At Supreme Court, Religious Bias Is The Only UnAmerican Fashion

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

The U.S. Supreme Court is virtually certain to reverse the Tenth Circuit’s 2013 holding that an employer can’t be liable for failing to hire a job applicant based on religious practice unless the applicant has preemptively asked for an accommodation.

How can we be sure of this outcome? For starters, in today’s oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc., not even the employer’s attorney cared to defend the lower court’s position — a position that Justice Stephen Breyer caustically characterized as “unless you receive direct, explicit notice [of a need for accommodation], you’re home free to do what you want.”

In response to one of the first questions he received, Shay Dvoretzky — representing Abercrombie, the giant retailer — disavowed the Tenth Circuit, saying that applicants don’t “necessarily” need to give explicit notice as long as the employer knows of their need in “some way” that is “traced to the employee.”

Even after this expedient adjustment, however, Mr. Dvoretzky faced a wall of negativity when arguing for the preppy clothing store, which a trial court had found liable for discriminating against Samantha Elauf, a Muslim job seeker who interviewed in a headscarf, or hijab, that supposedly clashed with the store’s image.

The Tenth Circuit later reversed that judgment, saying that Abercrombie couldn’t be blamed for failing to offer something that Ms. Elauf never requested, and setting up today’s battle.

At least five justices showed during arguments that their sympathy lay with Ms. Elauf — including Justice Samuel Alito, who concocted a fanciful scenario where Abercrombie faced a phalanx of religious job applicants including a Catholic nun wearing a habit. Would Abercrombie still require the nun to say that she might need some flexibility on the store’s dress code, so that the employer couldn’t argue (as it did with Ms. Elauf) that her garb might have been “a fashion statement”?

“One can certainly imagine cases in which it is more obvious than others,” allowed Mr. Dvoretzky grudgingly, only to assert that any rule that requires an employer to make such judgments would be “unadministrable” and invite stereotyping.

Justice Alito’s hammering of Abercrombie — including a telling remark that the retailer must have believed that Ms. Elauf wore her headscarf for religious reasons, or it never would have assumed she would flunk its dress code when hired — was one signal that Mr. Dvoretzky could not rely on the Court’s conservative wing for support.

Another signal that the Court’s ideological divide won’t apply: A lack of engagement from Justice Antonin Scalia, who lapsed mostly into unimpressed silence and chair-rocking after Mr. Dvoretzky started talking. Justice Scalia had been his usual grumpy-but-engaged self during arguments by Deputy Solicitor General Ian Gershengorn, who spoke for the U.S. Equal Employment Opportunity Commission — although his irritation focused mostly on the EEOC’s mushy wording of proposed judicial rules, not necessarily on the rules themselves.

Chief Justice John Roberts and Justice Anthony Kennedy, meanwhile, seemed mildly disposed toward the EEOC. Along with clear support from Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan, this raised the prospect of a 9-0 ruling for Ms. Elauf.

(As is his custom, Justice Clarence Thomas held his peace during arguments; he rarely dissents by himself, however.)

The EEOC did not have entirely plain sailing: While Mr. Gershengorn showed command at the lectern, Justice Scalia was not the only person to object to his prescription for ambiguous workplace situations — scenarios where an employer suspects a job applicant might have a religious need, for instance, but simply is not sure.

First, while most justices seemed to agree that employers need not “know” to a certainty that an applicant will require accommodation, “that does raise the question … how much less than certainty” is sufficient to put a hiring manager on notice, as Justice Kagan put it. Various words (“understands, knows, believes, suspects,” rattled off Justice Scalia) and percentages (“two out of three,” “50/50,” and “40 percent” all came from Justice Kagan) were tossed around, with no clear outcome.

And second, the justices seemed mostly to believe that — once on notice — an employer should engage the employee in dialog rather than, as Mr. Gershengorn suggested, starting by assuming “there is no conflict.”

For a while, Mr. Gershengorn stuck to his guns. “The right thing for the employer to do is to assume that there isn’t a religious problem, to not engage in the stereotyping and assume that the person could comply” with work rules, he said.

Ultimately he seemed to bend, however, mostly acceding to a form of dialog suggested as a first step by Justices Sotomayor, Breyer, and Alito. As Justice Sotomayor put it, using the example of facial hair that might be worn for religious reasons: “[W]hy can’t the employer just simply say, we have a … policy that doesn’t permit beards. Can you comply with that policy?”

“Right,” said Mr. Gershengorn. “There are two options. … [You] can assume the person doesn’t wear it for religious reasons and then hire them; or if you’re concerned about it, you can ask a specific question.”

Despite such back-and-forth, however, Mr. Gershengorn never faced clear slap-downs of the type endured by Mr. Dvoretzky.

In the most notable example, Abercrombie’s lawyer insisted several times that the retailer’s policy against salespeople wearing headgear — since modified — didn’t violate Title VII of the Civil Rights Act of 1964, the statute at issue, because it was applied evenhandedly to both headscarves and baseball caps.

“That doesn’t work in a case like this,” Chief Justice Roberts warned him. “It’s not a question, are you treating everybody the same. You have an obligation to accommodate people with particular religious practice or beliefs, so to keep constantly saying, oh, we would have treated somebody with a baseball cap the same way doesn’t seem to me is very responsive.”

Mr. Dvoretzky persisted, however, and soon earned a matching rebuke from Justice Ginsburg.
“Title VII doesn’t require accommodating baseball caps,” she said firmly, “but it does require accommodating to religious practices.”

In a sort of psychic resonance, the argument then turned to “awkward conversations” — and the true purpose of Title VII.

“[Y]ou’re essentially saying,” said Justice Kagan, “that the problem with the [EEOC’s proposal] is that it requires Abercrombie to … ask some questions. … [Y]ou’re saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But the alternative [is] where Abercrombie just gets to say, we’re going to stereotype people and prevent them from getting jobs. … Now, between those two options … which does this statute seem to think is the worst problem?”

Mr. Dvoretzky answered tersely — and mistakenly: “Justice Kagan, the problem is not having awkward conversations. The problem is that the EEOC’s rule would lead employers to treat people differently based on their religion, which is precisely the opposite of what Title VII wants.”

Justice Ginsburg was irritated. Quietly but forcefully, she corrected him yet again: “Title VII requires them to treat people who have religious practices differently. They don’t have to accommodate a baseball cap. They do have to accommodate a yarmulke.”

The courtroom’s mood changed. Abercrombie’s lawyer had been schooled, and the unusually young and diverse audience — many were students themselves, it seemed — shifted in shared pain and exhilaration.

After arguments closed, a wave of these spectators spilled onto the Court’s cold plaza, where Ms. Elauf soon emerged to face cameras and questions, beaming.

“That was so cool,” many said as they left.