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Justices Bolster Protection for Religious Accommodations in Employment

By Mark Walsh — June 01, 2015 3 min read

The U.S. Supreme Court on Monday bolstered religious protections for employees, ruling for a young Muslim woman who was denied a job at a clothing retailer because she wore a head scarf.

The case was being watched by education and government groups because of the growing role of religious-discrimination claims under Title VII of the Civil Rights Act of 1964. The National School Boards Association signed on to a friend-of-the-court brief that sided with the retailer and objected to an interpretation of religious bias adopted by the EEOC.

The justices ruled 8-1 in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc. (Case No. 14-86) to revive the religious-discrimination suit filed by Samantha Elauf, who had just graduated from high school in 2008 when she sought a job at an Abercrombie store at a Tulsa mall.

Elauf interviewed for the job and received generally high marks, but the store manager, who presumed Elauf was Muslim and wore the scarf for religious reasons, consulted a district manager. The district manager said the head scarf would violate the chain’s “look policy,” which barred all hats and headdress, and thus Elauf could not be hired. (The retailer has softened its policy since then and made clear that Muslim head scarves are permissible.)

A federal district court granted summary judgment to the EEOC (on Elauf’s behalf), and after a trial over damages, a jury awarded Elauf $20,000.

The U.S. Court of Appeals for the 10th Circuit, in Denver, reversed, concluding that Title VII does not bar an employer from taking action against an applicant or employee based on a religious practice unless the employer received explicit, verbal notice of the religious conflict.

Writing for the majority on June 1, Justice Antonin Scalia said that to prevail in a religious-bias claim, a job applicant need only show that his or her need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of the need.

“The 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,” Scalia said.

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

Justice Samuel A. Alito Jr. filed his own opinion concurring in the outcome. He said that while Elauf had presented enough evidence to defeat summary judgment for Abercrombie, he would hold that “an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”

Justice Clarence Thomas dissented, saying “mere application of a neutral policy cannot constitute intentional discrimination.”

“Because the [EEOC] can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the 10th Circuit.”

In the education context, religious-accommodation issues have come up with regard to students as well as employees. But the Abercrombie decision will likely have a bigger impact in employment.

The brief signed by the NSBA had stressed that the EEOC’s interpretation of Title VII “interjects stereotyping into the hiring process and will have far-reaching consequences for state and local governments.”

“For state and local governments, the issue is particularly problematic given the wide range of government jobs that have policies that implicate potential religious accommodation issues,” the brief of the NSBA and other government groups said. “It is not difficult to foresee the litany of instances testing whether state and local governments must inquire into a prospective employee’s religion if the EEOC’s argument is adopted by this court.”

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A version of this news article first appeared in The School Law Blog.

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