U.S. Supreme Court: Employer's Motivation Rather than Knowledge Is Key to Liability Under Title VII

Samantha Elauf applied to work for Abercrombie & Fitch.  She wore a headscarf during the application process.  A&F has in place a no-headgear "look" policy.   The hiring managers determined that her head scarf would violate that policy.

At least one hiring manager suspected that Elauf wore the headscarf as a religious practice.  She so informed the district manager, who decided that the scarf would violate the "look" policy and that she would not be hired.

No one asked Elauf if the scarf was a religious practice, or investigated whether she would work without it.  No one sought to determine if allowing the scare would be an accommodation for a religious practice, or whether flexing the policy would be an undue hardship.  Apparently seeking to avoid these issues, they just turned her down for the job.

The EEOC sued on Elauf's behalf.   The dispute before the court boiled down to whether the Company could be liable for intentional discrimination when it did not know Ms. Elauf wore the scarf for religious reasons, but at least one manager surmised that there was a religious connection to her garb.  The district court had granted summary judgment in favor of the EEOC.  But the court of appeals reversed and granted summary judgment in favor of A&F.

Justice Scalia, writing for a majority of 7, decided that A&F could violate Title VII without actual knowledge that a religious practice was at issue.  Rather, for the Court, the issue was the motivation of the hiring managers.

First, the Court noted that under Title VII (as opposed to the ADA), the only claims available are disparate treatment or disparate impact. Therefore, "denial of religious accommodation" alone is not a claim under Title VII.   That being the case, the plaintiff can win only by proving that the company's failure to hire (or other adverse action) is motivated by an illegal criterion:

The disparate-treatment provision forbids employers to: (1) “fail . . . to hire” an applicant (2) “because of ” (3) “such individual’s . . . religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf’s wearing of a head- scarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of” her religious practice.

 *  *  *

the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, 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.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Let us remember that this case involves a question of fact: did the company deny employment "because" she was Muslim and might seek a relaxing of the look rule?  There was evidence of that motivation in the record.  Therefore, the Court's only ruling was that the court of appeals should not have granted summary judgment. It remains to be seen if a jury would find that A&F denied employment motivated by the possibility of religious accommodation, or because they don't hire anyone with a headscarf.  Given the hiring manager's articulated suspicion, this one is not likely to go the employer's way.

This case opens up employers to claims that are based on "perceived" religious practice.  That is the employer can be wrong and still be held liable. Motivation is almost never provable before trial.  

This case also establishes that under Title VII, the employee would have to prove the motivation.  That is the employee has to prove the employer denied employment because it did not wish to accommodate the applicant. 

This case could have been avoided had management simply asked the applicant if she could abide by the look policy if hired.  That's a perfectly legal question. Then the applicant could have said "I need to wear a scarf as a religious practice."  At that point, the company would be faced with two options: accommodate, or claim undue burden. In most cases, a relaxation of a dress code can be a form of accommodation.  

Justice Thomas and Alito wrote separate concurrences in the judgment. Both believed the circuit court should not have granted summary judgment in favor of A&F, and correctly so.  But neither agreed with the majority opinion's rationale.  Justice Thomas felt that the case was one of disparate impact discrimination, seeming to ignore the evidence of unlawful bias by the hiring manager.  Justice Alito appears to claim that the case was one of reasonable accommodation law rather than intentional discrimination, i.e., failure to hire.  (Amateur Justice Valenza says they're both incorrect).

This case is EEOC v. Abercrombie & Fitch and the opinion is here. 

U.S. Supreme Court on Ministerial Exception to Title VII

The U.S. Supreme Court decided for the first time that there is a "ministerial exception" to anti-discrimination laws such as the ADA. The lower courts for many years recognized that exception.

At issue was Hosanna-Tabor Evangelical Lutheran Church and School and its discharge of a former teacher, Cheryl Perich. Perich was classified as a "called" teacher, rather than a "lay" one. Called teachers have to satisfy certain requirements, cannot be removed except for cause and by a vote of the congregation, and hold the title “Minister of Religion, Commissioned.”

As a called teacher, Perich 

taught math, language arts, social stud- ies, science, gym, art, and music. She also taught a reli- gion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.

Perich developed symptoms of narcolepsy, which resulted in her inability to perform her job. She later was discharged, after she threatened to file a Charge. The EEOC took up her case and sued on her behalf.

The District Court dismissed the case; the Sixth Circuit reversed, holding that a retaliation claim under the ADA could proceed against the Church.
The unanimous Court, recognizing there is a ministerial exception, put it this way:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The Court did not set out a specific test, but noted that (1) the Church held Perich out to be a minister (2) the Church had a ceremony and the congregation was involved in her investiture (3) she had significant religious training as a prerequisite (4) she held herself out to be a minister and even took a special tax deduction applicable only to members of a ministry (5) her duties involved significant religious teaching activities.


Based on that, the Court decided that Perich met the standards of the ministerial exemption.  The Court was careful to note that the term "minister" was misleading because the exception applies to religions that do not include "ministers."  The Court also refused to address the "parade of horribles" the EEOC argued, such as that Church employers would be exempt from wage-hour or criminal violations towards "ministerial" employees.  


The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Perich and the opinion is here.

Court of Appeal: Church-owned School Exempt from Marital Status Discrimination Claims

Sara Henry divorced and began living with a boyfriend, with whom she had a child.  She worked for the Red Hill Evangelical Lutheran Church of Tustin as a teacher and administrator for a church-owned and operated preschool.  After the church discovered Henry's living situation, it discharged her. She sued for marital status discrimination.
Henry argued the church fired her because of her "marital status" in that she was unmarried and living with her boyfriend. The church contended it was concerned with her living with her boyfriend while unmarried.  Regardless, the church won the case because it is not considered an "employer" under the Fair Employment and Housing Act.  As the court of appeal found, the definition of "employer" in FEHA ‟does not include a religious association or corporation not organized for private profit." Govt Code § 12926, subd (d).  The court also found that Henry was not covered by Title VII of the Civil Rights Act of 1964.  Therefore, without a statutory basis, her claim for wrongful termination in violation of public policy failed as well.
The case is Henry v. Red Hill Evangelical Lutheran Church of Tustin and the opinion is here.

EEOC Issues New Guidance on Discrimination Based on Religion

The Equal Employment Opportunity Commission updated its Compliance Manual's section on discrimination based on religion. View it here. This chapter covers the following, according to the EEOC:

I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.
II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

This revision gives employers and their lawyers a good opportunity to refresh their understanding of what "religion" means under Title VII and employers' obligations not only to "reasonably accommodate" religious practices, but also to refrain from discrimination, harassment and retaliation based on religion.

DGV