Can an employee or applicant suffer disparate treatment religious discrimination without the employer knowing or at least suspecting that the individual needs a religious accommodation?  Justice Scalia does not want to tell us – at least not yet.

The United States Supreme Court issued its decision in E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (no. 14-86) on June 1, 2015.  The EEOC sued on behalf of a job applicant who had been denied employment because she wore a headscarf to her interview.  The employer believed that she wore the headscarf for religious reasons and declined to hire her because wearing the headscarf would have violated the company’s “Look Policy” that prohibited wearing “caps.”  The EEOC prevailed at trial, but the 10th Circuit Court of Appeals reversed, holding that the employer did not violate Title VII because the applicant had not informed the employer of a need for an accommodation.  The United States Supreme Court concluded that the Court of Appeals erred, and it reversed and remanded the case for further consideration.

Justice Scalia wrote the opinion for the majority.  He focused on the express language of Title VII and, in particular, on the absence of any statutory language requiring an employer to have knowledge of a need for an accommodation.  Consistent with the language of the statute, he concluded that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”  Slip op. at 3 (footnote omitted).

What’s the difference between knowledge and motivation?  Doesn’t the employer require some level of knowledge to be motivated to discriminate?  This is where things got a bit tricky.  The majority concluded that actual knowledge was not required because mere unsubstantiated suspicion could lead the employer to deny employment using religion as a factor.  Justice Scalia acknowledged that some level of knowledge or at least suspicion may be necessary to establish motive.  He wrote, “While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice – i.e., that he cannot discriminate ‘because of’ a ‘religious practice’ unless he knows or suspects it to be a religious practice.”  Slip op. at 6, n.3.  The majority declined to resolve the issue of whether knowledge or suspicion is necessary to establish motivation, however, concluding that this issue was not before the Court, as there was no dispute that Abercrombie at least suspected that the applicant wore the headscarf for religious reasons.  Id.

Justice Alito had no reservation about addressing the issue.  In his concurring opinion, he wrote, “I would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”  Concurring op. at 2-3.  Although Justice Alito used the term “knows” in this sentence, it appears that he intended to include suspicion – he writes further that it would be strange to find a violation of Title VII if “nothing else about [the applicant] made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason.”  Id. at 3.

Justices Scalia and Alito thus appear really to be on the same page.  Both appear to conclude that Title VII is violated if the applicant’s or employee’s religion is a motivating factor in an adverse employment decision, and “motivating factor” requires some level of knowledge or at least suspicion regarding the individual’s religion.  Justice Alito would make this rule official, but Justice Scalia and the majority will keep us guessing a bit longer.  My guess is that it will not take long for this rule to become official.

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