Jus­tices again rule in fa­vor of re­li­gious rights

Supreme Court sides with a job ap­pli­cant re­jected be­cause of her head scarf, putting em­ploy­ers on no­tice.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASH­ING­TON — Find­ing a civil rights cause that in­creas­ingly brings to­gether con­ser­va­tives and lib­er­als, the Supreme Court told em­ploy­ers Mon­day that they had an “af­fir­ma­tive” duty un­der fed­eral anti-dis­crim­i­na­tion law to ac­com­mo­date the re­li­gious prac­tices of em­ploy­ees and job ap­pli­cants.

By an 8-1 vote, the jus­tices sided with a 17-year-old Mus­lim girl who was re­jected for a job at Abercrombie & Fitch be­cause she wore a head scarf.

The court’s lib­eral jus­tices have long cham­pi­oned re­li­gious mi­nori­ties in dis­crim­i­na­tion cases. But as Chris­tian con­ser­va­tives have more fre­quently found them­selves on the de­fen­sive over is­sues such as abor­tion and gay rights, the court’s con­ser­va­tives have also em­braced claims of re­li­gious lib­erty.

Last year, a con­ser­va­tive ma­jor­ity ruled that the re­li­gious own­ers of the Hobby Lobby chain of craft stores did not have to com­ply with a gov­ern­ment man­date to of­fer cer­tain birth con­trol meth­ods as part of the com­pany’s health plan.

Mon­day’s opin­ion by Jus­tice An­tonin Scalia ruled in fa­vor of Sa­man­tha Elauf, who wore a black head scarf to a 2008 job in­ter­view for a sales po­si­tion at an Abercrombie & Fitch store in Ok­la­homa. She was turned away be­cause man­agers feared her scarf would clash with the re­tailer’s im­age.

In its de­fense, the com­pany said it had a stan­dard “look pol­icy” for its sales staff that did not in­clude wear­ing a head scarf. It also said Elauf had never in­formed it of her reli­gion nor of her need for ac­com­mo­da­tion based on her faith.

But in the court­room Mon­day, Scalia de­scribed the case of Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion vs. Abercrombie as “easy” be­cause the store man­agers knew or “at least sus­pected” Elauf wore the head scarf for re­li­gious rea­sons.

He said the Civil Rights Act of 1964 puts the legal bur­den on em­ploy­ers not to dis­crim­i­nate. It gives “fa­vored treat­ment” to reli­gion, he said, and “re­li­gious prac­tice is one of the pro­tected char­ac­ter­is­tics … that must be ac­com­mo­dated.”

The ma­jor­ity ruled that it did not mat­ter whether Elauf in­formed the com­pany of her need for re­li­gious ac­com­mo­da­tion as long as the de­sire to avoid mak­ing such an ac­com­mo­da­tion was part of the com­pany’s ac­tion.

Ex­perts in work­place dis­crim­i­na­tion said the de­ci­sion could have a wide ef­fect.

“This case dramatically changes the stan­dards that ap­ply to em­ploy­ers be­cause it re­moves the re­quire­ment that an em­ployee or ap­pli­cant re­quest a re­li­gious ac­com­mo­da­tion, if the em­ployer’s mo­tive is later deemed a vi­o­la­tion of Ti­tle VII” of the Civil Rights Act, said Michael Droke, a Seat­tle lawyer.

The de­ci­sion was wel­comed by a wide va­ri­ety of re­li­gious groups, in­clud­ing Sikhs, Or­tho­dox Jews, Bap­tists, Sev­enth-day Ad­ven­tists and the Coun­cil on Amer­i­can-Is­lamic Re­la­tions.

Notre Dame law pro­fes­sor Richard Gar­nett saw the de­ci­sion as re­flect­ing the na­tion’s broad sup­port for re­li­gious lib­erty. “The free exer- cise of reli­gion takes place ev­ery day, not just on holy days, and in all as­pects of life, in­clud­ing work,” he said.

This left-right sup­port for re­li­gious claims in the United States stands in sharp con­trast to France, which has sought to keep reli­gion out of public spa­ces and schools. A 2010 law banned the wear­ing of full-faced veils in public, and last year a French ap­peals court up­held the dis­missal of a Mus­lim day-care em­ployee for re­fus­ing to re­move her head scarf at work.

By con­trast, the U.S. Con­sti­tu­tion for­bids the gov­ern­ment to in­ter­fere with the “free ex­er­cise of reli­gion,” and sev­eral fed­eral laws for­bid dis­crim­i­na­tion based on reli­gion.

Mon­day’s rul­ing was the sec­ond one this year in which a Mus­lim plain­tiff pre­vailed. In Jan­uary, the jus­tices ruled unan­i­mously for a Mus­lim in­mate in Arkansas who sought the right to main­tain a short beard de­spite the pri­son’s “no beards” pol­icy.

Even though the Civil Rights Act has been on the books since 1964, the Supreme Court has said re­mark­ably lit­tle about its pro­tec­tion against re­li­gious dis­crim­i­na­tion. The law is bet­ter known for ban­ning racial dis­crim­i­na­tion by schools, col­leges, em­ploy­ers and busi­nesses.

It says em­ploy­ers may not “refuse to hire” or oth­er­wise dis­crim­i­nate against some­one be­cause of their “race, color, reli­gion, sex or na­tional ori­gin.” And the law says reli­gion “in­cludes all as­pects of re­li­gious ob­ser­vance or prac­tice as well as be­lief.”

Re­li­gious claims, how­ever, do not al­ways win. The law says em­ploy­ers must make a “rea­son­able ac­com­mo­da­tion” for an em­ployee’s re­li­gious prac­tices, ex­cept when do­ing so would put an “un­due hard­ship on the con­duct” of the busi­ness.

The Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion, which en­forces the law, sued on Elauf ’s be­half. A fed­eral judge ruled she was a vic­tim of il­le­gal dis­crim­i­na­tion, and a jury awarded her $20,000 in com­pen­sa­tion.

But the U.S. 10th Cir­cuit Court of Ap­peals in Den­ver reversed the de­ci­sion and said the com­pany was not li­able be­cause she did not ask for a spe­cial ac­com­mo­da­tion for her reli­gion.

Jus­tice Clarence Thomas, who once headed the EEOC, was the lone dis­senter. He said that the com­pany en­forced a “neu­tral pol­icy” on ap­pro­pri­ate at­tire for the sales staff, and that “mere ap­pli­ca­tion of a neu­tral pol­icy can­not con­sti­tute in­ten­tional dis­crim­i­na­tion.”

The jus­tices sent the case back to the ap­peals court in Den­ver.

Car­lene Benz, a spokesman for the com­pany, de­nied it had dis­crim­i­nated against Elauf and said the re­tailer al­lowed work­ers to wear head scarves when re­quested for re­li­gious rea­sons.

“We have made sig­nif­i­cant en­hance­ments to our store as­so­ciate poli­cies, in­clud­ing the re­place­ment of the ‘look pol­icy’ with a new dress code that al­lows as­so­ciates to be more in­di­vid­u­al­is­tic,” she said.

Pablo Martinez Mon­si­vais AP

THE COURT said Abercrombie & Fitch failed to ac­com­mo­date Sa­man­tha Elauf ’s re­li­gious needs.

Chip Somodevilla Getty Images

PLAN­TIFF Sa­man­tha Elauf, left, her mother, Ma­jda, and lawyer P. David Lopez leave the Supreme Court af­ter oral ar­gu­ments in Fe­bru­ary.

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