<b><i>BREAKING NEWS:</b></i> High Court Revives Religious Bias Case Against Abercrombie

Scalia wrote:

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.

Scalia was joined by Chief Justice John Roberts Jr. and justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Samuel Alito Jr. Alito filed a concurring opinion agreeing with the outcome, but writing that the Equal Employment Opportunity Commission, which brought the case, should have to prove that Abercrombie rejected Elauf's application because it knew about her religious practice. He said the evidence in this case seemed to weigh against Abercrombie.

Justice Clarence Thomas dissented, writing that Abercrombie's application of a 'neutral' policy prohibiting 'caps' did not meet the standard for 'intentional discrimination.'

'Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf's religious practice of wearing a headscarf,' Thomas wrote. 'In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices.'

The case stemmed from Abercrombie & Fitch's decision not to hire Elauf, who in 2008 applied for a job while wearing a religious headscarf, or hijab. The headscarf was not permitted under the company's “look” policy, or dress code, and Elauf would have needed an accommodation.

Title VII of the Civil Rights Act of 1964 prohibits job discrimination on the basis of religious beliefs and practices. It is an unlawful employment practice to fail to reasonably accommodate such beliefs or practices unless doing so would inflict an undue hardship on the business.

The battle in the high court was over who must make the first move when religion might be an issue ' the employer, or the employee or job applicant.

The Tenth Circuit said the burden falls on the job applicant or employee. Because Elauf did not make her religious beliefs known, that court reversed a district court's finding that Abercrombie was liable, and also reversed jury damages of $20,000.

The Tenth Circuit's rule conflicted with the approach taken by the Seventh, Eighth, Ninth and Eleventh circuits. And, the government contended, under the Tenth Circuit rule, employers could escape liability for religious discrimination by remaining silent about their work policies to job applicants or their reasons for firing someone.

During arguments in February, the justices appeared reluctant to give employers the greater protection provided by the Tenth Circuit's approach.

Principal deputy solicitor general Ian Gershengorn told the justices that Congress, in Title VII, intended to initiate a dialogue with an applicant or employee once the employer assumes, understands or perceives that a religious accommodation is needed.

“The employer needs sufficient information from any source,” he said. “The critical point here for us is, if the employer had not assumed that this was religious, had not believed it, they would have hired her. The default rule for 'I'm not sure,' is hire.'

But his opponent, Jones Day's Shay Dvoretzky, arguing for Abercrombie, called the EEOC's approach “unadministrable” for employers. “What level of knowledge does the employer have to have” to begin a dialogue about a religious accommodation, he asked. “The EEOC doesn't say what level of belief or certainty is required.”

Religious and civil rights organizations as well as a number of states filed amicus briefs supporting the EEOC. Abercrombie drew support from the National Conference of State Legislatures, the U.S. Chamber of Commerce, Cato Institute and other business groups.

Zoe Tillman and Marcia Coyle write for Legal Times, an ALM sibling to this newsletter.

The U.S. Supreme Court on June 1 revived a discrimination lawsuit that accused Abercrombie & Fitch Co. of refusing to hire a Muslim woman because she wore a religious headscarf.

Federal civil rights law protects job applicants from religious discrimination regardless of whether an applicant put the employer on notice of his or her need for an accommodation'in this case, petitioner Samantha Elauf's need to wear the headscarf ' Justice Antonin Scalia wrote in the 8-1 decision in'Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., No. 14-86 (June 1, 2015).

A job applicant alleging discrimination 'need only show that his need for an accommodation was a motivating factor in the employer's decision,' Scalia wrote. The court reversed the U.S. Court of Appeals for the Tenth Circuit, which said that it was a job applicant or employee's responsibility to provide notice to an employer.

Scalia wrote:

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.

Scalia was joined by Chief Justice John Roberts Jr. and justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Samuel Alito Jr. Alito filed a concurring opinion agreeing with the outcome, but writing that the Equal Employment Opportunity Commission, which brought the case, should have to prove that Abercrombie rejected Elauf's application because it knew about her religious practice. He said the evidence in this case seemed to weigh against Abercrombie.

Justice Clarence Thomas dissented, writing that Abercrombie's application of a 'neutral' policy prohibiting 'caps' did not meet the standard for 'intentional discrimination.'

'Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf's religious practice of wearing a headscarf,' Thomas wrote. 'In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices.'

The case stemmed from Abercrombie & Fitch's decision not to hire Elauf, who in 2008 applied for a job while wearing a religious headscarf, or hijab. The headscarf was not permitted under the company's “look” policy, or dress code, and Elauf would have needed an accommodation.

Title VII of the Civil Rights Act of 1964 prohibits job discrimination on the basis of religious beliefs and practices. It is an unlawful employment practice to fail to reasonably accommodate such beliefs or practices unless doing so would inflict an undue hardship on the business.

The battle in the high court was over who must make the first move when religion might be an issue ' the employer, or the employee or job applicant.

The Tenth Circuit said the burden falls on the job applicant or employee. Because Elauf did not make her religious beliefs known, that court reversed a district court's finding that Abercrombie was liable, and also reversed jury damages of $20,000.

The Tenth Circuit's rule conflicted with the approach taken by the Seventh, Eighth, Ninth and Eleventh circuits. And, the government contended, under the Tenth Circuit rule, employers could escape liability for religious discrimination by remaining silent about their work policies to job applicants or their reasons for firing someone.

During arguments in February, the justices appeared reluctant to give employers the greater protection provided by the Tenth Circuit's approach.

Principal deputy solicitor general Ian Gershengorn told the justices that Congress, in Title VII, intended to initiate a dialogue with an applicant or employee once the employer assumes, understands or perceives that a religious accommodation is needed.

“The employer needs sufficient information from any source,” he said. “The critical point here for us is, if the employer had not assumed that this was religious, had not believed it, they would have hired her. The default rule for 'I'm not sure,' is hire.'

But his opponent, Jones Day's Shay Dvoretzky, arguing for Abercrombie, called the EEOC's approach “unadministrable” for employers. “What level of knowledge does the employer have to have” to begin a dialogue about a religious accommodation, he asked. “The EEOC doesn't say what level of belief or certainty is required.”

Religious and civil rights organizations as well as a number of states filed amicus briefs supporting the EEOC. Abercrombie drew support from the National Conference of State Legislatures, the U.S. Chamber of Commerce, Cato Institute and other business groups.

Zoe Tillman and Marcia Coyle write for Legal Times, an ALM sibling to this newsletter.