Josh Van Kampen Weighs in on A&F Religious Bias Suit in Law360 Article

The U.S. Supreme Court’s decision reviving a U.S. Equal Employment Opportunity Commission religious bias suit against Abercrombie & Fitch Stores Inc. closed what could have been a legal loophole that would have given some employers a green light to plead ignorance in religious accommodation cases, lawyers said.

The high court’s 8-1 ruling struck down an October 2013 appellate decision that blocked an EEOC case brought over Abercrombie’s refusal to hire Samantha Elauf, a job applicant who wore a hijab to a 2008 job interview but never mentioned her Muslim faith or asked for an exemption from a company dress policy that prohibited “caps.”

“The Abercrombie decision now forecloses what I describe as the ‘head in the sand’ defense,” said Josh Van Kampen, founder of employee-side firm Van Kampen Law PC.

Without “actual knowledge” of a conflict between an applicant or employee’s religion and an employer’s requirements, that employer can’t be held liable for failing to provide an accommodation under Title VII, Abercrombie argued in a January Supreme Court brief.

For decades workers and applicants have told employers they need religious accommodations and thus eliminated any need for speculation, the company said.

“It closed the loophole, that the Tenth Circuit appeared to create, that required that employees must explicitly tell employers about their religious practices and say they conflict with employer policies,” Paul Hastings LLP partner Marc Bernstein said of the high court’s almost-unanimous ruling.

Worker advocates praised the high court’s decision siding with the EEOC, while management-side lawyers also said it was a positive development — or at least not a ruling that gave them heartburn.

Religious discrimination charges take up just 4 percent of the claims received by the EEOC, and a spike in ligation because of Monday’s Abercrombie decision probably isn’t in the cards, according to Seyfarth Shaw LLP partner Jerry Maatman, though he added that certain cases might linger a little longer or settle for a bit more.

“No one’s saying the sky is falling,” Maatman said.

Attorneys also noted the burden that the Tenth Circuit’s decision would put on applicants to raise the issue of potential clashes between their beliefs and company policies they might not even be aware of.

“The result of this is that an individual with religious convictions that could end up having some conflict with employer policies doesn’t have to lead with saying, ‘Good morning, I’m a Muslim,’” said Rob Hale, chair of Goodwin Procter’s labor and employment practice.

Some observers feared that an EEOC win in the case would make employers pick their poison, forcing them to court liability by asking applicants about religious practices or face a claim like the one in the Abercrombie case.

On Monday, attorneys noted that employers could address any potential conflict by simply letting applicants know what their policies are while staying away from inquiring about religion.

Taking all the specific circumstances of the Abercrombie battle into account, it doesn’t seem like the high court is leaving employers in a no-win situation, Haynes and Boone LLP partner Laura O’Donnell said.

“If you read it in context, it doesn’t put employers in a Catch-22,” O’Donnell said. “It strengthens the need for employers to make sure that their managers are not acting on assumptions.”

While lawyers said they saw Monday’s high court decision as significant, they also said that it was far from a sea change in the law. Had the Supreme Court gone the other way and made the Tenth Circuit decision the law of the land, however, that would have been a big shift, they said.

During a Monday afternoon press call, EEOC general counsel David Lopez called the Tenth Circuit’s ruling an “outlier,” and the agency said in its petition for high court review that the challenged panel ruling had created with a split with four other circuits.

It was Abercrombie, not the EEOC, that was looking to change the legal landscape, and when the Supreme Court rejected Abercrombie’s position, it rejected what would have been a “wholesale” change in the law, EEOC associate general counsel Jennifer Goldstein added.

Ballard Spahr LLP partner Lucretia Clemons said the Tenth Circuit’s approach “wasn’t a workable solution.”

“I don’t see it as worrisome because I think the decision was very much expected, and it goes along with how many employers already deal with these sorts of issues,” Clemons said of Monday’s ruling.

The Abercrombie decision clarified the law, and that’s a good thing, Clemons went on to say. “Clarity, like it or not, is a good thing when you’re dealing with employee-employer relations,” she said.

Justice Antonin Scalia’s majority opinion said applicants like Elauf only had to show that their need for an accommodation was “a motivating factor” behind a challenged employment decision. Title VII prohibits taking action with the motive of avoiding the need to accommodate a religious practice, the decision said.

For Van Kampen, the opinion’s discussion of Title VII’s “motivating factor” standard was its most exciting facet, and he said that language could affect a range of Title VII suits.

“A Title VII plaintiff merely has to show that the protected status is a motivating factor,” Van Kampen said. “To my reading, there could be a dozen other factors.”

The decision also put the kibosh on Abercrombie’s alternative argument that a claim for failing to accommodate a religious practice must be pursued as disparate impact, rather than disparate treatment — or intentional discrimination — claim.

Disparate impact cases generally are tougher for plaintiffs to win, Clemons said.

“If every religious accommodation case was a disparate impact case, it would have changed the landscape,” she said. “Those cases are much harder to prove.”

University of Virginia School of Law professor Rip Verkerke pointed out that Justice Scalia’s opinion said in a footnote 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.”

The footnote went on to say that issue wasn’t in play because Abercrombie knew or at least suspected that the applicant’s headscarf was worn for religious reasons.

Justice Samuel Alito’s concurrence said the question of whether an employer had to know or suspect that a practice it declined to accommodate was a religious practice “may arise on remand.”

Verkerke predicted that the Tenth Circuit would adopt the language of the Scalia opinion’s footnote — footnote three — when it eventually rules on remand.

“That result is somewhat ironic because it brings us back quite close to the circuit panel’s original holding. But the Supreme Court’s ruling invites that result,” Verkerke wrote in an email Monday.

It’s not a foregone conclusion that the EEOC will win again on remand. But Lopez, the agency’s general counsel, said the EEOC was happy with the high court’s decision.

“Time will tell what the lower courts do, but we’re pleased with the decision and we’re hopeful that at the end of the day, Samantha Elauf will have her rights vindicated,” Lopez said

The case is Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., case number 14-86, in the U.S. Supreme Court.