Supreme Court Muddies Up the Religious Waters

Every now and then the U.S. Supreme Court issues an opinion that is absolutely idiotic. It doesn't happen often; even when I disagree with the Court's holdings, I usually understand the reasoning and the ramifications of the case. This is especially true in employment law decisions. But the Court's latest pronouncement on Title VII religious accommodation in EEOC v. Abercrombie & Fitch Stores, Inc. makes me want to pick the phone up, call Justice Scalia's chambers, and ask him if he had been testing out D.C.'s new recreational marijuana law before he sat down to write the opinion.

The facts are a little confusing, but probably reflect a situation that is more common than we'd like to think. A young woman who was a practicing Muslim came to interview for a sales job at Abercrombie wearing a headscarf, something that was part of her religious practice. The store assistant manager rated the young woman as qualified but was concerned that the scarf would be inconsistent with Abercrombie's "Look Policy", which focused on the appearance of its sales staff as a way of reinforcing the company brand. The assistant manager talked to the store manager and informed him that she believed (but was not certain because she did not ask) that the headscarf was related to the young woman's faith. The store manager responded that the scarf was inconsistent with the Look Policy, as was all other headgear, religious or otherwise, and vetoed the hiring.

The EEOC took the case up, won liability on summary judgment (highly unusual), and then at a trial on damages won $20,000. On appeal the Tenth Circuit  reversed the district court, concluding that an employer cannot be liable under Title VII for failing to accommodate a religious practice, unless the applicant/employee tells the employer that an accommodation is needed.

The Supreme Court, with Justice Scalia writing for seven other justices, reversed the Tenth Circuit, noting that Title VII contains no requirement for employer knowledge of a religious accommodation before liability attaches.  Drawing a hard and fast line between Title VII's intentional prohibition against certain employer motives, versus the employer's knowledge of religious entanglement, Justice Scalia held that an employer cannot make an applicant's religious practice, known to the employer or otherwise, a factor in employment decisions. He then went on to say that Title VII does not demand neutrality with regard to religious practices, but rather that Title VII gives religious practices favored treatment, requiring employers to avoid infringing on religious practices whether they are known to be so or not.

I thought this was a crazy thing to say when I first read the opinion, and subsequent rereading of it has not changed my mind. In at least a hat tip to common sense, Justice Alito writes a very nice concurrence that requires the employer to have a suspicion that the practice motivating its decision is religious in nature before liability will attach.

Here's the problem with the Court's opinion-while mainstream religions such as Judaism (a yarmulke), Christianity (a crucifix), and Islam (a hijab, headscarf, or beard) manifest themselves in certain well-known ways, the EEOC takes the position that all kinds of strongly held beliefs are religions, even ones that do not outwardly proclaim themselves with recognized symbols or displays. It is quite possible to imagine a scenario where someone who is a Druid and works for a building contractor is given an order to bulldoze trees from a construction site. Because he is an animist, the employee refuses. His refusal is not outwardly religious, and unless he has the presence of mind to volunteer his religious objection, it will not be obvious to the foreman, who is likely to simply fire the employee for refusing to carry out his instructions. Under these circumstances, an act of religious discrimination has occurred, according to Justice Scalia and his seven brothers and sisters.

Or even worse-someone who is a vegan attends his company's barbecue on the Fourth of July. The boss is cooking up hamburgers, and as the employee comes through the food line, the boss proceeds to scoop a burger, dripping with grease and animal protein, onto this person's plate. The employee takes the plate and promptly throws it into the trash because it's contaminated; the boss takes this action personally and terminates the employee the next day. Under the Scalia test, this is also religious discrimination.

Anyone who practices in this area could see this problem coming a mile away. I'm guessing none of the Justices' clerks practice in this area.  I'm hoping that this is one of those decisions that gets modified quickly by the Court.  Otherwise, the implications are highly problematic for almost any employer.

How Much, Causation, Gets You Retaliation?

This is kind of a snappy little jingle if you recite it in the correct pentameter. The story behind it is fairly significant, however. The Supreme Court has agreed to hear a Title VII retaliation case in order to determine the standard of proof for retaliation claims.

Retaliation cases are typically much easier to prove than the underlying discrimination allegations that form the basis of a retaliation claim. As I've noted before, it's not uncommon to have juries reject claims of illegal discrimination, but find that an employer retaliated against an employee for making such a claim.

The Court agreed to examine the fundamental issue in a retaliation claim: how much proof is required to show that an employee's protected activity, e.g. filing a claim of discrimination or participating in an EEOC discrimination investigation, actually caused the employer to take an adverse employment action against her? The stricter standard, and the one favored by employers generally, is the so-called "but-for" standard, under which an employee has to show that the protected activity was the cause of the adverse action. In other words, a "but-for" standard requires the plaintiff to show that without the protected activity, the employer doesn't make the adverse employment decision. A much lower standard is the so-called "mixed motive" standard, which simply requires that the protected activity be a factor in the adverse employment decision.

Obviously the mixed motive standard is a nightmare for most employers. Invariably, a management decision maker will be aware that her employee has either filed a charge of discrimination or complained about discrimination in the past. Juries are quick to find that this knowledge of past protected activity means that it was considered in any kind of subsequent adverse action decision. Accordingly, it's very easy for juries to find retaliation under a mixed motive standard.

This particular case is on appeal from the federal Fifth Circuit Court of Appeals, which reversed the plaintiff medical school professor's basic discrimination claim on appeal, but upheld the retaliation claim using the mixed motive standard. The stakes are high for the employer community on this one, so I'll be watching closely for reports on the oral argument and, ultimately, the decision.