Court Says Discrimination Exists Even If No Accommodation Request

court_front_medWhen Samantha Elauf showed up for her job interview at an Abercrombie & Fitch store wearing a hijab, it was a powerful hint the teenager might have religious convictions.

But with the company’s controversial policy which, among other things, spelled out a certain “look” that made no allowances for headwear, Elauf was turned down.

That rejection lead to a charge of employment discrimination by the Equal Employment Opportunity Commission and a $20,000 verdict against Abercrombie & Fitch. The verdict was overturned when the 10th Circuit Court of Appeals agreed with the company that Elauf first had to ask for a religious accommodation.

The U.S. Supreme Court rejected that thinking today, in an 8-1 decision that Justice Antonin Scalia said was, “Really easy.”

Speaking from the bench this morning, Scalia said, “Title VII forbids adverse employment decisions made with a forbidden motive whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”

In his written decision, joined by six other justices, Scalia explained further that, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

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That Elauf never specifically requested a religious accommodation is immaterial, the court opinion said. “A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.”

Justice Samuel A. Alito Jr. voted with the majority, but disagreed on that latter point, writing “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.” In this case, he said, there was “ample evidence” the company knew Elauf is Muslim.

Justice Clarence Thomas dissented, opining that a company dress code, applied evenhandedly, was not discrimination.

John Zappe is the editor of and a contributing editor of John was a newspaper reporter and editor until his geek gene lead him to launch his first website in 1994. He developed and managed online newspaper employment sites and sold advertising services to recruiters and employers. Before joining ERE Media in 2006, John was a senior consultant and analyst with Advanced Interactive Media and previously was Vice President of Digital Media for the Los Angeles Newspaper Group.

Besides writing for ERE, John consults with staffing firms and employment agencies, providing content and managing their social media programs. He also works with organizations and businesses to assist with audience development and marketing. In his spare time  he can be found hiking in the California mountains or competing in canine agility and obedience competitions.

You can contact him here.


3 Comments on “Court Says Discrimination Exists Even If No Accommodation Request

  1. Justice Thomas is right in that his “common sense” interpretation of the law is what Congress originally intended.
    Subsequently, Congress must now modify or clarify the law to permit uniformly-applied dress codes. They have to since common knowledge conveys that retail stores would fail if the floor-clerks all got to wear personal religious garb.

    1. This is not about being a discriminating dresser, it is about discriminating against human beings for either existing artificial distinctions, or imagined fears based on ignorance. Any opinion by Thomas is incomplete at best, without oral arguments challenging attorneys in open court.

  2. Either get rid of all subsidies, tax breaks, handouts, special favors, favorable regulations and trade policy, and other benefits this business receives on net vs the taxes they pay and then they can hire or fire whoever they want for whatever reason they want, or tell them to go screw and let the woman wear her damn head dress. As long as they’re receiving benefits from the state, which will necessarily be biased and stifle competing employment opportunities, then they have to allow some socialism/regulation/protection in favor of their employees.

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