By Marcia Coyle, From Supreme Court Brief

The U.S. Supreme Court on Wednesday appeared reluctant to give employers greater protection from lawsuits by employees and job applicants who claim discrimination based on their religious beliefs.

The justices heard arguments in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, a case arising from the company’s decision not to hire Samantha Elauf, a Muslim teenager who in 2008 applied for a job while wearing a religious headscarf, or hijab. The headscarf was not permitted under the company’s “look” policy, or dress code, and Elauf would have needed an accommodation.

Following spirited arguments in which the company’s counsel faced skeptical questions from the bench—with the main exception of Justice Antonin Scalia—most of the justices seemed inclined to reject Abercrombie’s argument that it was not liable.

The “look” policy doesn’t apply at the interview process, “so there’s no reason for not hiring the individual involved here unless you assumed that she was going to wear a scarf every day,” Justice Samuel Alito told the company’s counsel.

“Maybe she’s just having a bad hair day so she comes in with a headscarf, but she doesn’t have any religious reason for doing it. Would you reject her for that? No,” he said. “The reason that she was rejected was because you assumed she was going to do this every day. And the only reason why she would do it every day is because she had a religious reason.”

An assistant store manager, who did not raise the headscarf issue with Elauf (left), wanted to hire her but sought clarification of company policy. Abercrombie requires employees to wear collegiate, preppy-like clothes—no black and no “caps.” The interviewing manager assumed Elauf wore the headscarf for religious reasons and told that to her district manager. That supervisor insisted it violated the “look” policy and directed her not hire Elauf, according to the trial court record.

Title VII of the Civil Rights Act of 1964 prohibits job discrimination on the basis of religious beliefs and practices. It is an unlawful employment practice to fail to reasonably accommodate such beliefs or practices unless doing so would inflict an undue hardship on the business.

The battle in the high court was over who must make the first move when religion might be an issue—the employer, or the employee or job applicant.

The U.S. Court of Appeals for the Tenth Circuit said the burden falls on the job applicant or employee. Because Elauf did not make her religious beliefs known, that court reversed a district court’s finding that Abercrombie was liable, and also jury damages of $20,000.

The Tenth Circuit’s rule conflicts with the approach taken by the Seventh, Eighth, Ninth and Eleventh circuits. And, the government contends, under the Tenth Circuit rule, employers could escape liability for religious discrimination by remaining silent about their work policies to job applicants or their reasons for firing someone.

During Wednesday’s arguments, principal deputy solicitor general Ian Gershengorn told the justices that Congress, in Title VII, intended to initiate a dialogue with an applicant or employee once the employer assumes, understands or perceives that a religious accommodation is needed.

“The employer needs sufficient information from any source,” he said. “The critical point here for us is, if the employer had not assumed that this was religious, had not believed it, they would have hired her. The default rule for ‘I’m not sure,’ is hire.”

But Scalia said the way to avoid “hard cases” was to adopt the Tenth Circuit’s rule imposing the duty on the applicant or employee to ask for a religious accommodation.

Justice Ruth Bader Ginsburg, however, rejoined: “How could [Elauf] ask for something if she didn’t know the [work] rule?”

“Superior knowledge is not with the applicant,” Gershengorn said. “It’s the employer who gets to structure the interview and who could have put Elauf on notice.”

Jones Day’s Shay Dvoretzky argued for Abercrombie that the EEOC’s approach was “unadministrable” for employers. “What level of knowledge does the employer have to have” to begin a dialogue about a religious accommodation, he asked. “The EEOC doesn’t say what level of belief or certainty is required.”

Abercrombie’s policy was religion-neutral, Dvoretzky said. “The reason [the district manager] didn’t hire her was she wasn’t compliant with the ‘look’ policy.”

But Justice Sonia Sotomayor responded, “He didn’t hire her because, under the ‘look’ policy, he believed you could not accommodate that religious belief or that religious practice.”

Dvoretzky warned that, under the government’s rule, the only way employers could avoid liability would be to train their managers to stereotype job applicants about possible religious beliefs, and Title VII prohibits stereotyping.

“Employers would be required to decide which risk to take—ask whether clothing, schedules or other policy exceptions are for an undisclosed protected reason and risk a discrimination claim if the person wasn’t hired, or refrain from asking about any connection to protected classes and again risk a discrimination claim,” said Dorsey & Whitney’s Michael Droke, who has followed the case closely. “The same analysis would apply to disability discrimination or other protected classes.”

Religious and civil rights organizations as well as a number of states filed amicus briefs supporting the EEOC. Abercrombie drew supporting briefs from the National Conference of State Legislatures, the U.S. Chamber of Commerce, Cato Institute and other business groups.

“Religion is part of the human experience and carries into all aspects of life for persons of faith,” said Eric Baxter, senior counsel at the Becket Fund for Religious Liberty. “Employees shouldn’t have to wear a sign that says ‘I’m religious’ before they are protected by our civil rights laws that prohibit religious discrimination.”

IMAGE: VanWyckExpress/iStockphoto.com.

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202718958153/In-Religion-Bias-Case-Justices-Question-ProEmployer-Rule#ixzz3SqwsD57P