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SCOTUS Notes #5 – EEOC v. Abercrombie & Fitch
The fifth case in this series is a religious discrimination case brought by the federal Equal Employment Opportunity Commission (EEOC) against retail clothier Abercrombie & Fitch (A&F). The case involved a Muslim woman, Samantha Elauf, who claimed that A&F declined to hire her because she wore a headscarf for religious reasons which would have violated A&F’s dress code. SCOTUS ruled in Elauf’s favor by an 8-1 margin.
The technical question presented to SCOTUS was narrow. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fail to hire an applicant because of his or her religion. The issue was whether an employer could violate this provision without “actual knowledge” of the applicant’s religion.
Background
Due to the procedural posture of the case — a decision on “summary judgment” — SCOTUS viewed the facts of the case in the light most favorable to the EEOC and Elauf. This means that the facts may be disputed in further proceedings, but there is adequate evidence to support the following account.
Elauf applied for a position at an A&F store. She wore a headscarf, consistent with her understanding of the requirements of her Muslim religion. The store assistant manager (Cooke) interviewed her, and gave her a score qualifying her to be hired. Elauf did not tell Cooke that she wore the headscarf for religious reasons, and Cooke did not ask.
Cooke was concerned that Elauf’s headscarf would violate A&F’s dress code which — among other things — prohibited employees from wearing a “cap.” Cook ultimately asked the A&F district manager (Johnson) whether the headscarf was prohibited, and Cooke told Johnson that she believed that Elauf wore the headscarf because of her faith. Johnson told Cooke that Elauf’s headscarf would violate the dress code, and directed Cooke not to hire her.
Technically, the EEOC prosecuted the case on Elauf’s behalf, so Elauf was not a named plaintiff. This is one of the EEOC’s options when a claim is filed and the EEOC finds that it has merit.
The District Court (in which the case was originally brought) actually entered summary judgment in favor of the EEOC and Elauf, then held a trial on damages and awarded $20,000. The Tenth Circuit Court of Appeals reversed, holding that an employer cannot be held liable for failing to accommodate a religious practice absent proof that the employer had “actual knowledge” of the applicant’s need for an accommodation.
Opinion of the Court
Scalia wrote the opinion of the Court, joined by the Chief (Roberts), Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.
Prior cases had interpreted the applicable portion of Title VII as making an employer’s decision not to hire unlawful if the applicant’s religion (including religious practice) was a “motivating factor” in the decision. Here, A&F declined to hire Elauf because it believed that she wore a headscarf for religious reasons, and that such headscarf would violate A&F’s dress code. The majority characterized this as an issue of motive rather thank knowledge.
Concurring and Dissenting Opinions
Alito wrote a separate opinion concurring in the judgment, so the overall decision was 8-1. He concluded that there should be a knowledge requirement, but that the evidence was sufficient to establish it in the present case for summary judgment purposes.
Thomas dissented; technically, he “concurred in part,” but only in a very small part, and his overall opinion was that A&F should have won. His view was that application of a neutral policy cannot constitute “intentional discrimination.”
Interestingly, this means that Thomas would essentially apply the standard adopted by Scalia’s majority opinion in Employment Division v. Smith (the peyote case), for religious discrimination under the First Amendment, in the Title VII context. It was the Smith decision that led Congress to adopt the Religious Freedom Restoration Act (RFRA), which has been in the news recently after Indiana adopted a similar statute.
Comments
I agree with the majority opinion in this case. A&F declined to hire Elauf because it believed — correctly, as it turned out — that she wore a headscarf for religious reasons, and that hiring her would therefore require A&F to accommodate a violation of its dress code.
An interesting question is whether SCOTUS would have reached the same result if A&F had incorrectly believed that Elauf wore a headscarf for religious reasons — say if Elauf were an athiest, or a Catholic, who wore a headscarf for purely secular (say fashion) reasons. What do you think? I think that Elauf would have lost in this hypothetical, because her religion would not, in fact, have been a “motivating factor” in A&F’s decision not to hire her.
This case is a good example of a significant “bipartisan” majority on the Court. Such majorities are quite common. Most cases are not decided 5-4.
As a policy matter, I question the wisdom of this anti-discrimination or any anti-discrimination statute. Not that I like the idea of discrimination on the basis of religion, or race/ethnicity, or sex, but rather that there are two significant costs to such laws: (1) violation of freedom of association in general, and (2) the serious cost of false, frivolous, or dubious claims.
Published in Law
If A&F was wrong about Elauf’s faith and the reason for insisting on wearing a headscarf, she could not prove the elements of a prima facie case of religious discrimination. See, e.g., Tepper v. Potter, 505 F.3d 508, 514 (6th Cir.2007)(“To establish a prima facie case, [a plaintiff] must show that `(1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflict; and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement.'”
Except that the EEOC v. A&F case implicitly overruled point (2) of Tepper. SCOTUS ruled in favor of Elauf’s claim even though she had not informed the employer.
I agree with you that, in the hypothetical of Elauf not wearing a headscarf for religious reasons, her claim would fail under point (1) of Tepper. But Tepper remains in doubt after A&F, and the A&F decision focused heavily on the employer’s motive.
Yes, but according to the court’s majority opinion in Elauf what matters isn’t actually Elauf’s religion, but the motivation of the employer:
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…
All that’s necessary for the action of the employer to be in violation is for the employer to a) start thinking about religious accommodations, and b) make a decision that they don’t want to have to make such an accommodation. Presumably in a mistaken-identity case, the issue could be settled by a correction of the factual record.
A well done summary – thanks. I’d been meaning to read the case but hadn’t gotten around to it yet. Also a good reminder that all the progressives who hated the Hobby Lobby decision actually agree with Scalia’s position. The ones I’ve mentioned it to have been horrified.
AZ -As you acknowledge, all that Elauf changes is the second element of a prima facie case. As you also seem to admit, the plaintiff in the hypothetical you proposed cannot satisfy the first element of a prima facie case. Therefore, the hypothetical claims fail.
AK –
Regardless of the employer’s motivation, the plaintiff still must demonstrate that he or she had a sincere religious belief that the employer refused to accommodate or was the basis of the employer’s adverse employment action. That is, the plaintiff must demonstrate that he or she is a member of the protected class. In AZ’z hypothetical, the plaintiff could not satisfy this requirement, and the claim would fail.
I don’t know enough to say anything intelligent about the narrow issue, but this keeps confirming my notion of Thomas as my favorite Justice.
If your religion requires modesty in dress, doesn’t working at Abercrombie & Fitch run counter to it?
I am not a lawyer.
I think I agree with Thomas.
It seems like A&F doesn’t make exceptions to its dress code, that was their motivation not religion. I believe if Elauf agreed not to wear a headscarf at work they would have hired her. Now, A&F should have asked this during the interview (or with a follow-up question) to make it clear that their issue was with the headscarf and not Elauf’s religion.
Thomas makes the case that a neutral standard is non-discriminatory, unless the plaintiff can prove that the policy was motivated by discrimination.
The problem is that this logic is the same one underwriting the opposition to RFRAs, as set forth by Justice Scalia in Employment Div. v. Smith (1990). If you want the “facially neutral standard” to override religious professions, then you’re going to have to surrender on the “Christian wedding cake-baker” phenomenon. Of course, I don’t know where you stand on that issue, so it may not be a problem for you to make that concession. I just wanted to point the similarities out.
Is this actually what the decision says? I’m not a lawyer (yet), but Scalia’s opinion seems to make clear that this law is primarily – verging on exclusively – concerned with the motivations of the employer, quite independent from questions of actual knowledge or fact. All that would be necessary for an adverse employment action to run afoul of Title VII. would be for the employer to believe that the employee would require a religious accommodation, and take an adverse action based upon that belief. Take Scalia’s hypo: an observant Jew. A business who refused to hire that person on the assumption that he would refuse to work Saturdays – regardless of whether or not the individual would be willing to make that accommodation – would be in violation of Title VII. because their decision was based on a (possibly false) religious consideration.
Unless you also push for some public accommodations reform (which we should).
There is that. I don’t relish the fight, though – it’s going to be portrayed as a repeal of the Civil Rights Act of 1965, and a general move to empower racists, bigots, and other sundry subhumans. Freedom is a laudable goal, but right now the progressives and some of our more theologically-zealous conservatives have the same idea: freedom is rightly understood as “the freedom to hold the right opinions” rather than “the freedom to be wrong.” Not a lot of natural constituencies there for public accommodations reform.
Except no one is even trying.
Instead, we’re all rallying behind RFRAs, which is a terrible long-term strategy: the moment you ask for an exemption, you’re conceding the right and permanently putting yourself at the mercy of the majorities’ beneficence.
I think the private vs. government issue is important here. Abercrombie & Fitch can (or should be able to) set whatever standard they like being a private organization, they’re not bound by the “least burdensome” standard. I don’t think it’s unreasonable to say that the government, whose laws affect everybody whether we agree with them or not, should be held to a higher standard than a private organization whose policies affect only those who proactively ask them for employment.
Motivation alone does not establish a prima facie case. The person in question must have suffered an adverse action because of a protected characteristic. In AZ’s hypothetical, that is not the case. In yours/Scalia’s, the individual is an observant Jew (that is, a member of a protected class), and is not hired because the employer wrongly believes that he follows a religious practice that other observant Jews do follow.
Really? Abercrombie didn’t know Ms. Elauf was a Muslim – they only suspected it -yet because they acted on their suspicion that the garb was religious in nature, the court ruled their actions inappropriate. Isn’t motivation what Scalia cites as the relevant factor here, to much dismay over procedure from Alito? Isn’t this why they’re going back and forth over the knowledge requirement?
But she is a Muslim, not an atheist that &F erroneously thought was Muslim.
I’m not sure how the case would have been different if she were an atheist mistakenly identified as a Muslim. At least, I can’t see any grounds for differentiation in Scalia’s opinion. Alito’s opinion clearly draws a bright line by establishing a knowledge requirement for the employer, and of course Thomas throws the whole question out.
AK
I don’t know what to tell you. AZ’s hypotheticals asked whether the hypothetical individuals could win their claims. Title VII prohibits discrimination against members of certain protected classes. A claim brought by someone who can’t demonstrate membership in a protected class fails regardless of the motive of the alleged discriminator.
The ADA includes language allowing claims by those who are erroneously “regarded as” disabled. Title VII does not.