Sunday, March 6, 2016

EEOC v. Abercrombie: Intentional Discrimination and Customer Preference

In this post, I discuss the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), focusing on lessons it may provide for assessing discriminatory intent under Title VII of the Civil Rights Act of 1964. A separate post looks briefly at possible implications for claims based on the mistaken perception of an individual's protected status.

In Abercrombie, the Court addressed the Title VII requirement that an employer modify a generally applicable employment policy, such as a dress code, when it conflicts with an employee's religious practices, unless doing so would result in an undue hardship on the employer's business operations.

In an opinion by the late Justice Antonin Scalia, the Court concluded that Title VII prohibits an employer from taking an action with the motive of avoiding the statute's accommodation requirement. Thus, Abercrombie violated Title VII if it refused to hire Samantha Elauf to work at one of its stores because it believed that she wore a headscarf for religious reasons and because it did not want to modify its dress code to accommodate Elauf's religious practice.

The Court clarified that Title VII provides only two causes of action -- disparate treatment (or intentional discrimination) and disparate impact -- and that the unlawful denial of reasonable accommodation is a form of disparate treatment. One obvious implication of the Court's analysis is that a claim alleging denial of reasonable accommodation must satisfy the same requirements as other disparate treatment claims. In other words, the denial of reasonable accommodation does not violate Title VII unless it results in "discrimat[ion] ... with respect ... to terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1).

Justice Clarence Thomas, who served as EEOC Chairman during the Reagan presidency, did not join the majority decision in Abercrombie. Justice Thomas concurred with the majority on the narrow point that Title VII provides only two causes of action. But he disagreed fundamentally with the majority's conclusion that denial of reasonable accommodation constitutes disparate treatment. In Justice Thomas's view, the evenhanded application of a neutral employment practice does not constitute intentional discrimination. Justice Thomas criticized the majority for "expand[ing] the meaning of 'intentional discrimination' to include a refusal to give a religious applicant 'favored treatment.'"

Significantly, while Abercrombie involved religious accommodation, the competing approaches advanced by Justice Thomas and by the majority would apply in other disparate treatment contexts. Imagine, for example, the following: 1) an employer has a neutral policy by which it automatically reassigns employees based on customer complaints; 2) the employer has received a customer request to reassign an employee; 3) the employer believes that the customer made the request because he learned that the employee is Muslim and an Iranian emigrant; and 4) the employer reassigns the employee based on the neutral policy.

Under Justice Thomas's approach, it would appear that the employer would not be engaging in intentional discrimination, because it would be relying on a neutral policy.

By contrast, under the majority's approach, an employer's reliance on a neutral policy does not necessarily mean that the employer did not intend to treat the employee differently based on a protected characteristic. In the example presented above, because the employer believes that the customer request is based directly on the employee's protected characteristics, an adverse employment decision based on that request would presumably constitute disparate treatment. This seems to follow from the Court's conclusion that an adverse employment decision based on a religious practice is disparate treatment, even if the decision is grounded in a neutral policy.

Justice Samuel Alito concurred in the Court's judgment, but he would have held that an employer is not liable for denial of a religious accommodation unless the employer knew about the employee's religious practice. In Justice Alito's view, under the majority's approach, "it would be irrelevant in this case whether Abercrombie had any inkling that Elauf is a Muslim or that she wore the headscarf for a religious reason."

I'm skeptical of Justice Alito's take on the majority's approach. In my view, the majority does not negate the requirement of employer notice. Doing so would effectively eliminate the distinction between disparate treatment and disparate impact and hold an employer strictly liable for what would essentially be purely accidental discrimination. Thus, in the post-Abercrombie case of Nobach v. Woodland Village Nursing Center, Inc., No. 13-60378 (5th Cir Aug. 2015), the court rejected a reasonable accommodation claim where there was no evidence that the employer "knew, suspected, or reasonably should have known" of the employee's religious practice.

At bottom, the different approaches taken by the majority, by Justice Alito, and by Justice Thomas strike me as revolving around the link between the employer's mental state and a prohibited characteristic. An employer cannot be said to have intended to make an adverse employment decision because of a prohibited characteristic, unless the employer's mental state reflected the requisite level of discriminatory intent. The Court did not pinpoint what exactly is required to establish discriminatory intent, but it arguably set the bar pretty low by rejecting both Justice Thomas's neutral-policy safe harbor and Justice Alito's actual-knowledge requirement.

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.