The long-awaited EEOC v. Abercrombie & Fitch case was released by the U.S. Supreme Court this morning, reversing the Tenth Circuit’s decision. You can download it here.
For anyone following the case, the decision shouldn’t come as a big surprise. I’ve talked about the case before here and here.
The main holding of the case is this:
To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.
The court is quick to note that some anti-discrimination statutes DO require knowledge, such as the ADA. But Title VII does not. And in that silence, the court said that it could not interpret the statute to include one.
The opinion, written by Scalia, explains the difference between knowledge and motive:
Instead, 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.
The decision is unusually brief — just seven pages, perhaps reflecting the clear-cut nature of the case.
Take note of footnote three too. The case is decided on narrower grounds than is typically laid out in the press:
While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument . It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.
For employers, this decision should not come as much of a surprise. And for employers, it means remaining aware that accommodating a person’s religious belief doesn’t necessarily require your actual knowledge. Be understanding in your approach to these issues.
The EEOC’s statement earlier this year on accommodating religious beliefs still holds some sway too.
Some will argue (as they already have this morning) that the decision puts employers in a no-win situation. I think that overstates it. Employers should use common sense and discuss the topic if there appears to be an issue with an employer’s existing policy.