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Justice Scalia Finds A Civil Rights Case He Can Support

CREDIT: AP PHOTO/DAVID TULIS
CREDIT: AP PHOTO/DAVID TULIS

A Muslim job applicant, who was not hired by clothing retailer Abercrombie & Fitch because the headscarf she wore for religious reasons violated the company’s employee dress code, won an 8–1 decision in the Supreme Court on Monday.

As Justice Antonin Scalia explains in a majority opinion on behalf of himself and six other justices (Justice Samuel Alito wrote a separate concurring opinion; Justice Clarence Thomas dissented), this is an easy case. Federal law prohibits employers from refusing to hire an applicant “because of such individual’s race, color, religion, sex, or national origin.” Another provision of the same law provides that the word “religion” includes “’all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to’ a ‘religious observance or practice without undue hardship on the conduct of the employer’s business.’” So employers are under a fairly broad obligation to accommodate the religious beliefs of their employees.

A federal appeals court, however, held that this rule only applies “where an applicant has informed the employer of his need for an accommodation,” as was not the case here. Scalia’s opinion disagrees. As he explains, “the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.” Thus, for example, an employer who suspects, but does not know with certainty, “that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays” violates the law if their decision not to hire this applicant is motivated in part by “the employer’s desire to avoid the prospective accommodation” of permitting the applicant to have Saturdays off.

Scalia, it should be noted, emphasizes several reasons why this case, EEOC v. Abercrombie & Fitch Stores was an easy case. Unlike the Americans with Disabilities Act, for example, which does require employers to accommodate “known physical or mental limitations,” Title VII of the Civil Rights Act of 1964, which is at issue in this case, “does not impose a knowledge requirement.” He also writes that Title VII gives “favored treatment” to plaintiffs alleging religious discrimination, “affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s’ ‘religious observance and practice.’”

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Nevertheless, Abercrombie is consistent with a pattern in the Roberts Court, which has generally been skeptical of civil rights claims while also being fairly open to civil rights cases alleging religious discrimination. Just last January, for example, the Supreme Court unanimously ruled in favor of a Muslim inmate who wished to grow a short beard in violation of a prison policy. Meanwhile, the Court is widely expected to drastically reduce the effectiveness of federal fair housing law this month, even though every federal appeals courts that considered the federal ban on housing discrimination rejects the case for weakening the law.