Today the Supreme Court issued a major victory for civil rights in its 8-1 EEOC v. Abercrombie & Fitch Stores [PDF] decision. More surprising than the favorable decision or the fact that it was nearly unanimous, is the author of the majority opinion: Justice Scalia. According to Justice Scalia and the majority of the Court, Abercrombie may have violated a job applicant’s civil rights when it rejected her application because she wore a hijab, even though her religious beliefs never came up in the interview.
The case focused on Samantha Elauf, a practicing Muslim who had applied for a sales position with Abercrombie Kids. Following an interview with the store manager, who rated her as qualified for hire, the store manager was concerned that Samantha’s head scarf might violate the store’s Look Policy, which prohibited employees from wearing “caps.” The district manager told the store manager that all headwear, religious or not, violates the store’s Look Policy, and directed the store manager to therefore not hire Samantha. Samantha filed a complaint with the Equal Employment Opportunity Commission (EEOC), and the EEOC sued Abercrombie on Samantha’s behalf for violating her religious rights under Title VII.
Title VII prohibits employers from discriminating on the basis of religion and requires employers to accommodate employees’ religion when it can do so without undue hardship. When the EEOC sued Abercrombie for violating Samantha’s rights under Title VII, Abercrombie claimed that Samantha’s religious beliefs never came up in the interview and that wearing anything on one’s head violated a neutral store policy. Abercrombie therefore argued that it didn’t know that her headscarf was a religious symbol for her, and that she never requested that she be permitted to wear the headscarf as a religious accommodation; as a result, Abercrombie argued it did not discriminate against Samantha’s on the basis of religion because it did not take her religion into account when deciding not to hire her based on a neutral policy.
The issue before the Supreme Court, therefore, was whether an employer can only be liable for failing to provide a religious accommodation under Title VII when the employer has actual knowledge that a religious accommodation was required based on direct, explicit notice from the applicant or employee. A bad decision could have given employers an easy excuse to discriminate and would have encouraged them to ask as few questions as possible in order to protect against Title VII claims.
Thankfully though, the Supreme Court ruled in Samantha’s favor. As Justice Scalia wrote in the majority opinion:
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.
In other words, an employer who doesn’t know with complete certainty if an applicant’s need for accommodation is based on religion or not cannot rely on that uncertainty to violate her civil rights under Title VII.
The lone dissent came from Justice Thomas, who would have had no problem in Abercrombie’s decision not to hire Samantha for wearing a headscarf that violated Abercrombie’s Look Policy. He does not view this as intentional discrimination because the store “did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices.” Ostensibly then, Abercrombie may be free to discriminate against applicants’ religion, under Justice Thomas’s view, so long as they discriminate equally.
Luckily, Justice Thomas was alone in his view, and the Court overwhelmingly found in favor of Samantha Elauf’s religious freedom. EEOC Chair Jenny E. Yang summed up this important decision: “This ruling protects the rights of workers to equal treatment in the workplace without having to sacrifice their religious beliefs or practices.” Moreover, according to EEOC General Counsel David Lopez, not only is “[t]his decision  a victory for our increasingly diverse society,” but “[a]t its root, this case is about defending the quintessentially American principles of religious freedom and tolerance.”
We applaud the Supreme Court for acting today to keep our civil rights laws meaningful and robust for the men and women they protect.