Supreme Court Victory for Workers

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June 1, 2015
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Gregory L. Nevins

Today the U.S. Supreme Court reaffirmed an important principle — that Title VII the section of the Civil Rights Act that protects employment — means what it says and should not be tinkered with by judges.

In EEOC v. Abercrombie & Fitch, the Court ruled in favor of the Equal Employment Opportunity Commission and a young Muslim woman, Samantha Elauf, who was denied employment at an Abercrombie & Fitch store in Tulsa, Oklahoma, because a manager decided that her wearing a headscarf — a hijab — was inconsistent with A&F’s “Look Policy.” 

Elauf wore the headscarf during her job interview and believed it posed no problem because she had inquired ahead of time through a friend who already worked at the same A&F store and was told wearing the hijab was acceptable. In fact, the hiring manager assumed Elauf wore the item for religious reasons and decided to hire her anyway based on her interview. But a more senior manager overrode that decision.

The issue before the Supreme Court was whether Elauf could bring a discrimination claim even though she did not directly inform A&F that she wears the hijab for religious reasons and did not directly inquire whether doing so conflicted with company policy. 

A lower court said that Elauf had no case unless she specifically informed the employer of her religious needs — no matter how obvious they were. The Supreme Court rejected that approach today, saying that nothing in Title VII required Elauf to inform management.

Today’s decision marks one more win for the basic principle that Title VII protects you from employment discrimination based on your race, color, sex, religion or national origin. Period. There is no exception that says you are protected against religious discrimination but only if you verbally inform your employer about your religious needs.

Similarly, there is no antigay or anti-trans exception to the rule that protects you from sex discrimination at work. It is sex discrimination to withdraw a job offer made to David if David transitions to Diane. It is sex discrimination to provide health benefits to all husbands of employees, as long the employee is a woman.

Over the years, many courts have effectively inserted these “exceptions” into Title VII, despite there being no support in the law for them. Today’s decision underscores the error of that approach. The Court refused to “add words to the law to produce what is thought to be a desirable result. That is Congress’s province.”

Today’s decision is also good because it reins in the excessively pro-employer bent that some lower federal courts have demonstrated. Imagine you are Elauf, and you’ve been told that wearing a headscarf is OK, and you wear one to your interview and nobody says anything about it. Then the decision is made not to hire you because of the headscarf, and the company defends it by saying that you needed to bring up the fact that you planned to wear the headscarf at work, as though wearing it to the interview did not already convey this message. Really?

Today, the Supreme Court restored some common sense and fairness to employment law.