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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.
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.
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.