Monday, June 1, 2015

Some thoughts on EEOC v. Abercrombie

Now that I've had a chance to read the full opinion in EEOC v. Abercrombie, here are a few thoughts. First, some background:

An assistant manager at A&F interviewed an applicant who wore a headscarf to the interview. The assistant manager believed the applicant wore the headscarf for religious reasons but did not know for sure. When the assistant manager contacted the district manager, the district manager concluded that the headscarf violated A&F's "look policy" and directed the assistant manager not to hire the applicant.

1. The holding is straightforward:
Justice Scalia, author of the majority opinion.
To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.
2. Title VII does not impose a knowledge requirement. The Court focuses instead on the employer's motives 
[T]he intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.
3. This holding probably does not apply to disability accommodations under the ADA:
It is significant that §2000e–2(a)(1) does not impose a knowledge requirement. As Abercrombie acknowledges, some antidiscrimination statutes do. For example, the Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant. §12112(b)(5)(A) (emphasis added). Title VII contains no such limitation.
4. What is the practical impact on interviewers?

Justice Thomas derides the majority as creating "an entirely new form of liability: the disparate-treatment-based-on-equal-treatment claim" (because A&F's policy was facially neutral and applied to non-religious headwear such as baseball caps too). Justice Alito (concurring in the result) notes a hypothetical in which an employer requires applicants to work on Saturdays, and some applicants cannot work on Saturdays due to religious obligations.

In that hypo, what does an employer do when it tells an applicant that the job requires Saturday shifts? What if the employee says something vague, like "I can't work on Saturdays." What does the interviewer do then? Will the employer now have to ask why the employee cannot comply with the Saturday requirement? Will this holding make religion a topic of conversation in job interviews? If the employer refuses to hire that person, who later turns out to be unavailable for religious reasons, was the employer motivated by his need for an accommodation?

The majority appears to require (though does not expressly enumerate it as an element of the case) a "suspicion" element:
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.
What level of suspicion is necessary? What if the interviewer has no clue why the applicant can't work on Saturdays, but knows that religious conflict is at least a possibility? In my opinion, the majority opinion fails to adequately explain this (Justice Scalia explains this omission in footnote 3 - although, I understand his point, this omission leaves great uncertainty in this area).