SCOTUS rules against Abercrombie & Fitch in Muslim headscarf case

In his dissenting opinion, Thomas stated mere application of a neutral policy cannot constitute ‘intentional discrimination’

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WASHINGTON – The U.S. Supreme Court ruled in favor of the Equal Employment Opportunity Commission (EEOC) on Monday, overturning the 10th Circuit Court of Appeals judgment in favor of Abercrombie & Fitch Stores, Inc., in a case brought on behalf of Samantha Elauf, a practicing Muslim who was refused employment because her headscarf violated Abercrombie’s dress policy.

The opinion of the court was delivered by Justice Antonin Scalia, which was joined by Chief Justice John Roberts and justices Anthony Kennedy, Ruth Bader Ginsberg, Sonia Sotomayor, Stephen Breyer and Elena Kagan. Justice Samuel Alito issued his own concurring opinion while Justice Clarence Thomas filed an opinion concurring in part and dissenting in part.

The EEOC prevailed in U.S. District Court but the decision was overturned on appeal, with the 10th Circuit awarding Abercrombie summary judgment based on failure-to-accommodate liability only being applicable upon the applicant providing the employer with actual knowledge of his need for an accommodation.

Citing Title VII of the Civil Rights Act of 1964, which prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, the court said the question presented was whether the prohibition applies only where an applicant has informed the employer of his need for accommodation.

Abercrombie operates clothing stores, each with its own “style” and imposes a “Look Policy” to govern how its employees dress.

The policy prohibits “caps,” which it fails to define, as an image too informal for its line of clothes.

When Elauf interviewed for a position, she was given a rating that would qualify her to be hired. However, Assistant Manager Heather Cooke was concerned Elauf’s headscarf might conflict with the store’s Look Policy.

Cooke asked the store manager if Elauf’s headscarf violated the “cap” policy, but received no answer.

Cooke then turned to District Manager Randall Johnson for guidance.

Johnson advised Cooke the headscarf, just like any other headwear, religious or otherwise, would violate the Look Policy and directed Cooke not to hire Elauf.

Elauf filed a complaint with the EEOC, which sued Abercrombie on her behalf, claiming its refusal to hire Elauf violated Title VII.

While Abercrombie argued Elauf couldn’t show disparate treatment without first showing the employer had actual knowledge of her need for an accommodation.

The court disagreed and stated Elauf only needed to show her need for an accommodation was a motivating factor in Abercrombie’s decision not to hire her.

The disparate treatment provision of the law forbids employers to fail to hire an applicant because of such individual’s religion, including his religious practice.

Alito, explaining his concurrence in simplified terms, wrote, “An employer may not take an adverse employment action against an applicant or employee because of any aspect of that individual’s religious observance or practice unless the employer demonstrates that it is unable to reasonably accommodate that observance or practice without undue hardship.”

He stated Elauf wore her headscarf when she interviewed for a job and was rejected because her headscarf violated the employee dress code.

According to Alito, there was sufficient evidence in the summary judgment record to support a finding that Abercrombie’s decisionmakers knew Elauf was a Muslim and she wore the headscarf for a religious reason.

However, she was never asked why she wore the headscarf, she never volunteered that information, nor was she told she would be prohibited from wearing it on the job.

Alito stated the provision of the law that prohibits intentional discrimination because of religious practices is intended to force employers to consider whether those practices can be accommodated without undue hardship.

Alito stated, “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,” and, therefore, the 10th Circuit erred in ordering the entry of summary judgment for Abercrombie.

He said the 10th Circuit will need to determine on remand if there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge and address Abercrombie’s claim that it could not have accommodated Elauf’s wearing the headscarf on the job without undue hardship.

Thomas stated he agreed with the court that there were two and only two causes of action under Title VII of the Civil Rights Act of 19634 as understood by their precedents: a disparate-treatment (or intentional-discrimination) claim and a disparate-impact claim, but that their agreement ended there.

In his dissenting opinion, Thomas stated, “Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute ‘intentional discrimination.’ Because the EEOC can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the 10th Circuit.”

Thomas considered Abercrombie’s dress code policy prohibiting headwear a facially neutral employment practice without evidence Abercrombie was intentionally discriminating.

Thomas stated, “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.”

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