Supreme Court favors Muslim woman in Abercrombie discrimination suit

June 17, 2015

Westlaw Journals ThumbBy Tricia Gorman, Managing Editor, Westlaw Journals

From Westlaw Journal Employment: A Muslim woman who says Abercrombie & Fitch did not hire her because she wore a headscarf to a job interview can show discrimination by the clothing store even though she did not request an accommodation, the U.S. Supreme Court has ruled.

The high court, with one dissent, reversed a 10th U.S. Circuit Court of Appeals decision that rejected Samantha Elauf’s claims against the retailer because she had not specifically asked for a religious accommodation for her hijab.

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Writing for the 8-1 majority, Justice Antonin Scalia said a job applicant does not have to show that an employer knew about a need for an accommodation, but only that the employer’s adverse decision was motivated by a possible need for accommodation.

(WestlawNext users: Click here for the high court opinion.)

Justice Clarence Thomas wrote a separate opinion dissenting in part, arguing that Abercrombie did not discriminate by enforcing a neutral policy that banned workers from wearing anything but the retailer’s clothes on the job.

Victory for a ‘diverse society’

The Equal Employment Opportunity Commission, which filed the suit on Elauf’s behalf, immediately issued a statement praising the high court’s decision.

“At its root, this case is about defending the quintessentially American principles of religious freedom and tolerance,” EEOC General Counsel David Lopez said.  “This decision is a victory for our increasingly diverse society and we applaud Samantha Elauf’s courage and tenacity in pursuing this matter.”

The National Federation of Independent Businesses, however, said the ruling is a “no-win situation for small businesses” that will likely cause more lawsuits.

The decision “will force employers to make assumptions about an applicant’s religion” and “sets an unclear and confusing standard making business owners extremely vulnerable to inevitable discrimination lawsuits,” Karen Harned, director of the NFIB Small Business Legal Center, said in a statement.

The decision is a win not only for Elauf and other employees, but also for employers, according to R. Scott Oswald, managing partner at The Employment Law Group, who was not involved in the case.

“Many teenage job applicants would have accepted Abercrombie’s behavior as the way of the world, choked back their gall, and moved on … [but] Ms. Elauf has helped to secure what Justice Scalia rightly identifies as Title VII’s ‘favored treatment’ of religious practices in the workplace,” Oswald said.

The Supreme Court’s clarification of the law will also help employers develop “better hiring practices — practices that, in the long run, will protect companies from litigation,” Oswald said.

Katz, Marshall & Banks partner Avi Kumin, who was not involved in the suit, said the Supreme Court’s ruling is “entirely consistent with the interpretation of other federal employment statutes” in which an employer is liable when it bases a decision on suspicions about a worker or applicant.

Jeanine Gozdecki, a partner at Barnes & Thornburg, labeled the ruling a victory for religion.

”The majority decision emphasized that religion is a protected class that requires ‘favored treatment,’ and also underscores that religious practices are equivalent to one’s religious beliefs, and are accorded the same protection,” said Gozdecki, who was not involved in the suit.

The high court emphasized that employers must give religious practices “favored treatment” when accommodating an employee, according to Greensfelder, Hemker & Gale partner Susan Benton, who was not involved in the case.

”Employers must be mindful of the Supreme Court’s admonition that employers must provide favored treatment in accommodating the religious practices of applicants and employees, even if those practices and the related perceived need for accommodation are merely suspicions,” Benton said.

“A no-hire rationale similar to that stated by the Abercrombie district manager — that headscarves, like all other non-religious head coverings, would violate the otherwise neutral policy — is no longer sufficient to defend a claim of intentional discrimination under Title VII,” she added.

Sales job denied

The EEOC filed the suit after Elauf, who was 17 at the time, was denied a sales job at an Abercrombie Kids store in Tulsa, Okla., in 2008.

Although the person who interviewed Elauf said she assumed Elauf wore a hijab for religious reasons, the store did not hire her and failed to offer an accommodation to its “look policy,” in violation of Title VII of the Civil Rights Act, the agency said.

A federal judge ruled in favor of Elauf and the government, but in an October 2013 ruling, the 10th U.S. Circuit Court of Appeals found that Elauf was required to ask for an accommodation.  EEOC v. Abercrombie & Fitch Stores, 798 F. Supp. 2d 1272 (N.D. Okla. 2011); 731 F.3d 1106 (10th Cir. 2013).

(WestlawNext users: Click here for the District Court opinion.)

(WestlawNext users: Click here for the 10th Circuit opinion.)

In October 2014 the Supreme Court granted the EEOC’s petition for certiorari.

Numerous religious groups, including the American Jewish Committee and the American-Arab Anti-Discrimination Committee, filed amicus briefs with the court in support of the EEOC and Elauf, while the U.S. Chamber of Commerce and other business groups supported Abercrombie.

During oral arguments in February, the EEOC said a company acting on assumptions about an employee’s or job applicant’s religious practices should be sufficient to show discrimination.  Abercrombie countered that religion is a very personal, individual issue, so the applicant or employee should initiate the conversation about accommodation.

Motivating factor

In reversing and remanding the appeals court decision, the Supreme Court majority ruled that a job applicant or employee does not need to demonstrate that an employer had actual knowledge of the need for an accommodation in order to bring claims of discrimination.

Title VII, 42 U.S.C. § 2000e-2(a)(1), does not include a “knowledge requirement,” the court said.  The law references only an employer’s motives for taking adverse employment actions, according to the majority.

“[T]he rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” Justice Scalia said.

In dissent, Justice Thomas said he would have affirmed the 10th Circuit’s ruling because Abercrombie did not “intentionally discriminate” against Elauf but only enforced a neutral dress policy.

“[M]erely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant ‘less favorably than others,’” Justice Thomas said.

The case now goes back to the 10th Circuit for further consideration based on the high court opinion.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., No. 14-86, 135 S.Ct. 2028 (U.S. June 1, 2015).

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