Supreme Court rules on Abercrombie's refusal to hire woman who wore headscarf

In EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86 (June 1, 2015), the United States Supreme Court ruled that Abercrombie was not entitled to summary judgment on a disparate treatment claim by a Muslim woman who was not hired because the headscarf she wore pursuant her religious obligations conflicted with the employer's dress code. The decision exposed a rare split between Justice Scalia (who wrote the 8-1 majority decision) and Justice Thomas (who dissented). The New York Times has reported that Scalia and Thomas agreed 91 percent of the time in decisions handed down through end of the 2013-14 term of the Court. (Comprehensive data on Supreme Court decisions is available from The Supreme Court Database.)

Abercrombie has a dress code (termed a "Look Policy") that prohibits the wearing of "caps" at work, because that is too informal for its desired image. When Samantha Elauf (a practicing Muslim who wears a headscarf) applied for a job at an Abercrombie store, an interviewer concluded that she was qualified for the job, but worried that her headscarf might conflict with the dress code. The district manager eventually directed the interviewer not to hire Elauf because her headscarf would violate the dress code.

The EEOC brought suit on Elauf's behalf in the District Court for the Northern District of Oklahoma, which granted summary judgment to the EEOC on liability, denied summary judgment to Abercrombie, and awarded $20,000 in damages after a trial. EEOC v. Abercrombie & Fitch Stores, Inc., 798 F.Supp.2d 1272 (N.D. Okla. 2011). The District Court rejected Abercrombie's claim of undue hardship if it had to accommodate the wearing of a headscarf, noting that it granted numerous exceptions to the Look Policy, and had recently granted eight or nine head scarf exceptions.

The Tenth Circuit reversed, and ordered the District Court to grant summary judgment to Abercrombie. EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013). It arrived at that conclusion, because Elauf never specifically informed Abercrombie that wearing a headscarf was based on her religious beliefs, or that she would need an accommodation for that practice.

In reversing the Tenth Circuit's decision, the Supreme Court stated that Title VII's ban on religious discrimination focuses on the employer's motivation, not its knowledge. As Justice Scalia explained for the, "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." Justice Thomas disagreed, arguing that the refusal to hire Elauf was a mere application of the "neutral" Look Policy, which did not rest on intentional discrimination: "Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf. Ante, at 2. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices."

The Court's decision was not a complete vindication for the EEOC. The case was sent back to the Tenth Circuit to determine whether the District Court's summary judgment for the EEOC was supported by the evidence. "On remand, the Tenth Circuit can consider whether there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge. The Tenth Circuit will also be required to address Abercrombie’s claim that it could not have accommodated Elauf ’s wearing the headscarf on the job without undue hardship."

Religious Institutions and Anti-Discrimination Laws

A recent decision from the Santa Ana division of the Fourth District Court of Appeal prompts a look at how the anti-discrimination laws apply to religious institutions. In Henry v. Red Hill Evangelical Lutheran Church of Tustin, No. G044556 (Dec. 9, 2011), the Court of Appeal affirmed the dismissal of a discrimination claim by a teacher at a church school who had been fired for living with her boyfriend and raising their child together without being married.The application of federal anti-discrimination laws to religious institutions is before the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553.

The applicable state law is the California Fair Employment and Housing Act. The applicable federal laws are Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. They deal with the issue in different ways.

The FEHA by its express terms does not apply to religious organizations at all. Under California Government Code section 12926(d), "'Employer' does not include a religious association or corporation not organized for private profit." Section 12926.2 contains exceptions to the exclusion for those employed in religious health care facilities that do not limit their care to those of a particular religion (but not including those in executive or pastoral care positions) and those employed by a nonprofit public benefit corporations affiliated with a particular religion that operates an educational institution as its sole or primary activity. Otherwise, a church or other religious institution cannot be held liable under the FEHA no matter what the employee's duties or what the basis for alleged discrimination. See, for example, Kelly v. Methodist Hospital of Southern California, 22 Cal.4th 1108, 997 P.2d 1169, 95 Cal.Rptr.2d 514 (2000) (age discrimination).

In contrast, the federal statutes allow religious organizations to give employment preference to members of their own religion, but otherwise prohibit employment discrimination. Thus, a Roman Catholic school may limit its hiring those of the Roman Catholic faith, but may not refuse to hire a Roman Catholic because of race, national origin, sex, or disability. The federal Courts of Appeals have also recognized a ministerial exception to application of the anti-discrimination laws based on the First Amendment. The EEOC has explained both principles in Questions and Answers: Religious Discrimination in the Workplace. In the Hosanna-Tabor Evangelical Lutheran Church and School case, the Supreme Court recognized the ministerial exception and applied it to bar a claim under the Americans with Disabilities Act.