Yesterday, the U.S. Supreme Court ruled in favor of the EEOC in a case it brought against Abercrombie & Fitch. The issue was whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a religious observance and practice only if the employer has actual knowledge that a religious accommodation was required.
By an 8-1, the Court answered: no. Justice Thomas was the lone dissenter. Justice Alito wrote a concurring opinion rejecting much of the majority’s reasoning.
I believe the Court reached the correct conclusion.
Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. In my view, the prohibition represents an important safeguard to religious freedom. In fact, I have urged this “reasonable accommodation” framework as a common sense way of analyzing the issue of whether vendors should be required to provide goods and services to gay weddings when their religious beliefs dictate that they not do so.
In Abercrombie’s case, a practicing Muslim showed up for her job interview wearing a head scarf. The assistant store manager found the applicant qualified, but was concerned that her head scarf would put her in conflict with the company’s dress code (its “look policy”). The assistant manager believed, but did not know, that the applicant wore the scarf for religious reasons (she does).
Management told the assistant manager that the head scarf would, indeed, violate the look policy, as would all other headwear, religious or otherwise. She directed that the applicant not be hired.
Abercrombie argued that an applicant cannot show that she was treated disparately on the basis of religion without first showing that an employer has “actual knowledge” of the applicant’s need for a religious accommodation. The Court disagreed.
The issue, the Court explained, is whether an applicant is rejected “because of” her religious practice. Under established Title VII law, this standard requires only that the religious practice be a motivating factor in the employment decision.
Applying this standard, the Court ruled that an employer who acts with the motive of avoiding accommodation may violate Title VII even if it has no more than an unsubstantiated suspicion that accommodation would be needed. Justice Scalia wrote:
An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. 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.
Because Abercrombie, at a minimum, suspected that the applicant wore a head scarf for religious reasons, the Court did not decide whether the employer must at least suspect that that the practice in question is religion-based. It seems self-evident that the employer must have either suspicion or knowledge. Otherwise, its decision cannot be motivated by religious considerations and it cannot be said to have been made “because of religion” even in a weak sense.
The issue of what, if anything, an employer might actually have to do to accommodate an employee whose religion require her to wear a head scarf wasn’t before the Court. Unfortunately, this isn’t like a Sabbath observance case, where an employer can often arrange for shifts to be swapped; you can’t solve this conflict by having the employee wear half a head scarf.
Abercrombie would either have to depart from its “look policy,” or the employee would have to ditch the scarf, or she would have to look elsewhere for a job. The outcome would turn on whether permitting the Muslim to wear the head scarf, in violation of the “look policy” would impose an undue hardship on Abercrombie.
If, as one can easily imagine, a court rules that there is no undue hardship and that Abercrombie must depart from its policy for this applicant (but not for those who want to deviate for non-religious reasons), then the government will have coerced the company. But that’s the price of doing business in a country that has — or had when Title VII was passed and initially interpreted by courts — a robust concern about having its citizens forced to choose between religious observance and their livelihood.