Tuesday, June 02, 2015

The Hijab Decision

If I understand the Supreme Court correctly, they did NOT rule on whether the company could hire - or not - based on the applicant's dress.  What they did is decide that the applicant didn't have to inform the company about the need for religious accommodation.
Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.

My bolding.

So, the Muslima will still face the question of whether the wearing of her headscarf is a "reasonable accommodation".  It boils down to whether or not Abercrombie will want to continue fighting the EEOC decision.  I'm guessing that they may not, for fear of bad publicity.

What happens now?  The Tenth Circuit will have their decision bounced back to it, and have to decide on other grounds - NOT whether the applicant had informed the potential employer of her need for an accommodation - but, whether the Abercrombie "Look" allows them to reject an applicant who wears a headscarf.

Not hopeful for the outcome.  Just imagine what this means for Hooters.

 

Hooters-Logo

 

 

 

 

 

 

Justice Thomas, as usual, is nuanced:
Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.” Because the Equal Employment Opportunity Commission (EEOC) can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the Tenth Circuit.

More from Thomas:
I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf. Ante, at 2. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a Cite as: 575 U. S. ____ (2015) 3 Opinion of THOMAS, J. classic case of an alleged disparate impact. It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company’s Look Policy. See ibid.; App. 134, 144. Because I cannot classify Abercrombie’s conduct as “intentional discrimination,” I would affirm.

What Thomas did agree with is that the woman's right to sue did not depend on her having asked for an accommodation.  And, that is ALL this decision is affirming - contrary to what the media would have people believe.

 

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