination cases. Burgess applauded the company's decision, but said it doesn't end the EEOC's case. The agency on remand will be seeking damages for Elauf for Abercrombie's alleged Title VII violation, he said.

A federal district court in Tulsa, Okla., had granted summary judgment to the EEOC on liability and a jury returned $20,000 in damages to Elauf. But the Tenth Circuit reversed in a 2-1 decision, ruling Abercrombie was entitled to summary judgment. The Supreme Court last year agreed to review the case. The justices heard oral argument in February.

Training Is Key, Employers Say

The court's result isn't a shock to employers, but that Scalia wrote such a “definitive” majority opinion is a bit surprising, said Lucretia Clemons, a management attorney with Ballard Spahr in Philadelphia.

The decision aligns with what employment lawyers have been telling their clients for years, that potential conflicts between religious practice and work rules should be discussed with the aim of reaching accommodation, Clemons told Bloomberg BNA June 1.

Employers can do so by including notifications about their appearance policies, for example, in the employment application and asking the applicant in the form if there's any reason she wouldn't be able to comply, Clemons said. If an applicant states a conflict exists, that issue should be noted for a referral to human resources, but the job interview should continue, Clemons said.

After the Supreme Court's decision, she said, employers must focus on training for their hiring managers and HR personnel on how to respond properly when a religious conflict arises.

In addition to employee appearance policies, an employer's rules regarding scheduling, mandatory overtime or break policies are areas in which religious conflicts can emerge, Clemons said.

It's interesting Scalia rejected Abercrombie's argument that the EEOC's claim should be analyzed as disparate impact, given Scalia's dissent earlier this term in Young v. United Parcel Service Inc., 126 FEP Cases 765 (U.S. 2015), in which he took the court to task for creating a disparate treatment claim under the Pregnancy Discrimination Act when disparate impact was indicated, Clemons said.

But in contrast to the pregnancy bias claim in Young, Scalia said religion has “favored” status under Title VII, Clemons said.

Abercrombie's argument “that a neutral policy cannot constitute ‘intentional discrimination' may make sense in other contexts,” Scalia wrote for the majority.

“But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices,” Scalia wrote. “Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual ... because of such individual's' religious observance or practice.' ”

Title VII “requires otherwise-neutral policies to give way to the need for an accommodation,” Scalia wrote.

No ‘Sweeping Change' in Title VII Law 

The decision “certainly could have been much worse” from an employer's perspective, said Rae Vann of Norris Tysse Lampley & Lakis in Washington, who is general counsel for the Equal Employment Advisory Council, which filed an amicus brief for Abercrombie.

The court's ruling that an employer under Title VII can't make an individual's known or suspected need for religious accommodation a factor in an employment decision “is not a ground-breaking revelation,” Vann told Bloomberg BNA June 1.

The court's decision doesn't make “a sweeping change” in Title VII law, Vann said.

It's important that the majority confirmed that the burden of persuasion remains at all times on the plaintiff asserting religious discrimination, Vann said. She cited footnote two, in which Scalia wrote that “of course” it's the plaintiff's burden to prove failure to accommodate.

The court rejected “the much broader standard” the EEOC was seeking, which would effectively have required employers to ask applicants about their religion “off the bat,” Vann said.

To the extent the court is saying an employer can't use potential religious accommodation as a reason to disqualify an applicant, Vann said that's nothing new under Title VII.

As for the knowledge requirement, Vann said as a practical matter, a religious discrimination plaintiff will have to show an employer knew or at least suspected religion was involved in order to make her Title VII case.

Although Thomas in dissent warned the court is approaching “strict liability” for employers in Title VII religion cases, Vann said she doesn't read the majority opinion as going that far.

Religion Can't Be Motivating Factor 

In ruling for the EEOC, the Supreme Court reaffirmed that Title VII claims are divided into two categories, “disparate treatment” and “disparate impact.” The agency's claims for Elauf fit into the disparate treatment category, the court said.

Abercrombie argued that a job applicant can't show intentional bias based on religion without first showing the employer had “actual knowledge” of the applicant's need for accommodation.

But the court disagreed, saying an applicant need only show her need for accommodation was “a motivating factor” in the employer's decision. Title VII's disparate treatment provision bars employers from failing to hire an applicant “because of” religion, which includes religious practice or observance, the court said.

Abercrombie failed to hire Elauf based on her wearing the heard scarf, which the parties concede is a religious practice, the court said. So the only issue is whether Elauf wasn't hired “because of” her religious practice, the court said.

Construing Title VII's text, Scalia said “because of” in 42 U.S.C. § 2000e-2(a)(1) means the act prohibits making religion a “motivating factor” in an employment decision, which is an inquiry separate from the employer's actual knowledge.

“It is significant that §2000e-2(a)(1) does not impose a knowledge requirement,” Scalia wrote. By contrast, the Americans with Disabilities Act requires employers to make reasonable accommodations for the “known” physical or mental limitations of an applicant, the court said. “Title VII contains no such limitation,” Scalia wrote.

Instead, Title VII's intentional discrimination provision “prohibits certain motives, regardless of the state of the actor's knowledge,” the court said. Motive and actual knowledge are “separate concepts” and an employer may have an improper motive even if it's uncertain why an applicant is wearing certain garb, the court said.

“[A]n employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed,” Scalia wrote.

Tenth Circuit Rule Rejected 

Abercrombie urged the court to adopt the Tenth Circuit's rule for “allocating the burden” of raising a religious conflict that triggers Title VII's religion provision. That approach would require an employer to have “actual knowledge” of a conflict between an applicant's religious practice and a work rule before any duty to accommodate arises.

“The problem with this [Tenth Circuit] approach is the one that inheres in most incorrect interpretations of statutes,” Scalia wrote. “It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress's province.”

Instead, the court said it reads Title VII's “silence” regarding a knowledge requirement as “exactly that: silence.”

Title VII bars employer actions taken with the motive of avoiding the need to accommodate religion, the court said. “A request for accommodation, or the employer's certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability,” Scalia wrote.

Alternatively, Abercrombie argued that a Title VII claim based on failure to accommodate religion must be raised as a disparate impact claim. The company said the EEOC essentially is arguing the retailer's application of a neutral rule—its prohibition on sales employees wearing headgear—had a disproportionate adverse impact on Muslims such as Elauf.

But the court disagreed that the EEOC's claim necessarily involves disparate impact, which can be more difficult for plaintiffs to prove.

“That might have been true if Congress had limited the meaning of ‘religion' in Title VII to religious belief—so that discriminating against a particular religious practice would not be disparate treatment though it might have disparate impact,” Scalia wrote.

But Congress instead defined religion as “including all aspects of religious observance and practice, as well as belief,” the court said, citing 42 U.S.C. § 2000e(j), which was part of the 1972 amendments to Title VII.

“Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated,” the court said.

Scalia then discussed the “favored treatment” Title VII gives to religious practices. Even an employer's “otherwise-neutral policies” must give way to the need for religious accommodation, the court said.

In a concurring opinion, Justice Samuel Alito would hold an employer can't be held liable under Title VII for taking an adverse action because of an applicant's religious practice unless the employer knows the applicant engages in the practice for a religious reason.

But since the EEOC produced “ample evidence” Abercrombie possessed such knowledge, Alito said he joins in reversing the Tenth Circuit and remanding the case.

No Disparate Treatment, Dissent Says 

In dissent, Thomas said under the “settled” meaning of intentional discrimination in Title VII and its case law, Abercrombie's refusal to “create an exception” for Elauf from its “neutral look policy” can't be deemed disparate treatment.

Although the look policy's effects may “fall more harshly” on individuals wearing head scarves as part of their faith, Thomas said that raises “a classic case of disparate impact.”

“It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company's Look Policy,” the dissent said. “Because I cannot classify Abercrombie's conduct as intentional discrimination, I would affirm.”

The majority's “expansive reading” of Title VII disparate treatment threatens to spawn a “strict-liability view” for employers “that is plainly at odds with the concept of intentional discrimination,” Thomas wrote.

The decision also is inconsistent with the history of Title VII's religious accommodation provision, which the courts and the EEOC traditionally haven't treated as a disparate treatment claim, the dissent said.

Solicitor General Donald B. Verrilli and Ian H. Gershengorn of the Justice Department in Washington represented the EEOC. Shay Dvoretzky of Jones Day in Washington and Mark A. Knueve of Vorys Sater Seymour & Pease LLP in Columbus, Ohio, represented Abercrombie & Fitch.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the decision is available at http://www.bloomberglaw.com/public/document/EEOC_v_Abercrombie__Fitch_Stores_No_1486_2015_BL_171330_US_June_0.