Thursday, June 04, 2015

Bogus Textualism in the Religious Discrimination Case

By Michael Dorf

In EEOC v. Abercrombie & Fitch Stores (decided on Monday), the SCOTUS, in an opinion by Justice Scalia joined by all of his colleagues except for Justice Alito (who concurred in the judgment) and Justice Thomas (who dissented), the Court held that a clothing store chain that refused to hire an observant Muslim woman who wears a headscarf because of the store's "no caps for employees" policy violated Title VII (assuming that the plaintiff would prevail at trial; the case reversed the grant of summary judgment for the defendant). A liberal/conservative coalition upholds the statutory right to be free of private discrimination for members of a religious minority who are the victims of real prejudice!  A great victory for civil rights and the rule of law, right? Well sure. But the opinion is problematic in a number of respects, beginning with the question presented.

In the first paragraph of his opinion, Justice Scalia frames the question as whether Title VII forbids a prospective employer from failing to hire a job "applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship" even if the applicant has not "informed the employer of his need for an accommodation." Maybe that's an important question but it does not appear to be presented by the facts of the case, even as recited by the majority. According to the facts recited, Abercrombie & Fitch management were aware that the applicant wore her headscarf for religious reasons. Given that she was applying for the job, it was obvious that she wanted an accommodation. And thus, Justice Alito says, quite accurately in my view, that the case is something of a sport.

Even so, Justice Alito appears to have the better argument. He says that the statute requires knowledge on the part of the employer that the applicant seeks a religious accommodation. Here's an example based on one provided by Justice Alito: Suppose an employer generally requires its employees to work on Saturdays; it declines to hire applicants who are unavailable for Saturday work; then an observant Jew applies and says he can't work on Saturdays but doesn't say why (perhaps in filling out a questionnaire); the employer would have accommodated his schedule but the employer doesn't know that his reason for wanting to have Saturdays off is to observe the sabbath; thus, the employer isn't liable. That seems fair, right? As Justice Alito says, the employer hasn't discriminated on religious grounds by failing to accommodate a religious need if the employer did not realize that its religion-neutral policy was, in this instance, incompatible with the applicant's religious need.

Justice Scalia says for the majority that the statute only requires a motive of not wanting to accommodate, which is separate from knowledge that the applicant needs an accommodation--although he arguably concedes in a footnote that knowledge may be necessary to motive. Assuming that knowledge is not necessary to motive would strike me as quite artificial. In the above example, it's possible as a conceptual matter that the employer would have the motive of refusing to accommodate the applicant's religious practice without knowing that the general policy of Saturday work is inconsistent with the particular applicant's religious practice, but the statute makes a whole lot more sense if it's read to say that in such circumstances the motive was to avoid accommodation, but that that is not a motive that is in any way "because of" the applicant's religion. And that's pretty much how Justice Alito makes sense of the statute.

I think the best that can be said for the position taken by Justice Scalia and the Court as against Justice Alito's position is that there will be cases--perhaps many cases--in which the applicant simply doesn't know the reason for the adverse employment decision. The applicant will simply be told "you're not hired" (or not promoted). Under these circumstances, the applicant will not be aware that he or she needs to alert the employer to a religious need for accommodation. Thus, the majority's approach places the burden on the employer to alert applicants to its general policies and to find out whether applicants need religious accommodations.

That's the best functional justification I can imagine for the majority's rule but it isn't all that good. An employer operating under the majority's rule still has an incentive not to disclose its reasons for failing to hire or promote any particular applicant, to avoid litigation. Under either regime, an applicant will need to have the wherewithal to figure out that he or she may have been the victim of employment discrimination before filing--and anyone in that situation is almost surely going to give the employer knowledge of the need for an accommodation. For that reason, again, the case as described by the Court's question presented strikes me as something of a sport. As a practical matter, in any case that generates litigation the employer will have had knowledge that the applicant sought a religious accommodation.

So the stakes in this case were low. But still, the majority opinion is troubling. Justice Scalia does not give the foregoing or any other functional justification for rejecting the knowledge requirement that Justice Alito would find in the statute. He simply resorts to textualism.

Justice Scalia's best textualist argument relies on a comparison of Title VII, which requires employers to accommodate employment applicants' religious observances or practices "unless [the] employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business," with the Americans With Disabilities Act (ADA), which only requires that the employer make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" (emphasis added). Presumably, Justice Scalia means to suggest that Congress knew how to include a knowledge requirement and it didn't do so in Title VII.

That's not a bad argument but it's not a great one either. The relevant provisions of the ADA and Title VII are parts of different complex statutes. Other things being equal, the inclusion of a word in one part of a statute juxtaposed with its exclusion in another part of the same statute suggests that the legislature meant different things in the two places, but given the sheer size of the U.S. Code, indeed, the sheer size of even just Title 42 of the U.S. Code, it's a bit much to think that Congress was attentive to every subtle difference in wording across the Code.

And as it turns out, Justice Scalia does not draw the inference that Congress's inclusion of the word "known" in the ADA but not Title VII excludes the possibility that there could be a knowledge requirement in the latter statute. Instead, he only concludes that Congress did not expressly write a knowledge requirement, not that Congress chose not to require knowledge. But somehow that amounts to the same thing. He says it is not the job of the Court "to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence."

Yet Justice Scalia's textualist cant is belied by decades of Title VII jurisprudence. The Court's case law in this area is littered with decisions in which the Justices filled statutory gaps based on an all-things-considered judgment about how, consistent with but not as required by the statutory text, best to facilitate the aims of the statute. For example, in McDonnell Douglas Corp. v. Green the Court announced a burden-shifting approach to the proof of Title VII disparate treatment claims. Nothing in the text of Title VII indicated that this approach was required. In Burlington Industries Inc. v. Ellerth and Faragher v. Boca Raton, the Court announced that principles of agency law would govern the liabiltiy of firms for harassment of employees by their supervisors. The statute is silent about such matters. And in a series of cases including Meritor Savings Bank v. Vinson, the Court has recognized a cause of action for "sexual harassment" that takes the form of either "quid pro quo" demands or a "hostile environment." None of those terms appeared in Title VII, but the Court did not treat such silence as relegating sexual harassment to the province of Congress.

It is understandable that Justice Scalia would want to re-write Title VII law (and other areas of law) in his own textualist image. It is also understandable that his colleagues who hold different jurisprudential views about statutory interpretation would suppress their jurisprudential disagreement in favor of collegiality and consensus in a pretty easy case. But none of that should blind readers to the limitations of Justice Scalia's brand of textualism--which disguises policy judgments as the solving of word puzzles.

23 comments:

Joe said...

"But none of that should blind readers to the limitations of Justice Scalia's brand of textualism--which disguises policy judgments as the solving of word puzzles."

Same b.s. found in his "originalism" or whatever he calls it. I realize the imperfect science here, but what annoys me about Scalia's ilk is their asshole self-righteous how they aren't making shit up like those liberals. Just the text, ma'am.

Yeah right. I'm not sure about the application here, not looking at the weeds, though do sympathize up to a point about the trouble employers can have in cases like this if not these particular facts. But, I apologize for my bluntness, but get tired of people like Scalia in particular doing things like this.

David Ricardo said...

Gosh, as Mr. Dorf nicely, correctly and admirably writes, once again Justice Scalia writes an opinion that inserts his own personal bias for specific policy into what is supposed to be a legal position.

This news ranks right up there with revelations like “The sun rose in the east this morning”, “High tides continue to alternate with low tides” and “It turns out the Pope is a catholic”.

Note to Justice Scalia: When Justice Alito has a written a better opinion and demonstrates a better understanding of the law then you do you have really blown this, big time.

On a more serious note, yes, it is reasonable for a person that is asking for an accommodation to be required to state the reason for that request. The onus is not all on the employer; employees or job applicants have some responsibility here too, particularly if they request a change in behavior of the employer even if that change is legally mandated. But as we all know and as Mr. Dorf has pointed out, Justice Scalia has a different agenda here than just interpreting the law.

Justin said...

Given Scalia's general aversion to substantive footnotes, the fact that he relies on them here is almost a giveaway of weakness. I also found Scalia plainly wrong regarding fn.2. He claims " Failing to hire for that reason is synonymous with refusing to accommodate the religious. To accuse the employer of the one is to accuse him of the other."

But a) that ignores the "reasonableness" requirement, and even without that, b) is not true in all cases; it is not even true here. Here, the adverse act was not hiring her. Not accommodating her would be to tell her, "you're hired, but no scarfs." What makes Abercrombie's actions particularly blameworthy was that they committed an adverse action in order to avoid denying a reasonable accommodation. It's what, kind of like the Kentucky Retirement Systems case, takes what Abercrombie did from "an adverse act based on something that is related to religion" to "an adverse act based on her religion." (As far as I am aware, A&F has no policy about headscarfs in *interviews*.) This also is what makes Thomas's dissent so terribly weak even on its own terms.


Again, Alito has the better of it, noting that Scalia reads "unless an employer demonstrates
that" out of "unless an employer demonstrates that he is unable to reasonably accommodate to
[the] employee’s or prospective employee’s" religion. I can understand why Scalia might want to read that language out of the statute. But, again, that's not textualism.


All the employee needs to show is that there was an adverse action, that the adverse action was because of the plaintiff's religion, and - as Alito correctly notes - that the defendant was aware that it was taking an adverse act because of (causal/contributory) the plaintiff's religion. The burden should then shift to the defendant to establish that the adverse act is justified due to an inability to accommodate.

Greg said...

I had a fairly long response to this written that the back button ate... ugh.

Short version:

I think Scalia got this one right. The reason is if we assume an employer with actual malice, Scalia's interpretation seems to produce what the statute intends.

Under Alito's rule, an employer with actual malice can assume for Title VII purposes that anything they observe is not for religious reasons unless unambiguously so, but can then turn around and discriminate because in actuality they suspect that what they observe is really for religious reasons.

Under Scalia's rule, the malicious employer can't refuse to hire because of an assumed religion but then hide behind a lack of perfect knowledge as a way to avoid liability.

I found Justice Thomas's dissent more enlightening, even though I disagreed, as he seemed to be genuinely concerned about a separate actual malice vs. refusal to accommodate distinction. However, his view seems to run counter to established precedent in this area.

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Samuel Rickless said...

I'm with Greg on this one. The question is whether it is possible for X to refuse to hire Y *because of* Y's religion when X believes/suspects, but does not *know*, that it is Y's religious practice that conflicts with X's policy. Suppose that Joe's last name is "Goldberg", and that Julie refuses to hire Joe because she thinks he is Jewish. Suppose further that Julie does not *know* that Joe is Jewish, but she thinks the probability that Joe is Jewish is high and doesn't want to take the risk of hiring someone Jewish. Suppose further that Joe is Jewish. Did Julie refuse to hire Joe because of his religion? Surely the answer is YES.

I am completely unmoved by Justice Alito's examples. Here's the first: "The parole board granted the prisoner parole because of an exemplary record in prison." Does the parole board have to *know* that the prisoner had an exemplary record in order for the board to grant parole *because of* the prisoner's exemplary record? No. It is sufficient that parole board justifiably believe that the prisoner had an exemplary record. Here's the second: "The Court sanctioned the attorney because of a flagrant violation of Rule 11." Does the Court have to *know* that the attorney flagrantly violated Rule 11 in order to sanction her/him because of the flagrant violation? No. It is sufficient that the Court justifiably believe that the attorney flagrantly violated Rule 11.

Even if you aren't a textualist and you want to focus on the aim of the legislation, it seems clear that placing a *knowledge* requirement is contrary to the aims of Title VII. Title VII is an anti-discrimination law. Discrimination is not a function of knowledge, but a function of belief. Indeed, the belief might be false, and discrimination could still occur. Suppose Joe *isn't* Jewish: his parents converted to Catholicism and he himself is a devout Catholic. Do you want to say that because Julie doesn't actually *know* that Joe is Jewish (after all, you can't know something that is false), her refusal to hire Joe doesn't violate Title VII? Surely it does, and surely the framers of the law intended that it should be understood so as to forbid what Julie did.

The interesting question is whether a textualist would want to say that the law clearly forbids Julie's refusal to hire Joe if (a) Julie's reason for not hiring Joe is that she doesn't want to hire a Jew and she thinks Joe is Jewish, and yet (b) Joe isn't Jewish. Arguably, the "because of" locution is factive. What is unclear is whether the factivity is semantic or pragmatic. But now we are getting a bit far from the issue presented in the Abercrombie case.

Michael C. Dorf said...

To be clear, the position of the majority is not that a lucky guess about the applicant's religion counts but that being motivated by not wanting to accommodate the conduct counts as "because of religion" even if the employer has not the slightest suspicion that the conduct is due to a religious belief.

Sam Rickless said...

Mike: I don't think you've described the majority's position accurately. The majority is assuming, reasonably it seems to me, that it is impossible to be motivated by a refusal to accommodate without suspecting that there is need to accommodate. Julie can't be motivated anti-semitically to deny Joe a job unless she thinks he is Jewish, or thinks there is a sufficiently high likelihood that he is Jewish. That is why the majority frames the question as whether what is required for Title VII to apply to this case is knowledge or mere suspicion. If Mary is raised on an isolated farm and has no idea that "Goldberg" is a Jewish name and refuses to hire Joe, it is conceptually impossible for her refusal to be because of Joe's religion.

David Ricardo said...

Like much of what happens in an 'academic' discussion this issue has become far more complex than it needs to be.

The rules, that is, the common sense rules, should be simply that when an employee or potential employee requests an accomodation from an employer's rules where those rules are neutral with respect to religion on their face, the employee's obligation is to provide an explanation of why the accomodation is needed. Once this happens it is the employer's responsibility to try to accomodate the employee to the maximum extent possible in a way that does not overly disrupt or interfere with the employer's business operations. Each party bears some burden here.

In the Abercrombie situation it is easly understood that allowing the prospective employee to wear the head scarf to accomodate her religious beliefs was a reasonable accomodation and did not overly disrupt or interfere with Abercombie's business operations. On the other hand, if Abercrombie were, say, open only on Saturday it would not be possible to accomodate an Orthodox Jew's position that he or she could not work on Saturday. But assuming the store was open seven days a week, and employees worked five day weeks it would be easy to accomodate the Orthodox Jew's request to not be scheduled to work on Saturday.

Really, it's that simple. Quit make a convoluted, tangled argument out of a relatively non-complex issue.

Sam Rickless said...

@ David Ricardo: Perhaps you would care to explain how Title VII is supposed to apply to a case in which the potential employee does not request a religious accommodation. Besides, we are not discussing which rules would be the best, or most commonsensical rules. We are discussing what Title VII requires. That's what this case is about, as should be fairly evident from the opinions. [Just a short note: I didn't appreciate the snark about academic discussions. It suggests a certain arrogance, which I don't think has any place here. I appreciate many of the comments you have added to discussions on this blog, and I would hope that you could extend the same respect to others who have taken the time and effort to contribute to the discussion themselves.]

David Ricardo said...

With respect to Mr. Rickless's comment "to explain how Title VII is supposed to apply to a case in which the potential employee does not request a religious accomodation" there is this from Justice Scalia's opinion

"Abercrombie’s primary argument is that an applicant
cannot show disparate treatment without first showing
that an employer has “actual knowledge” of the applicant’s
need for an accommodation. We disagree. Instead, an
applicant need only show that his need for an accommodation
was a motivating factor in the employer’s decision."

Mr. Rickless is correct that the case is about what Title VII requires, but of course Title VII is silent on the issue of motivation and knowledge and so the Court is left to fill in the blanks. And instead of making simple rule, a rule that says person does not have standing for a Title VII claim unless they have first informed the employer of the need for an accommodation based on religious grounds we have the convoluted opinion of Justice Scalia (and those Justices who went along with him, probably for the reason that the outcome was correct and why get into useless, pointless battles with Justice Scalia). If Justice Scalia's rationale is accepted than one must conclude that all employers and HR departments are or must be intimately familiar with the practices of all religions. Heck, I am Jewish and I have an incomplete and limited knowledge of the requirements of the ultra-Orthodox.

Apologies to Mr. Rickless and anyone else was offended by my editorializing on the 'academic' nature of the discussion. That was not my intention. My intention was to simply point out that in this issue the position that Title VII places a burden on the applicant or employee to notify the potential or actual employer of the need for an accommodation for religious reasons was so great a common sense solution and so consistent with discrimination in other areas of the law that to contest the issue was much more of an academic exercise than an exercise in legal interpretation. As a long time academic myself I have instigated and engaged in these types of discussion knowing full well that I was doing so for entertainment reasons or to raise interesting points unrelated to the real world and in doing so I was making the issue much more complex than it was in real life.

At the end of the day I just do not see how making a requirement that the employer was informed that the accommodation was requested to accommodate an individual's religious practices is not only a workable solution but entirely consistent with Title VII requirements and basic principles of equity in law.

Samuel Rickless said...

@ David Ricardo: I prefer "Professor Rickless". I teach philosophy at UCSD.

You are right that Title VII is silent on the issue of knowledge. If I am not mistaken, that is one of the things that Justice Scalia emphasizes in his opinion. But his contention, and I agree, is that Title VII is *not* silent on the issue of motivation. The phrase "because of" refers to motivation. If I fire you because of your Judaism, then the fact that you are Jewish is one of the reasons why I fired you, and this speaks directly to motivation.

I don't like standing doctrine myself, but in this case it's clear that Ms. Elauf has standing inasmuch as she was harmed by Abercrombie's decision not to hire her.

Title VII says that it is unlawful for an employer "to fail to hire any individual because of such individual's religion" (some text elided). So the question presented in this case is whether Ambercrombie failed to hire Ms. Elauf because of her religion. If the answer is yes, then what Abercrombie did was unlawful. If the answer is no, then what Abercrombie did was not unlawful. This much is just a matter of logic. You say that Title VII places a burden on Ms. Elauf to notify Abercrombie of the need for a religious accommodation. Unless I am much mistaken, that is not what Title VII says. If you want to rewrite the statute, be my guest. But we have the statute as written, not the statute that you think more commonsensical.

You say that "if Justice Scalia's rationale is accepted than one must conclude that all employers and HR departments are or must be intimately familiar with the practices of all religions." I disagree. If the evidence in a case suggests that the employer did not even suspect, and could not have been expected to even think, that the applicant was religious (or belonged to a particular religion or religious denomination), then the employer is completely off the hook. Title VII speaks only to those situations in which the employer believes that the applicant might require a religious accommodation and has a policy that involves refusal to accommodate.

Suppose, for example, that the employer has been told by a trusted source (erroneously, as it turns out) that Ms. Elauf is not a Muslim, and that she wears headscarves just because she likes the way they look. The employer then fails to hire Ms. Elauf, for reasons that have nothing to do with the problem of religious accommodation. In such a case, the employer does not violate Title VII, contrary to Justice Alito's statements in his concurrence.

I really don't see anything tangled or convoluted about this. It's really pretty simple, which explains both why Justice Scalia's opinion was so short, and why six of his fellow Justices signed on to the opinion.


Michael C. Dorf said...

Sam, re my point: You're mistaken. Footnote 3 of Justice Scalia's opinion says only that "it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice" but then leaves open the question whether the employer must at least have that suspicion.

David Ricardo said...

Consider the following case study.

Acme Corporation is a retailer where Sunday is its most important day and Acme generally requires all of its employees be scheduled to work on Sunday. On February 1, 2015 John Smith notifies Acme that he will not be able to work on say April 12, the Sunday after Easter. Although Acme could accommodate John by having an employee who would normally not have to work April 12 work on that date, for it declines to do so. John does not show up for work on April 12. Acme does not ask John why he needed April 12 off and John never volunteers a reason, and so on April 13 he is fired. Employee asks for day off, employer says no, employee takes day anyway, employee is fired. No Title VII issue here, agreed!

Now it turns out that John is a Greek Orthodox Christian. This is unknown and unknowable for Acme. Now has Acme violated Section VII? Or, if Acme knew that John was a Greek Orthodox Christian but having no knowledge of the religion Acme did not think it entered into the request not to work April 12, has Acme violated Section VII? (Be honest everyone, if you had to look up the reason why April 12 was not a date selected at random rather than knowing it offhand, say so.) I suspect Justice Scalia would say yes to both questions but I would also suggest that the correct answer with respect to Title VII for both questions is no.

Not only is there nothing in Title VII to support such a position as taken by Justice Scalia, but the common law principle that an injured party must take actions to minimize the damages done by that injury would require John to at least notify Acme at some time in this process that his request was motivated by his religious beliefs and practices so that Acme would have the opportunity to rescind the firing or not to have fired him in the first place. His failure to do so goes a long way towards alleviating Acme’s responsibility for restitution. If John could have avoided the act of his firing by providing Acme with information then it would seem he has the obligation under common law to have done so.

Justice Scalia and by extension Professor Rickless read into Title VII a requirement that anytime an employee or candidate asks for an accommodation the employer must make an investigation into whether or not that accommodation is motivated by religious practices; that otherwise if the accommodation was requested for religious purposes but that is unknown to the employer the employer’s denial of the accommodation may be motivated by discrimination based on religion. (Of course how an employee’s religion can be the motivation of discrimination when the employer doesn’t even know the religion of the employee or what that religion entails is something that belongs in Alice in Wonderland, not in interpretation of a statute.)

But that ain’t what Title VII says, that requirement to investigate ain’t there. To quote Professor Rickless, “ If you want to rewrite the statute, be my guest. But we have the statute as written, . . ..”

Shag from Brookline said...

Would it be appropriate for a prospective employer to ask an applicant if s/he would have religious accommodation needs fi hired? Would a cross, a Star of David, prayer beads, or other religious accoutrements worn by an applicant put the employer on notice?

Greg said...

While I might agree that Scalia's opinion, taken literally, would prohibit refusal to accommodate a religious practice that an employer had no idea was a religious practice, I seriously doubt it would EVER be construed that way.

Consider: Company uniform is blue T-shirts. Employee repeatedly wears red T-shirts to work instead. After being repeatedly asked to wear a blue T-shirt instead and not doing so, employee is fired. Employee makes no indication that this is for religious reasons. After being fired, employee sues under Title VII because wearing red T-shirts and not blue is a requirement of their religion. Facts clearly show that Company had no idea that such a religious requirement existed for any religion, much less the religion followed by Employee.

In this kind of true zero knowledge scenario, I seriously doubt that Company would be held liable under Title VII, in spite of Scalia's opinion.

More likely to me is that the court chose not to establish a standard (much like they did not in Elonis) because the court wanted to see more cases tried under the new motive guideline before drawing a permanent and immovable knowledge line for lower courts. Alito, both here and in Elonis, seems more willing to draw a line without further lower court development. Both approaches have their advantages and disadvantages.

Samuel Rickless said...

@MIke: I think we both made a mistake, but I think there is a way to solve the problem. Let me explain.

First, you are right that Scalia leaves it open in fn. 3 that it is possible to be motivated by the desire not to accommodate even if one does not even suspect that there is the need for accommodation. That falsifies my claim that Scalia is simply taking for granted that motive, by itself, entails suspicion.

Second, however, the claim of yours to which I gave a mistaken response was that "being motivated by not wanting to accommodate the conduct counts as "because of religion" even if the employer has not the slightest suspicion that the conduct is due to a religious belief". And I still think that this is false, or at least misleading.

As you suggest, motive and suspicion are separable. X might be motivated by a desire not to accommodate Muslim practices without suspecting that wearing headscarves is a Muslim practice. But it is impossible for X to *act* on this desire without having this suspicion. Action is not the result of motive by itself: it is the product (at minimum) of a belief-desire pair. Thus, if the Abercrombie manager's *refusal to hire* Ms. Elauf stems (at least in part) from a desire not to accommodate a religious practice, then it *must* be the case that the manager (at a minimum) suspects that the practice is religious. The general point here is that motives without beliefs do not result in actions. Y might be an anti-semite; but if Y doesn't have the slightest suspicion that Z is Jewish, then Y's refusal to hire Z *cannot* be the product of Y's anti-semitism.

Technically, then, "being motivated by not wanting to accommodate the conduct" can count as "because of religion" in the absence of "suspicion that the conduct is due to a religious belief". But the phrase "because of religion" presupposes that there was some *act* or other that was undertaken *because of religion*. And, as I've just argued, whenever there is such an act, it is not possible for the *act* to be motivated by not wanting to accommodate the conduct in the absence of suspicion that the conduct is due to a religious belief.

I hope this is clear. This much, I think, makes sense of everything Justice Scalia says in his opinion. At *no* point does Justice Scalia suppose that it might be possible for someone to refuse to hire Y "because of religion" in the absence of suspicion that Y's conduct stems from a religious belief. Instead, we get this:

"An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII."

Notice that the example for which Justice Scalia reaches *builds in* belief that the job applicant may be an orthodox Jew. This is because Justice Scalia is taking for granted, reasonably, that in order for the decision not to accommodate to be motivated by the desire to avoid accommodation, suspicion of the need to accommodate must already be in place.

Samuel Rickless said...

@David Ricardo: I believe that my previous response to Mike also addresses your Acme scenario. You think that Justice Scalia would find Acme in violation of Title VII for firing Smith. I believe that this is just a misreading of Justice Scalia's opinion. As I said earlier:

"If the evidence in a case suggests that the employer did not even suspect, and could not have been expected to even think, that the applicant was religious (or belonged to a particular religion or religious denomination), then the employer is completely off the hook. Title VII speaks only to those situations in which the employer believes that the applicant might require a religious accommodation and has a policy that involves refusal to accommodate."

I believe that Justice Scalia, along with those Justices who signed on to his opinion, agree with this. And what I would like to know is where in the opinion you find anything that would *commit* them to the opposite.

You write: "Justice Scalia and by extension Professor Rickless read into Title VII a requirement that anytime an employee or candidate asks for an accommodation the employer must make an investigation into whether or not that accommodation is motivated by religious practices." I deny this. It is my view (and I believe it is also the view of Justice Scalia) that if an employee asks for an accommodation but does not reveal to the employer that the accommodation is for religious reasons, then, if the employer otherwise has no antecedent reason to believe (and does not even suspect) that the accommodation is for religious reasons, the employer does not need to conduct an investigation into what prompted the accommodation.

Greg said...

Since the conversation is ongoing, I thought I would point out one interesting aspect that does appear to be true of Scalia's opinion.

Scalia makes clear that you can only take action as a result of an action taken against you "because of religion" if you actually practice that religion.

This means that, if your last name is Goldberg and you are fired because the Employer thinks you are Orthodox Jewish, you only have a cause of action if you ACTUALLY ARE Orthodox Jewish. If the employer fires you because they think you are Jewish but you actually aren't Jewish, the employer doesn't violate Title VII even though their actions are clearly "because of religion."

That's a somewhat odd result, and I'm curious if we will see testcases pushing that particular aspect of this ruling.

Shag from Brookline said...

What if Whoopi Goldberg were fired, would that make a good test case?

Samuel Rickless said...

@Greg: As I said earlier, I think this question is left open by Scalia's opinion. Scalia's examples all presuppose that the applicant is religious, but where does he say that there is no cause of action if the applicant is not religious? As I said earlier, the "because of X" locution is arguably factive, by which I mean that it is not possible to do Y because of X unless X is a fact. But there may be a semantic/pragmatic issue here. That is, it may be that the semantic content of "because of X" is non-factive, while the factivity is pragmatically conveyed. Justice Scalia doesn't really appreciate the semantic/pragmatic distinction, so I'm not surprised that the issue didn't come up.

@Shag: Whoopi! Great case!

Asher said...

"In the first paragraph of his opinion, Justice Scalia frames the question as whether Title VII forbids a prospective employer from failing to hire a job "applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship" even if the applicant has not "informed the employer of his need for an accommodation." Maybe that's an important question but it does not appear to be presented by the facts of the case, even as recited by the majority. According to the facts recited, Abercrombie & Fitch management were aware that the applicant wore her headscarf for religious reasons. Given that she was applying for the job, it was obvious that she wanted an accommodation."

I don't understand. The applicant didn't inform Abercrombie - Abercrombie just correctly guessed - and the rationale of the court below was that Abercrombie wasn't liable because she didn't inform Abercrombie. The Court granted cert to correct that odd error. So this case does present exactly the question you say it doesn't.