The result is not so surprising but how the Supreme Court got there is a little surprising. In the case of EEOC v. Abercrombie, No. 14-86 (6/1/2015) the Court rejected the lower court decision and found the employer should have accommodated the applicant. The applicant, Samanatha Elauf, applied for a position. She was a practicing Muslim and wore a head scarf. The assistant manager gave her a high score, such that she would probably have been offered a position. But, the assistant manager checked to see if the scarf violated the no-cap policy. Eventually, the assistant manager was told that the applicant could not wear a head scarf.
Should Abercrombie have accommodated Ms. Elauf? Yes, said the Supreme Court. There was some issue about whether the employer knew Ms. Elauf’s request to wear a scarf was based on her faith. The employer argued on appeal that the employee must show “actual” knowledge of the need for accommodation. Id, p. 3 (slip opinion). Justice Scalia, writing for the majority, said no, the employee must simply show the need for an accommodation was a motivating factor in the decision to reject her application. Id.
The court rightly pointed out that Sec. 2003-2(a)(1), the disparate treatment section, does not require a showing of knowledge of the protected characteristic. The statute does, however use the phrase “because of.” So, the employee must show the protected characteristic was a “motivating factor” in the decision.
Some statutes, such as the Americans with Disabilities Act, do require a showing of knowledge by the employer. An employer must accommodate “known” disabilities, according to the ADA. But, Title VII does not. Instead, Title VII prohibits certain motives.
The court adds in a footnote that the result might have been different if the employer did not at least suspect a religious practice was at issue. As the court explained, the motive issue might not be satisfied unless the employee can show at least a suspicion by the employer. But, that issue was not raised in this appeal, said the court. Id., at p. 6, ftnte 5.
Abercrombie also argued that the rule itself does not discriminate. The no-cap rule applies to all faiths. But, said Justice Scalia, that argument does not apply. Religious accommodation is by definition a requirement for special treatment for religious practices.
Justice Alito, in his concurrence, takes the majority to task for, in his view, disregarding the lack of evidence showing that the employer knew Ms. Elauf wore the scarf for a religious reasons. But, that approach ignores the reality that women wearing head scarves today generally do so because of religious reasons. A court should not ignore reality. Too, in my opinion, that argument simply makes it more evident that this concern is a factual argument, not appropriate for dispositive motions.
So, sure, a court finding that mere suspicion of a prohibited motive suffices to show discriminatory bias is a bit surprising. But, that is the decision that acknowledges the reality of the current workplace. See the decision here.