Historic
U.S. Supreme Court Judgement
A
historic decision was made in the U.S. Supreme Court on Monday 1st
June.
It involved the case EEOC
v. Abercrombie & Fitch.
It is historic not just for the
majority decision or judgement but also for what is probably Justice
Clarence Thomas' finest dissenting Opinion ever made as a Supreme
Court Justice.
It is a case of enormous
significance the reverberations of which will echo across America in
the context of Civil Rights, Religious Freedom and the separation of
Church and State.
I will admit that I have a personal
interest in this judgement because many years ago I had knowledge of
a similar situation along the lines of Abercrombie & Fitch which never reached the Courts. The
decision in the matter was not based on prejudice but on policy issues – but it
likewise could (and perhaps was) perceived as based on personal
prejudices.
[Indeed for over two decades Ross Perot, the Founder of EDS, as a matter of
company policy, would never hire any employee who wore a beard or
moustache and it's Texas headquarters for new recruits was more
akin to Boot Camp than induction training.]
This issue of headscarves also has a
personal significance. I grew up in a very traditional Christian
community where women always covered themselves with a semi-veil or headscarf going into Church out
of respect and tradition rather than because there were prohibitions
against going uncovered.
For example, my mother and aunt
would never think of going into a Church uncovered (without a
headscarf) because such would be highly disrespectful.
The
Case
centered around Samantha Elauf, a
lady who wore a headscarf to her job interview with the firm
Abercrombie & Fitch. They decided that while she ws qualified
for the job, wearing a headscarf at work would be contrary to their
'appearance' policy. On this basis they refused to employ her.
The EEOC took on her case. The
trial court ruled in favor of the EEOC-Elauf. Abercombie & Fitch
appealed. This decision was reversed by an appeals court who
decided in favor of Abercrombie & Fitch.
By an 8-1 vote the U.S. Supreme
Court have now reversed this decision.
What is even more important is the
ruling by Justice Antonin Scalia who delivered the Opinion of The
Court:
''Samantha Elauf is a practicing
Muslim who, consistent with
her understanding of her religion’s requirements,wears a
headscarf.........
Title
VII of the Civil Rights Act of 1964 78 Stat. 253, as amended,
prohibits two categories of employment practices. It is unlawful for
an employer:
“(1)
to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national
origin;
or
(2)to
limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual’s race, color,
religion, sex, or national origin.”
These
two proscriptions, often referred to as the “disparate treatment”
(or “intentional discrimination”) provision and the “disparate
impact” provision, are the only causes of action under Title VII.
The word “religion” is defined to “includ[e] 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 in the conduct of the
employer’s business.” §2000e(j).Abercrombie’s primary argument
is that an applicant cannot show disparate treatment without first
showing that an employer has “actual knowledge” of the
applicant’s need for an accommodation. We disagree. Instead, an
applicant need only show that his need for an accommodation was a
motivating factor in the employer’s decision........''
2
''The
disparate-treatment provision forbids employers to:
(1)
“fail
. . . to hire” an applicant (2) “because of ” (3) “such
individual’s . . . religion” (which includes his religious
practice). Here, of course, Abercrombie (1) failed to hire Elauf. The
parties concede that (if Elauf sincerely believes that her religion
so requires) Elauf ’s wearing of a head scarf is (3) a “religious
practice.” All that remains is whether she was not hired (2)
“because of ” her religious practice.''
Concurring
with the Judgement Justice Samuel Alito Jr.,added:
''In
sum, the EEOC was required in this case to prove that Abercrombie
rejected Elauf because of a practice that Abercrombie knew was
religious. It is undisputed that Abercrombie
rejected Elauf because she wore a headscarf, and there is ample
evidence in the summary judgment record to prove that Abercrombie
knew that Elauf is a Muslim
and that she wore the scarf for a religious reason. The Tenth
Circuit therefore erred in ordering the entry of summary judgment
for Abercrombie. On remand, the Tenth
Circuit can consider whether there is sufficient evidence to support
summary judgment in favor of the EEOC on the question of
Abercrombie’s knowledge. The Tenth
Circuit will also be required to address Abercrombie’s claim that
it could not have accommodated Elauf ’s wearing the headscarf on
the job without undue hardship.''
The Dissenting Voice (concurring in part and dissenting in other parts) In This Case Was That Of Justice Clarence Thomas:
''JUSTICE
THOMAS,
concurring in part and dissenting in part.''
''I
agree with the Court that there are two—and only two—causes of
action under Title VII of the Civil Rights Act of 1964 as understood
by our precedents: a disparate treatment
(or intentional-discrimination) claim and a disparate-impact claim. Ante,at
3. Our agreement ends there.
Unlike the majority, I adhere to what I had thought before today was
an undisputed proposition: Mere application of a neutral policy
cannot constitute “intentional discrimination.” Because the Equal
Employment Opportunity Commission (EEOC) can prevail here only if
Abercrombie engaged in intentional discrimination, and because
Abercrombie’s application of its neutral Look Policy does not meet
that description, I would affirm the judgment of the Tenth Circuit.''
I
''This
case turns on whether Abercrombie’s conduct constituted
“intentional discrimination” within the mean ing of 42 U. S. C.
§1981a(a)(1). That provision allows a Title VII plaintiff to
“recover compensatory and punitive damages” only against an
employer “who engaged in unlawful intentional discrimination (not
an employment practice that is unlawful because of its disparate
impact).” The damages award EEOC obtained against Abercrombie is
thus proper only if that company engaged in “intentional
discrimination”—as opposed to “an employment practice that is
unlawful because of its disparate impact”—within the meaning of
§1981a(a)(1).
The
terms “intentional discrimination” and “disparate impact”
have settled meanings in federal employment discrimination law.
“[I]ntentional discrimination . . .
occur[s]
where an employer has treated a particular person less favorably than
others because of a protected trait.” Ricci v.DeStefano, 557 U. S.
557, 577 (2009) (internal quotation marks and alteration omitted).
“[D]isparate-impact
claims,” by contrast, “involve employment practices that are
facially neutral in their treatment of different groups but that in
fact fall more harshly on one group than another and cannot be
justified by business necessity.” Raytheon Co.v.Hernandez , 540 U.
S. 44, 52 (2003) (internal quotation marks omitted). Conceived by
this Court in Griggs v. Duke Power Co., 401 U. S. 424 (1971), this
“theory of discrimination” provides that “a facially neutral
employment practice may bedeemed illegally discriminatory without
evidence of the employer’s subjective intent to discriminate that
is required in a disparate-treatment case,” Raytheon, supra,at
52–53 (internal quotation marks and alteration omitted).
I
would hold that Abercrombie’s conduct did not constitute
“intentional discriminatio
n.”
Abercrombie refused to create an exception to its neutral Look Policy
for Samantha Elauf ’s religious practice of wearing a headscarf.
Ante,at 2. In doing so, it did not treat religious practices less
favorably than similar secular practices, but instead remained
neutral with regard to religious practices. To be sure, the effects
of Abercrombie’s neutral Look Policy, absent an accommodation, fall
more harshly on those who wear headscarves as an aspect of their
faith. But that is a classic case of an alleged disparate impact. It
is not what we have previously understood to be a case of disparate treatment
because Elauf received the same treatment from Abercrombie as any
other applicant who appeared unable to comply with the company’s
Look Policy. See ibid.
; App. 134, 144. Because I cannot classify Abercrombie’s conduct as
“intentional discrimination,” I would affirm. ''
II
A
''Resisting
this straightforward application of §1981a, the majority expands the
meaning of “intentional discrimination” to include a refusal to
give a religious applicant“favored
treatment.” Ante,at 6–7. But contrary to the majority’s
assumption, this novel theory of discrimination is not commanded by
the relevant statutory text. Title VII makes it illegal for an
employer “to fail or refuse to hire . . . any individual . . .
because of such individual’s . . . religion.” §2000e–2(a)(1).
And as used in Title VII, “[t]he term ‘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 an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the
employer’s business.” §2000e(j). With this gloss on the
definition of “religion” in §2000e 2(a)(1), the majority
concludes that an employer may violate Title VII if he “refuse[s]
to hire . . . any individual . . . because of such individual’s . .
. religious . . . practice” (unless he has an “undue hardship”
defense). See ante,at 3–4. But inserting the statutory definition
of religion into §2000e–2(a) does not answer the question whether
Abercrombie’s refusal to hire Elauf was “because of her religious
practice.” At first glance, the phrase “because of such
individual’s religious practice” could mean one of two things.
Under one reading, it could prohibit taking an action because of the
religious nature of an employee’s particular practice. Under the
alternative reading, it could prohibit taking an action because of an
employee’s practice that happens to be religious.''
''The
distinction is perhaps best understood by example. Suppose an
employer with a neutral grooming policy forbidding facial hair
refuses to hire a Muslim who wears a beard for religious reasons.
Assuming the employer applied the neutral grooming policy to all
applicants, the motivation behind the refusal to hire the Muslim
applicant would not be the religious nature of his beard, but its
existence. Under the first reading, then, the Muslim applicant would
lack an intentional-discrimination claim, as he was not refused
employment “because of ” the religious nature of his practice.
But under the second reading, he would have such a claim, as he was
refused employment “because of ” a practice that happens to be
religious in nature. ''
''One
problem with the second, more expansive reading is that it would
punish employers who have no discriminatory motive. If the phrase
“because of such individual’s religious practice” sweeps in any
case in which an employer takes an adverse action because of a
practice that happens to be religious in nature, an employer who had
no idea that a particular practice was religious would be penalized.
That strict-liability vi ew is plainly at odds with the concept of
intentional discrimination. Cf.Raytheon, supra,at 54, n. 7 (“If
[the employer] were truly unaware that such a disability existed, it
would be impossible for her hiring decision to have been based, even
in part, on[the applicant’s] disability. And, if no part of the
hiring decision turned on [the applicant’s] status as disabled, he
cannot, ipso facto, have been subject to disparate treatment”).
Surprisingly, the majority leaves the door open to this
strict-liability theory, reserving the question whether an
employer who does not even “suspec[t] that the practice in question
is a religious practice” can nonetheless be punished for
intentional discrimination. ''
Ante,at
6, n. 3. ''For purposes of today’s decision, however, the majority
opts for a compromise, albeit one that lacks a foothold in the text
and fares no better under our precedents. The majority construes
§2000e–2(a)(1) to punish employers
who
refuse to accommodate applicants under neutral policies when they act
“with the motive of avoiding accommodation.”
Ante,
at 5. ''But an employer who is aware that strictly applying a neutral
policy will have an adverse effect on a religious group, and applies
the policy anyway,
is
not engaged in intentional discrimination, at least as that term has
traditionally been understood. As the Court explained many decades
ago, “ ‘Discriminatory purpose’i.e., the
purpose necessary for a claim of intentional discrimination—demands
“more than . . . awareness of consequences. It implies that the
decisionmaker . . . selected or
reaffirmed a particular course of action at least in part ‘because
of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.” ''Personnel Administrator of Mass. v.Feeney ,
442 U. S. 256, 279 (1979) (internal citation and footnote omitted).
I do not dispute that a refusal to accommodate can, in some
circumstances, constitute intentional discrimination. If an employer
declines to accommodate a particular religious practice, yet
accommodates a similar secular (or other denominational) practice,
then that may be proof that he has “treated a particular person
less favorably than others because of [a religious practice].”
Ricci , 557 U. S., at 577 (internal quotation marks and alteration
omitted); see also, e.g., Dixon v. Hallmark Cos., 627 F. 3d 849, 853
(CA11 2010) (addressing a policy forbidding display of “religious
items” in management offices). But merely refusing to create an
exception to a neutral policy for a religious practice canno t be
described as treating a particular applicant “less favorably than
others.” The majority itself appears to recognize that its
construction requires something more than equal treatment. See ante,
at 6–7 (“Title VII does not demand mere neutrality with regard to
religious practices,” but instead “gives them favored
treatment”). But equal treatment is not disparate treatment, and
that basic principle should have disposed of this case.
''…......................''The Court today rightly puts to rest the
notion that Title VII creates a freestanding religious-accommodation
claim, ante,at 3, but creates in its stead an entirely new form of
liability: the disparate-treat ment-based-on-equal-treatment claim.
Because I do not think that Congress’ 1972 redefinition of
“religion” also redefined “intentional discrimination,” I
would affirm the judgment of the Tenth Circuit. I respectfully
dissent from the portions of the majority’s decision that take the
contrary view. ''
[Judgement ends]
References:
The
above picture/print is either in The Holy Land, Persia, Ottoman Syria,
Yemen or other Persian Gulf area circa 1896-1902
©Patrick
Emek, 2015
