Tag Archives: Supreme Court

Supreme Court Rules Religious Accommodation Does Not Require Actual Knowledge By Employers

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By R. Joseph Leibovich
(901) 328-8269

The United States Supreme Court on June 1 issued a ruling on religious accommodations under Title VII of the Civil Rights Act of 1964 that should effect how employers make hiring decisions.

In EEOC v. Abercrombie & Fitch Stores, the clothing store refused to hire Samantha Elauf, a practicing Muslim.  At the time she applied for a position she was wearing a head scarf as mandated by her religion.  The individual interviewing her was concerned this violated Abercrombie & Fitch’s “Look” policy, that forbids caps.

Although no one asked Ms. Elauf what her religion was, the interviewer told her superiors that she felt the scarf was likely due to religious reasons.  She was told that the scarf would violate the Look policy, and she was told not to hire Ms. Elauf.

The EEOC sued Abercrombie & Fitch alleging religious discrimination against Ms. Elauf, and the agency won on summary judgment.  The Tenth Circuit reversed, holding that an employer cannot be liable for failing to provide a religious accommodation if it has no actual knowledge of the need for one.

The Supreme Court reversed the Tenth Circuit in an 8-1 opinion written by Justice Scalia.  The opinion held that actual knowledge is not required, and  “Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

Therefore, a “neutral” policy can lead to a disparate-treatment claim when an employer decides not to hire a person because of potential religious accommodations.  As the Court explained,”…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. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

Employers need to realize that merely avoiding asking someone’s religion will not shield them from liability if they are, indeed, refusing to hire a person to avoid a religious accommodation.  In short, a neutral policy and claiming ignorance of an applicant’s religion will not protect employers if they decide not to hire someone because of a perceived religious accommodation, even if the employer technically does not know for sure that the individual is even a member of that religion.  The courts will be analyzing an employer’s intent, and not it’s knowledge, and that can make things very interesting.

 

Supreme Court Allows Judicial Review For EEOC Conciliation Efforts

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By Joe Leibovich
(901) 328-8269

The Supreme Court in a unanimous decision this week struck a blow to the Equal Employment Opportunity Commission’s ability to file lawsuits against employers without trying in good faith to work out the issues first.

The EEOC is the federal agency that enforces the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.  Under Title VII, if the EEOC investigates a charge of discrimination and finds reasonable cause to pursue it, the agency must make efforts to remedy the alleged discrimination through an informal conciliation process prior to filing a lawsuit in federal court.

In Mach Mining, LLC v. EEOC, a woman claimed she had not been hired as a coal miner due to her gender.  She filed a charge with the EEOC, and the agency determined that the employer had discriminated against the individual and women in general.  The EEOC did send a letter to the company and the complainant inviting them to conciliate.  The record does not indicate what happened next, but about a year later the EEOC advised Mach Mining that conciliation efforts had been attempted and were unsuccessful, and the EEOC filed suit.

Mach Mining contended that the EEOC had not properly attempted conciliation efforts as required by Title VII.  The trial court requested the opportunity to review the efforts to conciliate. The EEOC was allowed to take up an immediate appeal as to whether or not judicial review is proper.  The Seventh Circuit held it was not.  The Supreme Court, however, disagreed.

Justice Kagen’s opinion holds that a court can review the EEOC’s conciliation efforts.  She stated “Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result.”

The opinion also set forth the level of review that is appropriate, and did so narrowly.  The Court had to take into account the fact that conciliation efforts are protected by confidentiality.  Thus, the Court held that:

1.  The EEOC must inform the employer about the specific allegation, such as through a “Reasonable Cause” letter;

2.  The Notice must describe what the employer did and which employees (or classes of employees) have suffered as a result; and

3;  The EEOC must try to engage the employer in some form of discussion in an effort to give the employer a chance to remedy the alleged discriminatory practice.

The opinion states that a court should not go beyond this bare bones review to determine whether or not the EEOC complied with its conciliation obligations.

The Mach Mining decision is helpful to employers as it should afford them a genuine opportunity to address alleged discriminatory practices prior to the EEOC filing a lawsuit against them.  Nothing in this opinion affects an individual’s right to file a suit after receiving a Dismissal and Notice of Rights letter from the EEOC.  So, although this opinion only applies in certain Title VII lawsuits, it is one that can help limit lawsuits by the EEOC where an employer has truly not been given the opportunity to remedy a problem.

Interestingly in light of this week’s grand opening of the Bass Pro Shop in the Pyramid in Downtown Memphis, this was an issue in a lawsuit by the EEOC against that company.  In 2011, the EEOC filed a lawsuit against Bass Pro alleging race discrimination.  In that case, Bass Pro argued that the lawsuit should be dismissed as it claimed the EEOC did not give it a proper opportunity to conciliate the case.  A federal judge in Texas ultimately did review the conciliation efforts and determined that the EEOC had not acted unreasonably or arbitrarily, and, therefore the court refused to dismiss the lawsuit. The issue is now on appeal to the Fifth Circuit.