'Favored treatment'

The Supreme Court on June 1 set a high bar for employers to accommodate religious practice in the workplace, siding with a Muslim woman who was denied employment over her hijab. The court ruled 8-1 that employers can’t claim ignorance as a way of avoiding accommodating religious practice in the workplace.

The ruling has already affected other similar cases and has implications for anyone practicing his or her beliefs in the workplace, such as Christians who don’t believe in working on Sundays. Evangelical, Muslim, Sikh, and Jewish groups filed an amicus brief together in the case, arguing on the woman’s behalf.

“The law may not assume that people are irreligious unless proven otherwise, and it should not assume that the workplace is a religion-free zone,” wrote lawyers from the Becket Fund for Religious Liberty in a separate brief.

In 2008, managers at an Abercrombie & Fitch clothing store in Tulsa, Okla., denied Samantha Elauf, then age 17, a job, despite Elauf’s favorable scores in the application and interview process. The managers cited her hijab in deciding against hiring her. Elauf is a practicing Muslim and her hijab, or headscarf, didn’t conform with Abercrombie’s dress code for employees on the floor. But they didn’t ask her about it or try to work out an accommodation.

Under Title VII of the Civil Rights Act, employers cannot discriminate in hiring on the basis of religion, and they are supposed to provide reasonable accommodation of religious practice if it doesn’t expose them to “undue hardship.” The almost unanimous Supreme Court said the burden of accommodation was on Abercrombie. The company would violate Title VII as long as not accommodating religious practice was part of the motive in not hiring someone.

“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” wrote Justice Antonin Scalia in a short, tight opinion, coming in under seven pages. “[A]n 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.”

The court said religious practice has special protection under Title VII.

“Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices,” Scalia wrote. “Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of such individual’s religious observance and practice.’”

Justice Clarence Thomas was the only dissenting vote.

The ruling had immediate effect on another religious employment case. Last summer in Nobach v. Woodland Village Nursing Center, the 5th Circuit had ruled against a Jehovah’s Witness employed at a nursing home who had been fired for refusing to pray the rosary with a patient. The employee told her boss when she was fired that praying the rosary was against her religion.

The 5th Circuit ruled that Woodland wasn’t liable because the company didn’t have sufficient knowledge of her religious objection. A week after the EEOC v. Abercrombie & Fitch ruling the Supreme Court ordered the 5th Circuit to reconsider the Woodland case in light of Abercrombie.