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.