Equal Emp't Opportunity Comm'n v. Abercrombie & Fitch Stores, Inc.,
575 U.S. ___ (2015)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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No. 14–86

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER v. ABERCROMBIE & FITCHSTORES, INC.

on writ of certiorari to the united states court of appeals for the tenth circuit

[June 1, 2015]

Justice Alito, concurring in the judgment.

This case requires us to interpret a provision of Title VII of the Civil Rights Act of 1964 that prohibits an employer from taking an adverse employment action (refusal to hire, discharge, etc.) “against any individual . . . because of [[1]] such individual’s . . . religion.” 42 U. S. C. §2000e–2(a). Another provision states that the term “religion” “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e( j). When these two provisions are put together, the following rule (expressed in somewhat simplified terms) results: An employer may not take an adverse employment action against an applicant or employee because of any aspect of that individual’s religious observance or practice unless the employer demonstrates that it is unable to reasonably accommodate that observance or practice without undue hardship.

In this case, Samantha Elauf, a practicing Muslim, wore a headscarf for a religious reason when she was interviewed for a job in a store operated by Abercrombie & Fitch. She was rejected because her scarf violated Abercrombie’s dress code for employees. There is sufficient evidence in the summary judgment record to support a finding that Abercrombie’s decisionmakers knew that Elauf was a Muslim and that she wore the headscarf for a religious reason. But she was never asked why she wore the headscarf and did not volunteer that information. Nor was she told that she would be prohibited from wearing the headscarf on the job. The Tenth Circuit held that Abercrombie was entitled to summary judgment because, except perhaps in unusual circumstances, “[a]pplicants or employees must initially inform employers of their religious practices that conflict with a work requirement and their need for a reasonable accommodation for them.” 731 F. 3d 1106, 1142 (2013) (emphasis deleted).

The relevant provisions of Title VII, however, do not impose the notice requirement that formed the basis for the Tenth Circuit’s decision. While I interpret those provisions to require proof that Abercrombie knew that Elauf wore the headscarf for a religious reason, the evidence of Abercrombie’s knowledge is sufficient to defeat summary judgment.

The opinion of the Court states that “§2000e–2(a)(1) does not impose a knowledge requirement,” ante, at 4, but then reserves decision on the question whether it is a condition of liability that the employer know or suspect that the practice he refuses to accommodate is a religious practice, ante, at 6, n. 3, but in my view, the answer to this question, which may arise on remand,[2]2 is obvious. I 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. If §2000e–2(a)(1) really “does not impose a knowledge requirement,” ante at 4, it would be irrelevant in this case whether Abercrombie had any inkling that Elauf is a Muslim or that she wore the headscarf for a religious reason. That would be very strange.

The scarves that Elauf wore were not articles of clothing that were designed or marketed specifically for Muslim women. Instead, she generally purchased her scarves at ordinary clothing stores. In this case, the Abercrombie employee who interviewed Elauf had seen her wearing scarves on other occasions, and for reasons that the record does not make clear, came to the (correct) conclusion that she is a Muslim. But suppose that the interviewer in this case had never seen Elauf before. Suppose that the interviewer thought Elauf was wearing the scarf for a secular reason. Suppose that nothing else about Elauf made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason. If “§2000e–2(a)(1) does not impose a knowledge requirement,” Abercrombie would still be liable. The EEOC, which sued on Elauf’s behalf, does not adopt that interpretation, see, e.g., Brief for Petitioner 19, and it is surely wrong.

The statutory text does not compel such a strange result. It is entirely reasonable to understand the prohibition against an employer’s taking an adverse action because of a religious practice to mean that an employer may not take an adverse action because of a practice that the employer knows to be religious. Consider the following sentences. The parole board granted the prisoner parole because of an exemplary record in prison. The court sanctioned the attorney because of a flagrant violation of Rule 11 of the Federal Rules of Civil Procedure. No one is likely to understand these sentences to mean that the parole board granted parole because of a record that, unbeknownst to the board, happened to be exemplary or that the court sanctioned the attorney because of a violation that, unbeknownst to the court, happened to be flagrant. Similarly, it is entirely reasonable to understand this statement—“The employer rejected the applicant because of a religious practice”—to mean that the employer rejected the applicant because of a practice that the employer knew to be religious.

This interpretation makes sense of the statutory provisions. Those provisions prohibit intentional discrimination, which is blameworthy conduct, but if there is no knowledge requirement, an employer could be held liable without fault. The prohibition of discrimination because of religious practices is meant to force employers to consider whether those practices can be accommodated without undue hardship. See §2000e( j). But the “no-knowledge” interpretation would deprive employers of that opportunity. For these reasons, an employer cannot be liable for taking adverse action because of a religious practice if the employer does not know that the practice is religious.

A plaintiff need not show, however, that the employer took the adverse action because of the religious nature of the practice. Cf. post, at 4 (Thomas, J., concurring in part and dissenting in part). Suppose, for example, that an employer rejected all applicants who refuse to work on Saturday, whether for religious or nonreligious reasons. Applicants whose refusal to work on Saturday was known by the employer to be based on religion will have been rejected because of a religious practice.

This conclusion follows from the reasonable accommodation requirement imposed by §2000e( j). If neutral work rules (e.g., every employee must work on Saturday, no employee may wear any head covering) precluded liability, there would be no need to provide that defense, which allows an employer to escape liability for refusing to make an exception to a neutral work rule if doing so would impose an undue hardship.

This brings me to a final point. Under the relevant statutory provisions, an employer’s failure to make a reasonable accommodation is not an element that the plaintiff must prove. I am therefore concerned about the Court’s statement that it “is the plaintiff’s burden [to prove failure to accommodate].” Ante, at 3 n. 2. This blatantly contradicts the language of the statutes. As I noted at the beginning, when §2000e–2(a) and §2000e( j) are combined, this is the result:

“It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any individual . . . because of [any aspect of] such individual’s . . . religious . . . practice . . . unless an employer demonstrates that he is unable to reasonably accommodate to [the] employee’s or prospective employee’s religious . . . practice . . . without undue hardship on the conduct of the employer’s business. (Emphasis added.)

The clause that begins with the term “unless” unmistakably sets out an employer defense. If an employer chooses to assert that defense, it bears both the burden of production and the burden of persuasion. A plaintiff, on the other hand, must prove the elements set out prior to the “unless” clause, but that portion of the rule makes no mention of accommodation. Thus, a plaintiff need not plead or prove that the employer wished to avoid making an accommodation or could have done so without undue hardship. If a plaintiff shows that the employer took an adverse employment action because of a religious observance or practice, it is then up to the employer to plead and prove the defense. The Court’s statement subverts the statutory text, and in close cases, the Court’s reallocation of the burden of persuasion may be decisive.

In sum, the EEOC was required in this case to prove that Abercrombie rejected Elauf because of a practice that Abercrombie knew was religious. It is undisputed that Abercrombie rejected Elauf because she wore a headscarf, and there is ample evidence in the summary judgment record to prove that Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a religious reason. The Tenth Circuit therefore erred in ordering the entry of summary judgment for Abercrombie. 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.

Notes

1  Under 42 U. S. C. §2000e–2(m), an employer takes an action “because of” religion if religion is a “motivating factor” in the decision.
2 2 Cooke testified that she told Johnson that she believed Elauf wore a head scarf for a religious reason, App. 87, but Johnson testified that Cooke did not share this belief with him, id., at 146. If Abercrombie’s knowledge is irrelevant, then the lower courts will not have to decide whether there is a genuine dispute on this question. But if Abercrombie’s knowledge is relevant and if the lower courts hold that there is a genuine dispute of material fact about Abercrombie’s knowledge, the question will have to be submitted to the trier of fact. For these reasons, we should decide this question now.
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