EEOC v. Abercrombie: Discrimination Based on Misperception

In this second post on the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), I wanted to briefly discuss the issue of whether discrimination based on the employer's perception of an employee's protected status is unlawful, even if the employer's perception is mistaken.

In particular, the Court stated that an employer violates Title VII if it refuses to hire a job applicant because: (1) the employer believes, though it does not know, that the applicant is an Orthodox Jew and would require Saturdays off to observe the Sabbath; and (2) the applicant actually requires the accommodation. If prong (2) is required for a plaintiff to have a disparate treatment claim under Title VII, then it appears that a plaintiff would not have a claim if the employer was motivated by a mistaken perception about protected status. This limitation arguably is grounded in the disparate treatment provision, which states that an employer may not discriminate against an individual because of "such individual's" protected status. 

It would likely be even more difficult to establish coverage under the approach taken by Justice Alito in his concurrence. As discussed in my previous post, Justice Alito would require a plaintiff alleging denial of religious accommodation to show that the employer had knowledge of the plaintiff's religious practice. If knowledge is required to establish disparate treatment, then a plaintiff cannot establish disparate treatment based on a false perception about his or her protected status. It is self-evident that a false perception is not knowledge. And thus, for instance, an employer cannot be deemed to know that an employee is pregnant if she is not in fact pregnant.

Interestingly, in Heffernan v. City of Patterson, the Court is currently considering a similar claim under the First Amendment, in which a government employee alleged that he was subjected to retaliation based on a false perception about his political views. During oral argument, Justice Ginsburg asked about Title VII, and Thomas Goldstein, counsel for the City of Patterson, noted that courts are divided. Curiously, Justice Scalia then stated that EEO laws focus on the motivation of the employer whereas the First Amendment focuses on the rights of citizens. That exchange suggests to me that Justice Scalia thought that Title VII covers perceived-as claims even when based on a mistaken perception. And, of course, Justice Scalia wrote the majority opinion in Abercrombie. So go figure. 

Given the differences between Title VII and the First Amendment's free speech protection, it is unclear whether the Court's forthcoming decision in Heffernan will offer much insight in interpreting Title VII and other federal EEO laws. Regardless, though, I hope to look at the misperception issue in more detail in a future post.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.