While pop culture and corporate America haven’t been kind to religious freedom, the Supreme Court certainly has. In cases ranging from Hosanna-Tabor Evangelical Lutheran School v. EEOC, to Burwell v. Hobby Lobby, and Holt v. Hobbs, the Court has — sometimes unanimously — reaffirmed constitutional and statutory protections for religious freedom. Today’s opinion in EEOC v. Abercrombie & Fitch continues the trend.
In Abercrombie, the Court dealt with a claim by a Muslim woman, Samantha Elauf, that the store refused to hire her because she wore a hijab, a head covering that apparently violated the company’s so-called “Look Policy,” which banned “caps” but was interpreted in this case to ban the hijab. The store knew that Elauf wore the hijab because of her faith, yet declined to hire her specifically because they knew she’d try to wear the hijab at work.
The EEOC sued Abercrombie, and the trial court ruled for Elauf and awarded her $20,000 in damages. The Tenth Circuit Court of Appeals reversed, however, holding that an employer cannot be liable for refusing to accommodate a religious practice until the applicant provides the employer with “actual knowledge” of the need for an accommodation. Justice Scalia, writing for an 8-1 majority, disagreed. What mattered was employer motive, not employer knowledge. To prevail, Scalia wrote, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”
This is the right result. The statute — Title VII — prohibits an employer from refusing to hire to an employee “because of” that employee’s religion. The statute, on its face, does not contain a knowledge requirement. Thus — as Scalia notes — if an employer makes an adverse job determination because they merely suspect that an employee may request an accommodation, it violates the statute: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
Elauf’s victory is a victory for people of all faiths (by the way, for a nation allegedly plagued with institutional Islamophobia, Muslim litigants certainly do well at the Supreme Court) and particularly critical at a time when major corporations are often leading the charge against religious free exercise. Title VII still means what it says, and people of faith cannot be shut out of the marketplace.