High court: Religious practice protected at work

With a definitive 8-1 ruling, the U.S. Supreme Court established protections for religious practice in the workplace. If employers suspect they need to accommodate a religious practice, the court ruled, they should work to accommodate that practice.

In 2008, managers at an Abercrombie & Fitch clothing store in Tulsa, Okla., denied 17-year-old Samantha Elauf a job. Elauf received favorable scores in the application and interview process, but the managers decided against hiring her, citing her hijab. Elauf is a practicing Muslim and her hijab, or headscarf, didn’t conform with Abercrombie’s dress code for employees on the floor.

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 Abercrombie managers decided not to hire Elauf because of her headscarf, but they didn’t ask her about it or try to work out an accommodation. The Equal Employment Opportunity Commission (EEOC) sued on Elauf’s behalf.

The 10th U.S. Circuit Court of Appeals ruled in favor of Abercrombie, saying Elauf hadn’t asked for an accommodation, and therefore, the company couldn’t be accused of religious discrimination.

The almost-unanimous Supreme Court disagreed, saying 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.’”

In the February arguments, Scalia seemed the most critical of Elauf’s case, which provides another reason not to read too much into how the justices respond during oral arguments. Justice Clarence Thomas was the lone dissent. He said Abercrombie was simply applying “a neutral policy,” which didn’t count as “intentional discrimination.”

The ruling has implications for anyone practicing their beliefs in the workplace—including Christians who don’t want to work on Sundays. Religious groups—evangelical, Muslim, Sikh, and Jewish—filed an amicus brief together in the case, arguing on Elauf’s behalf.

And lawyers from the Becket Fund for Religious Liberty filed a brief arguing: “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.”

The court agreed.