Samantha Elauf, denied a sales job at an Abercrombie Kids store in Tulsa in 2008, victorious before the Supreme Court today.
Samantha Elauf is a practicing Muslim who wore her hijab to her employment interview with Abercrombie & Fitch. She was qualified for the job, but the store's assistant manager was concerned that Elauf’s hijab would conflict with the store’s Look Policy, which says that "caps" aren't A&F-approved. She told the district manager that she believed Elauf wore her headscarf because of her faith; district manager Randall Johnson responded that her headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire her.
The EEOC sued A&F on Elauf’s behalf, because under Title VII a prospective employer cannot refuse to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. They won, with the trial court awarding $20,000 in damages. The question before the Supreme Court today was whether A&F had to actually know that Elauf needed to wear the hijab as part of her religious practices, or whether it was sufficient that the job applicant show that her need for an accommodation was a motivating factor in the employer’s decision.
And, I'm delighted to say, the Supreme Court agreed with Elauf today in an 8-1 decision written by Justice Scalia. I'll summarize the short decision below the fold.
Majority includes everyone but Alito and Thomas. Justice Scalia writes:
Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.
The disparate-treatment provision forbids employers to: (1) “fail . . . to hire” an applicant (2) “because of” (3) “such individual’s . . . religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf’s wearing of a headscarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of” her religious practice.
The term “because of” appears frequently in antidiscrimination laws. It typically imports, at a minimum, the traditional standard of but-for causation. Title VII relaxes this standard, however, to prohibit even making a protected characteristic a “motivating factor” in an employment decision. 42 U. S. C. §2000e–2(m). “Because of” in §2000e–2(a)(1) links the forbidden consideration to each of the verbs preceding it; an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on....
Thus, 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. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.
And because Elauf could be accommodated, A&F loses:
Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. 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 and practice.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.
Justice Alito, as is his wont, kinda-sorta agrees, but would handle it differently:
I would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason. If §2000e–2(a)(1) really “does not impose a knowledge requirement,” it would be irrelevant in this case whether Abercrombie had any inkling that Elauf is a Muslim or that she wore the headscarf for a religious reason. That would be very strange.
The scarves that Elauf wore were not articles of clothing that were designed or marketed specifically for Muslim women. Instead, she generally purchased her scarves at ordinary clothing stores. In this case, the Abercrombie employee who interviewed Elauf had seen her wearing scarves on other occasions, and for reasons that the record does not make clear, came to the (correct) conclusion that she is a Muslim. But suppose that the interviewer in this case had never seen Elauf before. Suppose that the interviewer thought Elauf was wearing the scarf for a secular reason. Suppose that nothing else about Elauf made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason. If “§2000e–2(a)(1) does not impose a knowledge requirement,” Abercrombie would still be liable. The EEOC, which sued on Elauf’s behalf, does not adopt that interpretation, and it is surely wrong.
... In sum, the EEOC was required in this case to prove that Abercrombie rejected Elauf because of a practice that Abercrombie knew was religious. It is undisputed that Abercrombie rejected Elauf because she wore a headscarf, and there is ample evidence in the summary judgment record to prove that Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a religious reason. The Tenth Circuit therefore erred in ordering the entry of summary judgment for Abercrombie. On remand, the Tenth Circuit can consider whether there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge. The Tenth Circuit will also be required to address Abercrombie’s claim that it could not have accommodated Elauf’s wearing the headscarf on the job without undue hardship.
Justice Thomas, on the other hand, would have found for A&F, believing they had no obligation to accommodate Muslim job applicants under its policies:
I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf’s religious practice of wearing a headscarf. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged 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. Because I cannot classify Abercrombie’s conduct as “intentional discrimination,” I would affirm.
...I do not dispute that a refusal to accommodate can, in some circumstances, constitute intentional discrimination. If an employer declines to accommodate a particular religious practice, yet accommodates a similar secular (or other denominational) practice, then that may be proof that he has “treated a particular person less favorably than others because of [a religious practice].” But 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.” The majority itself appears to recognize that its construction requires something more than equal treatment. But equal treatment is not disparate treatment, and that basic principle should have disposed of this case.
SCOTUSblog has the case documents.