OMG. SCOTUS Got a Discrimination Case Right

[ESF]

Holy shit.

Even more insane.  Scalia wrote the opinion.  

www.politico.com/story/2015/06/ambercrombie-fitch-hijab-case-supreme-court-ruling-118492.html?hp=l3_4

Supreme Court rules against Abercrombie in hijab case
By MARIANNE LEVINE 6/1/15 10:44 AM EDT

The Supreme Court ruled against the retailer Abercrombie & Fitch, 8-1, deciding that the company’s failure to accommodate a job applicant who wore a hijab violated civil rights law.

The clothing chain declined to hire Samantha Elauf in 2008 as a sales associate because her hijab violated the company’s “look policy,” which at the time prohibited employees from wearing head coverings. Elauf was never informed of the “look policy.” Elauf filed a complaint with the Equal Employment Opportunity Commission.
Story Continued Below

The Equal Employment Opportunity Commission filed suit against Abercrombie, prompting the retailer to deny its policy was discriminatory because its ban prohibited all types of headgear and therefore was not based on religion.(Abercrombie has since changed its “look policy” to allow for headgear, including hijabs, which are a type of headscarf.)
Abercrombie also argued that it was up to Elauf to request accommodation. Under Title VII of the 1964 Civil Rights Act, employers must provide “reasonable accommodation without undue hardship.” The question before the court was whether the employer bore responsibility to provide that accommodation even when the employee — or in this case, prospective employee — did not ask for one. The high court ruled that it did, reversing a decision from the Tenth Circuit.

Justice Clarence Thomas in part concurred and in part dissented.

According to the Court opinion, delivered by Justice Antonin Scalia, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision” to show the employment decision violated Title VII.
“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,” the opinion said.


This was not the first time Abercrombie stood accused of discriminating against Muslims in its hiring practices. In September 2013 the retailer agreed to $71,000 in settlements after the EEOC filed two religious discrimination lawsuits. One of those lawsuits concerned a Muslim teenager fired from her stockroom job after she refused to remove her hijab. The other involved an 18-year-old Muslim job applicant allegedly denied an “impact associate” position after her interviewer asked about her hijab.

In addition, in 2005 Abercrombie paid $50 million to Latino, African-American and Asian job applicants to settle a lawsuit alleging lack of diversity.

The Elauf case was a significant win for religious advocacy groups. In December, the Council on American-Islamic Relations filed an amicus brief with the Supreme Court, recommending that it overturn the Tenth Circuit’s ruling on the grounds that “it places unreasonable burdens on individual job candidates and employees who outwardly display their religion through dress and grooming practices.”

A court ruling in favor of Abercrombie would have also had implications for pregnancy and disability requests, since it would have freed employers from the obligation to accommodate pregnant or disabled workers unless asked explicitly asked to do so.

During oral arguments in February, when Abercrombie & Fitch’s attorney, Shay Dvoretzky, argued that questions about religious beliefs were personal, Justice Elena Kagan countered that not asking about them risked greater harm.
“You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation, to ask some questions,” Kagan said. “You’re saying we should structure the whole legal system to make sure there is no possibility of that awkward conversation ever taking place.”

Justice Samuel Alito, however, pointed out that job applicants are not beholden to Abercrombie’s dress code, and that the company logically assumed, because Elauf wore a headscarf, that she would not comply with the dress code.

“Maybe she’s just having a bad hair day, so she comes in with a headscarf, but she doesn’t have any religious reason for doing it,” he said. “Would you reject her for that? No. The reason she was rejected was because you assumed she was going to do this everyday, and the only reason why … is because she had a religious reason.”


Read more: www.politico.com/story/2015/06/ambercrombie-fitch-hijab-case-supreme-court-ruling-118492.html#ixzz3bpBWlToR

[charminglife]

With an 8-1 majority, too. I'm shocked, in a good way!

[josieposy]

Woah.

[Cicero]

Correct decisions all over the place today.

[suzyp]

I love that your prediction this morning was wrong! 8-1!

[2curlydogs]

What the hell was Thomas's problem? Other than being, you know, Thomas.

[mominatrix]

Jun 1, 2015 11:40:17 GMT -5 2curlydogs said:

What the hell was Thomas's problem? Other than being, you know, Thomas.

fucking idiot.
 

here's what the politico piece said:

In a dissent, Justice Clarence Thomas Thomas found the majority’s interpretation of Title VII too broad and said Abercrombie’s “look policy” was “neutral.”

“Merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant ‘less favorably than others,’” Thomas wrote.


Read more: www.politico.com/story/2015/06/ambercrombie-fitch-hijab-case-supreme-court-ruling-118492.html#ixzz3bprEXh36

the man sits on SCOTUS and hasn't figured out that Title VII requires no disparate treatment when it comes to race, religion, national origin, sex... AND it requires that religions be reasonably accommodated (like ADA requires reasonable accommodations for people with disabilities)...

so...

neutral policy neutrally applied... that's fine on a disparate treatment theory... like, employer has a policy that says "everybody has to show up for work on time"... you're late, you're subject to discipline.  

reasonable accommodation theory is different, though. It requires that OTHERWISE neutral policies may need to be ... tweaked... in order to accommodate religion (or disability)...

so... employer has a policy that says "no hats"... and you have an applicant who's wearing a yarmulke.  You can't show them the door because they're refusing to remove it. That may be a neutral policy neutrally applied, but it violates a different part of the law because it's a failure to accommodate. 

See also: break policies and individuals required to take time to pray. weekend work policies and sabbath requirements. etc.

[sugarglider]

Jun 1, 2015 11:40:17 GMT -5 2curlydogs said:

What the hell was Thomas's problem? Other than being, you know, Thomas.

I only skimmed his dissent, but this is what I think happened...

Discrimination claims are typically evaluated under different frameworks--disparate treatment, disparate impact, failure to accommodate, etc. I coincidentally happened upon another opinion, a majority opinion penned by Thomas, that emphasized using the correct framework for the case. I think that's what he's stuck on here.

When a facially neutral policy (that is, one that is seemingly unrelated to any protected category) is applied to all people the same way, a disparate impact framework is used. Testing cases tend to fall under this framework. Thomas said because the "no headwear" policy was neutral, plaintiff should have argued under disparate impact instead of disparate treatment. She should have said the look policy results in a disparate impact on Muslims.

However, Thomas seems to forget that religion is unique under Title VII in that employers have a duty to accommodate or at least try to do so (obv there's a duty to accommodate disabilities under the ADA as well). That brings this back to an individual inquiry about this plaintiff and her facts.

As someone who practices employment law, I'm happy Scalia wrote the opinion. He and RBG are the most straightforward writers, and I like clear rules.

[blink]

I've been busy so I didn't see this until now. But I am so glad they got this one right, and the large majority is a nice plus.

[secretlyevil]

This one they did right. I read an article about the decision that overturned the guilty verdict for the guy who wrote threatening stuff about his ex-wife, etc. on FB. I was pretty torn about it. I wanted to post the article here and get everyone's thoughts but of course I can't find it now.

[mominatrix]

yeah, as much as they got this one right, I'm terribly scared about the Fair Housing one that's in the pipeline...

that has the potential to break everything if they get it wrong.

[iammalcolmx]

I have a few questions. Who the HELL told her she wasn't being considered anymore because of her headscarf? Also even though it's painfully obvious she was wearing this for religious reasons, it seems like the employers now have to assume someone wants an accommodation without someone asking for one correct?  mominatrix sugarglider IIOY  I would love your input.

[mominatrix]

Jun 2, 2015 11:39:40 GMT -5 iammalcolmx said:

I have a few questions. Who the HELL told her she wasn't being considered anymore because of her headscarf? Also even though it's painfully obvious she was wearing this for religious reasons, it seems like the employers now have to assume someone wants an accommodation without someone asking for one correct?  mominatrix sugarglider IIOY  I would love your input.

I'd put it as the court is requiring that employers... who by virtue of their status AS employers, are more educated about employment law than somebody applying for a job at Abercrombie and Fitch... they're required to actually comply with the spirit of the law.


So... applicant comes in wearing a headscarf.
A&F has a no-hat policy.
A&F can't out-of-hand reject the applicant because of the headscarf.
A&F CAN/SHOULD ask the applicant about the headscarf. "So, why are you wearing a headscarf?" or, "We have a policy that bans headwear without a religious reason..."

...if A&F says to a person that they can't work in a 'hat', that it violates their policy, so no job for you... the person MIGHT NOT know their rights... might not know that they can say, "hey! my religion requires I keep my head covered! That's a problem! You have to accommodate me!"...

this interpretation puts the knowledge-of-the-law requirements back on the employer where they belong.

[sugarglider]

Jun 2, 2015 11:39:40 GMT -5 iammalcolmx said:

I have a few questions. Who the HELL told her she wasn't being considered anymore because of her headscarf? Also even though it's painfully obvious she was wearing this for religious reasons, it seems like the employers now have to assume someone wants an accommodation without someone asking for one correct?  mominatrix sugarglider IIOY  I would love your input.

Yeah; the interactive process starts sooner. I think this mostly impacts training on hiring practices. If something about an applicant's appearance leads the interviewer to believe the applicant would not be able to comply with a specific policy, those hiring managers should consider if that practice could be a religious practice. That can be tricky if it's something that could be religious but might not be--like a beard. The process from there will vary based on the employer and the policy at hand. [insert pitch about consulting with counsel here ]

[iammalcolmx]

Jun 2, 2015 11:49:31 GMT -5 mominatrix said:

Jun 2, 2015 11:39:40 GMT -5 iammalcolmx said:

I have a few questions. Who the HELL told her she wasn't being considered anymore because of her headscarf? Also even though it's painfully obvious she was wearing this for religious reasons, it seems like the employers now have to assume someone wants an accommodation without someone asking for one correct?  mominatrix sugarglider IIOY  I would love your input.

I'd put it as the court is requiring that employers... who by virtue of their status AS employers, are more educated about employment law than somebody applying for a job at Abercrombie and Fitch... they're required to actually comply with the spirit of the law.


So... applicant comes in wearing a headscarf.
A&F has a no-hat policy.
A&F can't out-of-hand reject the applicant because of the headscarf.
A&F CAN/SHOULD ask the applicant about the headscarf. "So, why are you wearing a headscarf?" or, "We have a policy that bans headwear without a religious reason..."

...if A&F says to a person that they can't work in a 'hat', that it violates their policy, so no job for you... the person MIGHT NOT know their rights... might not know that they can say, "hey! my religion requires I keep my head covered! That's a problem! You have to accommodate me!"...

this interpretation puts the knowledge-of-the-law requirements back on the employer where they belong.

Good point.