In 2008, Oklahoma teenager Samantha Elauf applied for a job as a salesperson at retail giant Abercrombie & Fitch. Elauf is a devout Muslim who believes that her religion requires her to wear a headscarf. But the company has a dress code that prohibits its employees from wearing – among other things – “caps.” When Abercrombie didn’t hire Elauf, and a company employee indicated that the rejection was attributable to the headscarf, she went to the Equal Employment Opportunity Commission, which filed a lawsuit on her behalf.   A lower court ruled for Abercrombie, reasoning that it could not be held liable because Elauf had not specifically said that she was wearing the scarf for religious reasons. Yesterday, the Supreme Court reversed that ruling – yet another in a series of victories for religious rights at the Roberts Court.

Delivering the Court’s opinion yesterday morning, Justice Antonin Scalia described the case as a “really easy” one. The Court rejected Abercrombie’s argument that someone like Elauf cannot show that she was the victim of discrimination unless she can demonstrate that the employer had “actual knowledge” that she was wearing the scarf for religious reasons and would need the store to accommodate her. Instead, the Court ruled that Elauf only has to show that her need for Abercrombie to accommodate her religious beliefs was a “motivating factor” in its decision not to hire her.

The Court reasoned that the federal law at issue in this case, Title VII of the Civil Rights Act of 1964, bars employers from refusing to hire someone “because of” her religion, which includes religious observances. And in the context of this law, the Court continued, the phrase “because of” requires only that “an individual’s actual religious practice . . . not be a motivating factor” behind the failure to hire her. There is no requirement that the employer actually know that there could be “a conflict between an applicant’s religious practice and a work rule.” Indeed, the Court emphasizes, although other antidiscrimination statutes do explicitly require knowledge, Title VII does not. Therefore, reading the statute to include a knowledge requirement would “ask[] us to add words to the law to produce what is thought to be a desirable result.” And that, the Court made clear, “is Congress’s province.” (Whether this reasoning will re-surface in the Court’s decision in King v. Burwell, the Affordable Care Act subsidies case, remains to be seen, but it seems likely that at least some members of the Court will echo this sentiment in that case.)

The Court was similarly dismissive of the store’s alternative argument that it could not have intentionally discriminated against Elauf because its “no headwear” policy applies to everyone, regardless of her religion. Title VII, the Court explained, doesn’t require the employer to be neutral when it comes to religious practices. Instead, the law gives religious practices “favored treatment,” which means that policies which would otherwise be neutral must “give way to the need for an accommodation” of an applicant’s religious practices.

Justice Samuel Alito wrote his own opinion in which he agreed with the result in the case – reversing the decision below. But he did not agree with the reasoning that the majority used to reach that result. Unlike the majority, he believes that Abercrombie can be held liable for rejecting Elauf only if it knew that she was wearing her headscarf for religious reasons. Because there is “ample evidence” in this case that it did, he concluded, the lower court was wrong to rule in Abercrombie’s favor on the ground that it was Elauf’s responsibility to convey that information to the company.

Justice Clarence Thomas – a former chairman of the EEOC — was the lone dissenter today. He would have let the lower court’s decision in favor of Abercrombie stand because, in his view, the company can be held liable for failing to hire Elauf only if it intentionally discriminated against her. And that is not possible, he argues, because the retailer simply applied the same neutral policy prohibiting hats and other head coverings to Elauf that it applied to everyone else who applies for a job.

Posted in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Plain English / Cases Made Simple, Featured, Merits Cases

Recommended Citation: Amy Howe, Victory for religious rights in the workplace: In Plain English, SCOTUSblog (Jun. 2, 2015, 11:21 AM), http://www.scotusblog.com/2015/06/victory-for-religious-rights-in-the-workplace-in-plain-english/