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EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (U.S. S. Ct. June 1, 2015)

The epic EEOC challenge to Abercrombie & Fitch's "Look Policy" for its retail stores turns another page, as the Supreme Court holds 8-1 that the Tenth Circuit erred in granting judgment as a matter of law to the employer on the agency's religious discrimination case. Seven justices, in an opinion signed by Justice Scalia, hold that There is no "knowledge" requirement for Title VII discrimination claims. Thus, the company's argument that it did not "know" about the applicant's Muslim religious faith - even though she was wearing a headscarf - did not avoid liability. Justice Alito concurs only in the judgment; Justice Thomas dissents.

EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (U.S. S. Ct. June 1, 2015): Reduced to its essentials, a store manager at A&F interviewed an otherwise-qualified applicant as a floor salesperson (a/k/a "model") named Samantha Elauf. Elauf arrived at her interview wearing a black headscarf, which arguably violated the retail chain's dress code - part of the store's "Look Policy." The "Look Policy" forbade the wearing of "caps."

The store manager (Cooke) believed that Elauf was Muslim, and wore the scarf for religious reasons, but did not directly inquire. While Cooke found Elauf qualified for employment, the district manager (Johnson) overruled Cooke. "Johnson told Cooke that Elauf 's headscarf would violate the Look Policy, as would all There headwear, religious orotherwise, and directed Cooke not to hire Elauf."

The district court below granted the EEOC a rare summary judgment on liability, and held a trial solely on relief. But the Tenth Circuit reversed, holding 2-1 that the EEOC had failed to establish as a matter of law that A&F knew that Elauf wore the headscarf for religious reasons.

The Supreme Court, in a brisk seven-page opinion, reverses. The Tenth Circuit's error holds the Court, was reading a "knowledge" requirement into disparate-treatment claims:

"Abercrombie's primary argument is that an applicant cannot show disparate treatment without first showing that an employer has 'actual knowledge' of the applicant's need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision."

What is critical to a disparate treatment case under Title VII is that the employer is motivated by an unlawful purpose. Indeed, Title VII is endowed with special language that requires that employee show only that "a protected characteristic a 'motivating factor' in an employment decision" (citing 42 U.S.C. §2000e-2(m)).

Unlike There federal statutes, though, Title VII does not impose an addition al knowledge requirement. The majority finds this significant:

"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."

Applying this insight to the present case, the majority holds that "[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions .... 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."

The majority notes that the putative "knowledge" requirement urged by A&F "asks us to add words to the law to produce what is thought to be a desirable result. That is Congress's province. We construe Title VII's silence as exactly that: silence."

The majority also rejects the argument that the EEOC should have pursued the claim as a "disparate impact" case (i.e., the application of a neutral employment policy that has an outsized impact on a protected group). Under the facts that the A&F district manager vetoed Elauf's employment because he anticipated having to accommodate her headscarf, he was motivated by opposition to a religious practice. Congress deliberately defined "religion" broadly (in a 1972 amendment to Title VII) as "includ[ing] all aspects of religious observance and practice, as well as belief." 42 U.S.C. §2000e(j). Holds the majority, "religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated."

Finally, the majority rejects the suggestion that religious discrimination under Title VII is limited to "employer policies that treat religious practices less favorably than similar secular practices." Title VII requires more than "mere neutrality with regard to religious practices," holds the Court. "Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual . . . because of such individual's' 'religious observance and practice.'"

The majority's analysis might well come in handy in similar cases, such as where the employer suspects - but does not know - that an employee is pregnant, a disfavored nationalty, or a member of There protected classifications under Title VII. 

Justice Alito, while not subscribing to the majority's rejection of a "knowledge" requirement, nevertheless would have found sufficient evidence in the record to present a genuine dispute about whether A&F did possess such knowledge.

In dissent, Justice Thomas would have held that A&F's application of a neutral clothing policy was not a form of "disparate treatment" at all, but (at most) actionable as disparate impact (a claim not pursued by the EEOC in this case).

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