EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ABERCROMBIE & FITCH STORES, INC.
No. 14-86
SUPREME COURT OF THE UNITED STATES
June 1, 2015
575 U. S. ____ (2015)
Argued February 25, 2015
OCTOBER TERM, 2014
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie‘s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf‘s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant‘s religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation.
Held: 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. Title VII‘s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] ... to hire” her (2) “because of” (3) “[her] religion” (including a religious practice).
731 F. 3d 1106, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. THOMAS, J., filed an opinion concurring in part and dissenting in part.
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JUSTICE SCALIA delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.
I
We summarize the facts in the light most favorable to the Equal Employment Opportunity Commission (EEOC), against whom the Tenth Circuit granted summary judgment. Respondent Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. The Look Policy prohibits “caps“—a term the Policy does not define—as too informal for Abercrombie‘s desired image.
Samantha Elauf is a practicing Muslim who, consistent
Cooke sought the store manager‘s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf‘s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.
The EEOC sued Abercrombie on Elauf‘s behalf, claiming that its refusal to hire Elauf violated Title VII. The District Court granted the EEOC summary judgment on the issue of liability, 798 F. Supp. 2d 1272 (ND Okla. 2011), held a trial on damages, and awarded $20,000. The Tenth Circuit reversed and awarded Abercrombie summary judgment. 731 F. 3d 1106 (2013). It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation. Id., at 1131. We granted certiorari. 573 U. S. ____ (2014).
II
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 indi-
vidual, 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.”
42 U. S. C. §2000e-2(a) .
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 on the conduct of the employer‘s business.”
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 term “because of” appears frequently in antidiscrimination laws. It typically imports, at a minimum, the traditional standard of but-for causation. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ____ (2013). Title VII relaxes this standard, however, to prohibit even making a protected characteristic a “motivating factor” in an employment decision.
It is significant that
Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor‘s knowledge. Motive and knowledge are separate concepts. 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. 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.
Thus, 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.
Abercrombie urges this Court to adopt the Tenth Circuit‘s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant‘s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress‘s province. We construe Title VII‘s silence as exactly that: silence. Its disparate-
Abercrombie argues in the alternative that a claim based on a failure to accommodate an applicant‘s religious practice must be raised as a disparate-impact claim, not a disparate-treatment claim. We think not. That might have been true if Congress had limited the meaning of “religion” in Title VII to religious belief—so that discriminating against a particular religious practice would not be disparate treatment though it might have disparate impact. In fact, however, Congress defined “religion,” for Title VII‘s purposes, as “includ[ing] all aspects of religious observance and practice, as well as belief.”
Nor does the statute limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Abercrombie‘s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored
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The Tenth Circuit misinterpreted Title VII‘s requirements in granting summary judgment. We reverse its judgment and remand the case for further consideration consistent with this opinion.
It is so ordered.
JUSTICE ALITO, concurring in the judgment.
This case requires us to interpret a provision of Title VII of the Civil Rights Act of 1964 that prohibits an employer from taking an adverse employment action (refusal to hire, discharge, etc.) “against any individual ... because of1 such individual‘s ... religion.”
In this case, Samantha Elauf, a practicing Muslim, wore
The relevant provisions of Title VII, however, do not impose the notice requirement that formed the basis for the Tenth Circuit‘s decision. While I interpret those provisions to require proof that Abercrombie knew that Elauf wore the headscarf for a religious reason, the evidence of Abercrombie‘s knowledge is sufficient to defeat summary judgment.
The opinion of the Court states that ”
The scarves that Elauf wore were not articles of clothing that were designed or marketed specifically for Muslim women. Instead, she generally purchased her scarves at ordinary clothing stores. In this case, the Abercrombie employee who interviewed Elauf had seen her wearing scarves on other occasions, and for reasons that the record does not make clear, came to the (correct) conclusion that she is a Muslim. But suppose that the interviewer in this case had never seen Elauf before. Suppose that the interviewer thought Elauf was wearing the scarf for a secular reason. Suppose that nothing else about Elauf made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason. If ”
The statutory text does not compel such a strange result. It is entirely reasonable to understand the prohibition against an employer‘s taking an adverse action because of a religious practice to mean that an employer may
This interpretation makes sense of the statutory provisions. Those provisions prohibit intentional discrimination, which is blameworthy conduct, but if there is no knowledge requirement, an employer could be held liable without fault. The prohibition of discrimination because of religious practices is meant to force employers to consider whether those practices can be accommodated without undue hardship. See
A plaintiff need not show, however, that the employer took the adverse action because of the religious nature of the practice. Cf. post, at 4 (THOMAS, J., concurring in part and dissenting in part). Suppose, for example, that an employer rejected all applicants who refuse to work on Saturday, whether for religious or nonreligious reasons. Applicants whose refusal to work on Saturday was known
This conclusion follows from the reasonable accommodation requirement imposed by
This brings me to a final point. Under the relevant statutory provisions, an employer‘s failure to make a reasonable accommodation is not an element that the plaintiff must prove. I am therefore concerned about the Court‘s statement that it “is the plaintiff‘s burden [to prove failure to accommodate].” Ante, at 3 n. 2. This blatantly contradicts the language of the statutes. As I noted at the beginning, when
“It shall be an unlawful employment practice for an employer ... to fail or refuse to hire ... any individual ... because of [any aspect of] such individual‘s ... religious ... practice ... unless an employer demonstrates that he is unable to reasonably accommodate to [the] employee‘s or prospective employee‘s religious ... practice ... without undue hardship on the conduct of the employer‘s business.” (Emphasis added.)
The clause that begins with the term “unless” unmistakably sets out an employer defense. If an employer chooses to assert that defense, it bears both the burden of production and the burden of persuasion. A plaintiff, on the other hand, must prove the elements set out prior to the “unless” clause, but that portion of the rule makes no mention of accommodation. Thus, a plaintiff need not plead or prove that the employer wished to avoid making
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.
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 meaning of
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 be deemed 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 discrimination.” 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
II
A
Resisting this straightforward application of
Title VII makes it illegal for an employer “to fail or refuse to hire ... any individual ... because of such individual‘s ... religion.”
But inserting the statutory definition of religion into
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 view 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
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
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
B
The majority‘s novel theory of intentional discrimination is also inconsistent with the history of this area of employment discrimination law. As that history shows, cases arising out of the application of a neutral policy absent religious accommodations have traditionally been understood to involve only disparate-impact liability.
When Title VII was enacted in 1964, it prohibited discrimination “because of ... religion” and did not include the current definition of “religion” encompassing “religious observance and practice” that was added to the statute in 1972. Civil Rights Act of 1964, §§701, 703(a), 78 Stat. 253–255. Shortly thereafter, the EEOC issued guidelines purporting to create “an obligation on the part of the employer to accommodate to the religious needs of employees.” 31 Fed. Reg. 8370 (1966). From an early date, the EEOC defended this obligation under a disparate-impact theory. See Brief for United States as Amicus Curiae in Dewey v. Reynolds Metals Co., O. T. 1970, No. 835, pp. 7, 13, 29–32. Courts and commentators at the time took the same view. See, e.g., Reid v. Memphis Publishing Co., 468 F. 2d 346, 350 (CA6 1972); Dewey v. Reynolds Metals Co., 300 F. Supp. 709, 713 (WD Mich. 1969), rev‘d, 429 F. 2d 324 (CA6 1970), aff‘d by an equally divided Court, 402 U. S. 689 (1971) (per curiam); 1 B. Lindemann & P. Grossman, Employment Discrimination Law
This Court‘s first decision to discuss a refusal to accommodate a religious practice, Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), similarly did not treat such conduct as intentional discrimination. Hardison involved a conflict between an employer‘s neutral seniority system for assigning shifts and an employee‘s observance of a Saturday Sabbath. The employer denied the employee an accommodation, so he refused to show up for work on Saturdays and was fired. Id., at 67–69. This Court held that the employer was not liable under Title VII because the proposed accommodations would have imposed an undue hardship on the employer. Id., at 77. To bolster its conclusion that there was no statutory violation, the Court relied on a provision of Title VII shielding the application of a “bona fide seniority or merit system” from challenge unless that application is “the result of an intention to discriminate because of ... religion.” Id., at 81–82 (quoting
At least before we granted a writ of certiorari in this case, the EEOC too understood that merely applying a neutral policy did not automatically constitute intentional discrimination giving rise to a disparate-treatment claim. For example, the Commission explained in a recent compliance manual, “A religious accommodation claim is distinct from a disparate treatment claim, in which the question is whether employees are treated equally.” EEOC Compliance Manual §12-IV, p. 46 (2008). Indeed, in asking us to take this case, the EEOC dismissed one of Abercrombie‘s supporting authorities as “a case addressing intentional discrimination, not religious accommodation.” Reply to Brief in Opposition 7, n. Once we granted certiorari in this case, however, the EEOC altered course and advanced the intentional-discrimination theory now adopted by the majority. The Court should have rejected this eleventh-hour request to expand our understanding of “intentional discrimination” to include merely applying a religion-neutral policy.
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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-treatment-based-on-equal-treatment