By Lisa Keen
Jon Davidson
It is a rare occasion when LGBT legal activists find themselves on the same side of a case as the conservative Christian Legal Society and the National Association of Evangelicals. It is also rare to find LGBT legal activists on the same side as conservative Justice Antonin Scalia and his fondness for hewing to the original explicit language of a law.
But so it was with EEOC v. Abercrombie & Fitch June 1, when the U.S. Supreme Court ruled that an employer cannot escape federal law's requirement to accommodate a job applicant's religious practices by claiming the applicant never told the employer about his or her religious practices.
The case did not involve an LGBT person, but it did involve a scenario with which LGBT job applicants are familiar: where an employer quietly presumes something about the applicant based on the applicant's appearance and then denies the applicant a job based on that suspicion.
In this case, the employer made a presumption based on a piece of attire. The case involved a woman who applied for a job at a national clothing chain store. Because the young woman, Samantha Elauf, is Muslim, she wore a black hijab to the interview, a headscarf that many Muslim women wear in response to the Quran's directive that women cloak their sexuality in public.
During her job interview for a sales rep position with Abercrombie & Fitch, Elauf did not speak about her religion, and her interviewer did not ask about it. But after the interview, the interviewer asked an Abercrombie district manager whether the woman's headscarf would violate the company's "look policy" against sales reps wearing caps and the color black.
The interviewer said she told her supervisors that Elauf was Muslim, but the district manager said he had no knowledge that Elauf wore the scarf for religious reasons. The district manager instructed the interviewer to reject Elauf for the job. A friend of Elauf's who worked at the store told her she was rejected for the position because of her hijab.
Elauf sought help from the the U.S. Equal Employment Opportunity Commission (EEOC), which filed suit against Abercrombie, saying it had violated Title VII of the Civil Rights Act of 1964. In a relevant part, the Act says, "It shall be an unlawful employment practice for an employer to fail or refuse to hire… any individual.. because of such individual's… religion…" It also prohibits employers from classifying applicants because of their religion in order to disadvantage them.
Title VII also prohibits discrimination based on race, color, sex and national origin, but not based on sexual orientation or gender identity. However, in a 1989 decision, Price Waterhouse v. Hopkins, the Supreme Court said Title VII covered discrimination based on "sex stereotyping." And the EEOC has been accepting complaints of discrimination based on a person's sexual orientation or gender identity as potential Title VII claims.
Abercrombie argued that it's rejection of Elauf couldn't be in violation of Title VII because it never had "actual knowledge" that Elauf wore her black headscarf for religious reasons. The 10th Circuit U.S. Court of Appeals agreed.
The National Center for Lesbian Rights joined a brief filed by the American Jewish Committee that criticized the 10th Circuit opinion as a sort of "don't ask, don't tell" approach "for any employer who wants to engage in intentional hiring discrimination based on religion."
"Rewarding such willful or pretended ignorance (or worse) is the antithesis of how Title VII is meant to work," said the brief.
In an online essay, Gregory Nevins, employment fairness program specialist for Lambda Legal, explained why his group filed a brief on Elauf's behalf. First, he said, Lambda was concerned the Supreme Court might issue "an overly broad ruling, extolling the primacy of workers' religious rights, because many employees have cried religious discrimination when disciplined for actions harassing and even menacing to their coworkers, including LGBT workers."
But Lambda's brief also argued that Title VII simply does not include any language that gives an employer a pass on accommodating an employee's religious practices by claiming the employee never told the employer about his or her religion.
Lambda said it has seen a "disturbing tendency" by the lower courts to dismiss certain Title VII claims — including many by LGBT workers — by creating new "rules and prerequisites" that are not in the language of Title VII. In the 10th Circuit's case, the new rule was that an employee or applicant had to inform the employer of their religious practices and work out some potential accommodation in advance.
But in an 8 to 1 decision (with only Justice Clarence Thomas dissenting), the Supreme Court said Abercrombie violated Title VII when it failed to hire Elauf because it suspected she was Muslim and that she would likely seek accommodation at work for her religious beliefs.
The decision, authored by Scalia, said, "An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."
"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," wrote Scalia. "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."
The 10th Circuit's approach of requiring an employer have "actual knowledge" of an employee or applicant's religious practices, said Scalia, is simply not in the text of Title VII that Congress enacted.
"I'm very happy about the decision," said Lambda's national legal director Jon Davidson. Lambda's brief, noted Davidson, "made the point emphasized by Justice Scalia that courts should not add language to Title VII that Congress did not enact in order to achieve what courts may think is a desirable result."
Meanwhile, LGBT groups are awaiting other Supreme Court decisions this month, including:
Obergefell v. Hodges, an appeal challenging a 6th Circuit decision that upheld state bans on same-sex couples marrying.
King v. Burwell, an appeal challenging a 4th Circuit decision upholding the federal government's tax subsidies to people with low incomes in all 50 states to buy health coverage. Lambda, Gay & Lesbian Advocates & Defenders and other LGBT groups filed a brief urging the Supreme Court to uphold the lower court decision. It noted that the subsidies have a "significant impact" on fighting HIV and that limiting those subsidies would have a "devastating public health" impact on people of color.
