June 1, 2015

ABERCROMBIE LOSES RELIGIOUS DISCRIMINATION SUIT: The Supreme Court ruled today in favor of a Muslim young woman who was denied a job at an Abercrombie store because she wore a hijab, thus violating the store’s “look policy” for salespersons, which prohibited the wearing of any caps or other head coverings.  The policy violated the 1964 Civil Rights Act, which prohibits discrimination based on race, color, religion, sex or national origin.

Justice Scalia, writing for a 7-Justice majority (Justice Alito concurred separately in the judgment but didn’t join the majority), concluded:

Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an 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.

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.

Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence. Its disparate treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.

Justice Clarence Thomas was the sole dissenter, concluding:

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 think Justice Thomas has the better argument here, as Abercrombie’s policy did not appear to be motivated by intentional discrimination against Muslims or any other religion.  Such neutral policies should be presumptively not discriminatory absent strong evidence to the contrary.  But the Court has been very protective of religious exercise in recent cases (both constitutional and statutory), and this decision’s rationale can be extended to provide more robust protection for all religions, not just Muslims. Employers, however, will likely be more constrained in their ability to impose dress restrictions (hair; facial hair; clothing) that disproportionately impact certain religions, as it will be argued that their dress policy “motivates” an adverse employment action, because they don’t want to “accommodate” a person who doesn’t satisfy their policy.

InstaPundit is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.