3 Things to Know About the Abercrombie Ruling

Written by Don Byrd

Yesterday, the U.S. Supreme Court sided with the EEOC and plaintiff Samantha Elauf in an employment discrimination suit against clothing retailer Abercrombie & Fitch. When it rejected her job application because of the headscarf she wears as a practicing Muslim, Abercrombie violated Ms. Elauf’s rights under Title VII of the Civil Rights Act, the Court ruled.

What’s so important about this case? Here are three things I think you should know about the Abercrombie ruling:

1. Abercrombie is a victory for everyone’s religious liberty. Yes, the headlines of the case are about the headscarf and a Muslim woman’s win in the United States Supreme Court. But the Court’s holding is not about one faith or one kind of religious attire. This ruling applies to any American whose application for a job is denied because a prospective employer does not want to accommodate the requirements of the applicant’s faith.

The promise of religious liberty would be meaningless if our faith made us essentially un-hirable. What good is religious freedom if you could be denied a livelihood because of the requirements of your religion? Employment discrimination protections are essential to fulfill the constitutional promise of religious freedom. In Abercrombie, the Supreme Court declined an invitation to weaken those protections and embolden employers who are inconvenienced by the realities of religious life in America. That is a victory for us all.

2. Employers cannot play games to avoid Title VII’s accommodation requirements. Abercrombie argued for an interpretation of Title VII that would have given prospective employers the perverse incentive to stay quiet about certain policies in job interviews. The interviewer then could reject applicants whose faith they suspect, but aren’t certain, conflicts with those unmentioned policies. The applicant, meanwhile, doesn’t raise the issue in the interview because he or she is unaware there is a conflict in the first place.

Under Abercrombie’s view of Title VII, if the applicant discovers later she was rejected due to the interviewer’s suspicion about the requirements of her faith, as happened here, the company should be free from liability because it lacked “actual knowledge” of her need for a religious accommodation. After all, she never explicitly informed them of her faith, so they can plead ignorance. The 10th Circuit went along with this argument. The Supreme Court said no.

A prospective employer cannot hide behind manufactured ignorance about the applicant’s faith to deny the applicant a job when in fact the desire to avoid accommodating the applicant’s faith is a motivating factor in the decision not to hire.

3. Neutral work policies are not good enough. Abercrombie also made this second argument: because we don’t allow any employee of any faith to cover their heads, we are not discriminating against Muslim applicants. It is the same neutral policy toward everyone. That argument was accepted by Justice Thomas, the lone dissenting member of the Court, but the other 8 rejected that approach, which would have gutted Title VII’s religious accommodation provisions.

Writing for the majority, Justice Scalia said:

Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. 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.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

You can read the opinion here. The BJC’s statement applauding the ruling is here. The BJC’s resource page on the Abercrombie case is here.