EEOC v. Abercrombie & Fitch Stores, Inc. (14-86)

argument 14-86

EEOC v. Abercrombie & Fitch Stores, Inc.

Supreme Court of the United States 58 min 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What legal standard does the Tenth Circuit impose on religious accommodation claims?

John G. Roberts 0:01

We'll hear argument first this morning in Case 1486, the Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores. Mr. Gershengorn?

Unknown 0:09

Mr. Chief Justice, and may it please the Court, the Tenth Circuit imposed two requirements on religious accommodation claims that eliminated liability for respondents' refusal to accommodate Ms. Eloff here. First, that the applicant herself verbally requests the accommodation. And second, that the employer know, rather than just correctly understand, the need for an accommodation. Neither requirement makes sense. What is the difference between knowing and correctly understanding? Your Honor, the testimony, it's a fair question. The Tenth Circuit perceived a difference. What the testimony was was that Ms. Cook assumed that Ms. Eloff needed to wear the headscarf because she was religious, that the headscarf signified that it was a religious headscarf.

Unknown 0:55

and that she figured it was a religious headscarf. What the Tenth Circuit said was that was insufficient. What was needed was actual knowledge. Our position is that when you figure, when you assume, when it signifies to you that a religious accommodation is needed, that is sufficient notice for an employer to be on

Elena Kagan 1:13

notice. Does that subjective or is it even relevant? Meaning? The issue is whether they failed to hire her because of a religious practice. Whether the person thinks it is, is the issue. And that's why they

Unknown 1:36

acted. That's right, Your Honor. And we think that's what makes this a particularly straightforward case. What the employer did here was act upon the assumption that Ms. Eloff needed to wear the headscarf for religious reasons, and yet later claimed refuge that it didn't have sufficient knowledge or certainty to actually have initiated the accommodation process that Congress wanted in Section 2000E2. But getting

Stephen G. Breyer 1:59

back to Justice Scalia's question, I think there's substantial force to your argument that the employee doesn't have to mention this first. But — Why do we import the term understand instead of no? In a treatment case, the whole idea is that prohibited action was taken because of religion. Well, you knew. Why are you making it so confusing?

Unknown 2:22

Your Honor, with respect, it's our position. It's the Tenth Circuit that's made it confusing. What the Tenth Circuit has done is said when you are –

Stephen G. Breyer 2:31

Your statement that you opened with is that he must understand. You stay away from the word no. Justice Scalia asked you why you did that, and I can't understand your answer.

Unknown 2:39

So the answer, Your Honor, is we think that there is sufficient knowledge, notice, when somebody understands that, when somebody assumes that a practice is religious and then acts upon it, that that is sufficient. What the Tenth Circuit said was that is not sufficient, that what is needed is something more approaching certainty.

Anthony M. Kennedy 2:59

But that's not — So that does raise the question, if yours is less than certainty, how much less than certainty is it? I mean, suppose I'm an employer and I say, you know, I don't honestly know. I think, you know, it's two out of three. Is that sufficient? So, Your Honor,

Unknown 3:16

I think that if I could explain how these cases come up, I think it will be the best way to answer your question. The answer in a situation like this, in which it's an applicant applying for a position and the employer suspects, thinks, two-thirds that there's a religious problem, a religious conflict, the employer has two options. It can Assume there is no conflict, in which case they make the hiring decision on the merits. In that case here, Ms. Eloff would have been hired. Alternatively, if the employer feels like there's enough concern about how Ms. Eloff would be able to perform, they can start a dialogue. That's what Congress intended. What they can't do is what they did here and assume through a stereotype that there was going to be a need for accommodation.

Unknown 4:04

And then say, having assumed that, I don't have any obligation to actually try to accommodate.

Anthony M. Kennedy 4:12

Is that true even if it's under 50 percent? In other words, say the employer says, you know, I really don't know, but I think that there's like a, you know, 50-50 chance or even a 40 percent chance that this person has a religious — has religious — this practice is religious.