Supreme Court: Religious Discrimination Motivated By Ignorance Still Unlawful

In the March 12, 2015 edition of The Legal Workplace Grind, we discussed oral argument before the U.S. Supreme Court in the case of Equal Employment Opportunity Commission vs. Abercrombie & Fitch. While we correctly predicted the High Court would rule in favor of the employee on whose behalf the EEOC sued the clothing retailer, my characterization of that case as one presenting tough legal questions was apparently misguided.

Last week, before delivering the opinion of the Court, Justice Scalia remarked, “This is really easy”.

Head Scarfs Are Not The Abercrombie Look.

Samantha Elauf, a 17-year old practicing Muslim, applied for a sales position at an Abercrombie store. She appeared at her interview wearing a hijab – a Muslim headscarf. No mention was made of the head scarf, religion or Abercrombie’s dress code. The interviewer rated Ms. Elauf as hire eligible. However, an Abercrombie district manager pulled the plug on Ms. Elauf’s hire because the head scarf – which Abercrombie correctly assumed was worn for religious reasons – would conflict with its dress code prohibiting any headwear.

The district court ruled Abercrombie’s conduct was discriminatory and a jury awarded Ms. Elauf $20,000. However, an appeals court overturned that decision and ruled in favor of Abercrombie. It concluded that because Ms. Elauf did not make Abercrombie aware of her religious beliefs or any needed accommodation, Abercrombie lacked the requisite knowledge to support a finding of unlawful discrimination on the basis of religion.

Religious Discrimination Includes Beliefs, Observances and Practices.

The Supreme Court explained that under Title VII “religion” is defined to “include all aspects of religious observance and practice, as well as belief” and that an employer must accommodate a religious observance or practice, unless it would cause an undue hardship on the business.

It was undisputed that Ms. Elauf’s headscarf was a religious practice. The question was whether Abercrombie had refused to hire Ms. Elauf because of her religious practice.

Writing for the 8 member majority Justice Scalia explained that in order to prove employment discrimination on the basis of religion, it is not necessary to show that the employer had actual knowledge of the need for a religious accommodation. Rather, unlawful discrimination occurs when a decision is motivated by discrimination against a religious belief, observance or practice – in this case the desire to avoid a religious accommodation of Ms. Elauf’s head scarf – even when that decision it is based upon an “unsubstantiated suspicion”.

The Pitfalls of Assumptions and Suspicions in Employment.

The Supreme Court presented a straightforward rule in cases alleging a failure to accommodate a religious practice: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Several commentaries published since the issuance of the Court’s decision speculate that employers will be held liable for religious discrimination even where decisions are made without any knowledge whatsoever of an employee’s religious beliefs or practices. Others comment that employers skate on thin ice if they ask about an employee’s religion to ascertain whether an accommodation is required.

The problems with Abercrombie’s case was it assumed (remember what Felix said happens when we assume) Ms. Elauf’s religious practices would conflict with its dress code, never addressed the concern with her and refused her employment because of that religious practice.

As suggested in my prior post on this case, Bronx native and lifelong Yankees fan Justice Sonia Sotomayor hit a home run during oral argument when she posed an obvious solution to this balancing act: why not just inform the applicant of the policy and simply ask, “You have a problem with that?” Problem solved in a New York minute.

Please share your comments or questions below.

Ralph A. Somma is a Long Island, NY employment lawyer who handles cases involving discrimination in the workplace.

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Ralph A. Somma
About the Author: Ralph A. Somma
Ralph A. Somma is an experienced employment lawyer from Long Island, New York. For over 20 years, Ralph has been working to enforce workplace rights in New York and Long Island.

One comment on “Supreme Court: Religious Discrimination Motivated By Ignorance Still Unlawful”

  • The decision of the Court has raised certain difficulties. While an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions, does the employer have any option in a situation where the religious practice of the employee could be suspected to impact negatively on the business of the employer?

    Whether an employer has right to make rules governing dress code for the employees and if the employer has right to make such rules, at what point is the employer supposed to make the employee aware of the rule?

    If the applicant were putting on informal but non religious dressing which the employer considers conflicting to official dress code, would the employer have had right to refuse the applicant based on such dressing?

    It seems Samantha Elauf was “listed as eligible” for employment but was not yet made an offer and therefore not yet an employee of abercrombie. Her dressing was sufficient information of her religious belief. The argument that Ms. Elauf did not make Abercrombie aware of her religious beliefs or any needed accommodation, Abercrombie lacked the requisite knowledge to support a finding of unlawful discrimination on the basis of religion based on which the Appeal Court turned the decision of the District court was weak, which was the reason the Supreme Court reversed it. Abercrombie lost the case not because they were guilty of religious discrimination but because their argument was flawed

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