Equal Emp't Opportunity Comm'n v. Abercrombie & Fitch Stores, Inc.

(Slip Opinion) OCTOBER TERM, 2014 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

v. ABERCROMBIE & FITCH STORES, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 14–86. Argued February 25, 2015—Decided June 1, 2015

Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing

Muslim, because the headscarf that she wore pursuant to her reli-

gious obligations conflicted with Abercrombie’s employee dress policy.

The Equal Employment Opportunity Commission (EEOC) filed suit

on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights

Act of 1964, which, inter alia, prohibits a prospective employer from

refusing to hire an applicant because of the applicant’s religious prac-

tice when the practice could be accommodated without undue hard-

ship. The EEOC prevailed in the District Court, but the Tenth Cir-

cuit reversed, awarding Abercrombie summary judgment on the

ground that failure-to-accommodate liability attaches only when the

applicant provides the employer with actual knowledge of his need

for an accommodation.

Held: To prevail in a disparate-treatment claim, an applicant need

show only that his need for an accommodation was a motivating fac-

tor in the employer’s decision, not that the employer had knowledge

of his need. Title VII’s disparate-treatment provision requires Elauf

to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ”

(3) “[her] religion” (including a religious practice). 42 U. S. C.

§2000e–2(a)(1). And its “because of” standard is understood to mean

that the protected characteristic cannot be a “motivating factor” in an

employment decision. §2000e–2(m). Thus, rather than imposing a

knowledge standard, §2000e–2(a)(1) prohibits certain motives, re-

gardless of the state of the actor’s knowledge: An employer may not

make an applicant’s religious practice, confirmed or otherwise, a fac-

tor in employment decisions. Title VII contains no knowledge re-

quirement. Furthermore, Title VII’s definition of religion clearly in-

2 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Syllabus

dicates that failure-to-accommodate challenges can be brought as

disparate-treatment claims. And Title VII gives favored treatment to

religious practices, rather than demanding that religious practices be

treated no worse than other practices. Pp. 2–7.

731 F. 3d 1106, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ.,

joined. ALITO, J., filed an opinion concurring in the judgment. THOMAS,

J., filed an opinion concurring in part and dissenting in part.

Cite as: 575 U. S. ____ (2015) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–86

_________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PETITIONER v. ABERCROMBIE & FITCH

STORES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 1, 2015]

JUSTICE SCALIA delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964 prohibits a

prospective employer from refusing to hire an applicant in

order to avoid accommodating a religious practice that it

could accommodate without undue hardship. The ques-

tion presented is whether this prohibition applies only

where an applicant has informed the employer of his need

for an accommodation.

I

We summarize the facts in the light most favorable to

the Equal Employment Opportunity Commission (EEOC),

against whom the Tenth Circuit granted summary judg-

ment. Respondent Abercrombie & Fitch Stores, Inc.,

operates several lines of clothing stores, each with its own

“style.” Consistent with the image Abercrombie seeks to

project for each store, the company imposes a Look Policy

that governs its employees’ dress. The Look Policy prohib-

its “caps”—a term the Policy does not define—as too in-

formal for Abercrombie’s desired image.

Samantha Elauf is a practicing Muslim who, consistent

2 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of the Court

with her understanding of her religion’s requirements,

wears a headscarf. She applied for a position in an Aber-

crombie store, and was interviewed by Heather Cooke, the

store’s assistant manager. Using Abercrombie’s ordinary

system for evaluating applicants, Cooke gave Elauf a

rating that qualified her to be hired; Cooke was concerned,

however, that Elauf ’s headscarf would conflict with the

store’s Look Policy.

Cooke sought the store manager’s guidance to clarify

whether the headscarf was a forbidden “cap.” When this

yielded no answer, Cooke turned to Randall Johnson, the

district manager. Cooke informed Johnson that she be-

lieved Elauf wore her headscarf because of her faith.

Johnson told Cooke that Elauf ’s headscarf would violate

the Look Policy, as would all other headwear, religious or

otherwise, and directed Cooke not to hire Elauf.

The EEOC sued Abercrombie on Elauf ’s behalf, claim-

ing that its refusal to hire Elauf violated Title VII. The

District Court granted the EEOC summary judgment on

the issue of liability, 798 F. Supp. 2d 1272 (ND Okla.

2011), held a trial on damages, and awarded $20,000. The

Tenth Circuit reversed and awarded Abercrombie sum-

mary judgment. 731 F. 3d 1106 (2013). It concluded that

ordinarily an employer cannot be liable under Title VII for

failing to accommodate a religious practice until the appli-

cant (or employee) provides the employer with actual

knowledge of his need for an accommodation. Id., at 1131.

We granted certiorari. 573 U. S. ___ (2014).

II

Title VII of the Civil Rights Act of 1964 78 Stat. 253, as

amended, prohibits two categories of employment prac-

tices. It is unlawful for an employer:

“(1) to fail or refuse to hire or to discharge any indi-

Cite as: 575 U. S. ____ (2015) 3

Opinion of the Court

vidual, or otherwise to discriminate against any indi-

vidual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such in-

dividual’s race, color, religion, sex, or national origin;

or

(2) to limit, segregate, or classify his employees or ap-

plicants for employment in any way which would de-

prive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status

as an employee, because of such individual’s race,

color, religion, sex, or national origin.” 42 U. S. C.

§2000e–2(a).

These two proscriptions, often referred to as the “dis-

parate treatment” (or “intentional discrimination”) provi-

sion and the “disparate impact” provision, are the only

causes of action under Title VII. The word “religion” is

defined to “includ[e] all aspects of religious observance and

practice, as well as belief, unless an employer demon-

strates that he is unable to reasonably accommodate to” a

“religious observance or practice without undue hardship

on the conduct of the employer’s business.” §2000e( j).1

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 accommoda-

tion was a motivating factor in the employer’s decision.2

——————

1 For brevity’s sake, we will in the balance of this opinion usually

omit reference to the §2000e( j) “undue hardship” defense to the accom-

modation requirement, discussing the requirement as though it is

absolute.

2 The concurrence mysteriously concludes that it is not the plaintiff ’s

burden to prove failure to accommodate. Post, at 5. But of course that

is the plaintiff’s burden, if failure to hire “because of” the plaintiff’s

“religious practice” is the gravamen of the complaint. Failing to hire for

4 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of the Court

The disparate-treatment provision forbids employers to:

(1) “fail . . . to hire” an applicant (2) “because of ” (3) “such

individual’s . . . religion” (which includes his religious

practice). Here, of course, Abercrombie (1) failed to hire

Elauf. The parties concede that (if Elauf sincerely believes

that her religion so requires) Elauf ’s wearing of a head-

scarf is (3) a “religious practice.” All that remains is

whether she was not hired (2) “because of ” her religious

practice.

The term “because of ” appears frequently in antidis-

crimination laws. It typically imports, at a minimum, the

traditional standard of but-for causation. University of

Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___

(2013). Title VII relaxes this standard, however, to pro-

hibit even making a protected characteristic a “motivating

factor” in an employment decision. 42 U. S. C. §2000e–

2(m). “Because of ” in §2000e–2(a)(1) links the forbidden

consideration to each of the verbs preceding it; an individ-

ual’s actual religious practice may not be a motivating

factor in failing to hire, in refusing to hire, and so on.

It is significant that §2000e–2(a)(1) does not impose a

knowledge requirement. As Abercrombie acknowledges,

some antidiscrimination statutes do. For example, the

Americans with Disabilities Act of 1990 defines discrimi-

——————

that reason is synonymous with refusing to accommodate the religious

practice. To accuse the employer of the one is to accuse him of the

other. If he is willing to “accommodate”—which means nothing more

than allowing the plaintiff to engage in her religious practice despite

the employer’s normal rules to the contrary—adverse action “because

of” the religious practice is not shown. “The clause that begins with the

word ‘unless,’” as the concurrence describes it, ibid., has no function

except to place upon the employer the burden of establishing an “undue

hardship” defense. The concurrence provides no example, not even an

unrealistic hypothetical one, of a claim of failure to hire because of

religious practice that does not say the employer refused to permit

(“failed to accommodate”) the religious practice. In the nature of

things, there cannot be one.

Cite as: 575 U. S. ____ (2015) 5

Opinion of the Court

nation to include an employer’s failure to make “reason-

able accommodations to the known physical or mental

limitations” of an applicant. §12112(b)(5)(A) (emphasis

added). Title VII contains no such limitation.

Instead, the intentional discrimination provision prohib-

its certain motives, regardless of the state of the actor’s

knowledge. Motive and knowledge are separate concepts.

An employer who has actual knowledge of the need for an

accommodation does not violate Title VII by refusing to

hire an applicant if avoiding that accommodation is not

his motive. Conversely, an employer who acts with the

motive of avoiding accommodation may violate Title VII

even if he has no more than an unsubstantiated suspicion

that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a

failure to accommodate a religious practice is straightfor-

ward: 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 prospec-

tive accommodation is a motivating factor in his decision,

the employer violates Title VII.

Abercrombie urges this Court to adopt the Tenth Cir-

cuit’s rule “allocat[ing] the burden of raising a religious

conflict.” Brief for Respondent 46. This would require the

employer to have actual knowledge of a conflict between

an applicant’s religious practice and a work rule. The

problem with this approach is the one that inheres in most

incorrect interpretations of statutes: It asks us to add

words to the law to produce what is thought to be a desir-

able result. That is Congress’s province. We construe

Title VII’s silence as exactly that: silence. Its disparate-

6 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of the Court

treatment provision prohibits actions taken with the

motive of avoiding the need for accommodating a religious

practice. A request for accommodation, or the employer’s

certainty that the practice exists, may make it easier to

infer motive, but is not a necessary condition of liability.3

Abercrombie argues in the alternative that a claim

based on a failure to accommodate an applicant’s religious

practice must be raised as a disparate-impact claim, not a

disparate-treatment claim. We think not. That might

have been true if Congress had limited the meaning of

“religion” in Title VII to religious belief—so that discrimi-

nating against a particular religious practice would not be

disparate treatment though it might have disparate im-

pact. In fact, however, Congress defined “religion,” for

Title VII’s purposes, as “includ[ing] all aspects of religious

observance and practice, as well as belief.” 42 U. S. C.

§2000e(j). Thus, religious practice is one of the protected

characteristics that cannot be accorded disparate treat-

ment and must be accommodated.

Nor does the statute limit disparate-treatment claims to

only those employer policies that treat religious practices

less favorably than similar secular practices. Abercrom-

bie’s argument that a neutral policy cannot constitute

“intentional discrimination” may make sense in other

contexts. But Title VII does not demand mere neutrality

with regard to religious practices—that they be treated no

worse than other practices. Rather, it gives them favored

——————

3 While a knowledge requirement cannot be added to the motive re-

quirement, 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—i.e., that he cannot discriminate “because of” a

“religious practice” unless he knows or suspects it to be a religious

practice. That issue is not presented in this case, since Abercrombie

knew—or at least suspected—that the scarf was worn for religious

reasons. The question has therefore not been discussed by either side,

in brief or oral argument. It seems to us inappropriate to resolve this

unargued point by way of dictum, as the concurrence would do.

Cite as: 575 U. S. ____ (2015) 7

Opinion of the Court

treatment, affirmatively obligating employers not “to fail

or refuse to hire or discharge any individual . . . because of

such individual’s” “religious observance and practice.” An

employer is surely entitled to have, for example, a no-

headwear policy as an ordinary matter. But when an

applicant requires an accommodation as an “aspec[t] of

religious . . . practice,” it is no response that the sub-

sequent “fail[ure] . . . to hire” was due to an otherwise-

neutral policy. Title VII requires otherwise-neutral

policies to give way to the need for an accommodation.

* * *

The Tenth Circuit misinterpreted Title VII’s require-

ments in granting summary judgment. We reverse its

judgment and remand the case for further consideration

consistent with this opinion.

It is so ordered.

Cite as: 575 U. S. ____ (2015) 1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–86

_________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PETITIONER v. ABERCROMBIE & FITCH

STORES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 1, 2015]

JUSTICE ALITO, concurring in the judgment.

This case requires us to interpret a provision of Title VII

of the Civil Rights Act of 1964 that prohibits an employer

from taking an adverse employment action (refusal to

hire, discharge, etc.) “against any individual . . . because

of [] such individual’s . . . religion.” 42 U. S. C. §2000e–

2(a). Another provision states that the term “religion”

“includes all aspects of religious observance and practice,

as well as belief, unless an 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.” §2000e( j). When these two provisions are put

together, the following rule (expressed in somewhat sim-

plified terms) results: An employer may not take an ad-

verse employment action against an applicant or employee

because of any aspect of that individual’s religious ob-

servance or practice unless the employer demonstrates

that it is unable to reasonably accommodate that ob-

servance or practice without undue hardship.

In this case, Samantha Elauf, a practicing Muslim, wore

——————



Under 42 U. S. C. §2000e–2(m), an employer takes an action “be-

cause of” religion if religion is a “motivating factor” in the decision.

2 EEOC v. ABERCROMBIE & FITCH STORES, INC.

ALITO, J., concurring in judgment

a headscarf for a religious reason when she was inter-

viewed for a job in a store operated by Abercrombie &

Fitch. She was rejected because her scarf violated Aber-

crombie’s dress code for employees. There is sufficient

evidence in the summary judgment record to support a

finding that Abercrombie’s decisionmakers knew that

Elauf was a Muslim and that she wore the headscarf for a

religious reason. But she was never asked why she wore

the headscarf and did not volunteer that information. Nor

was she told that she would be prohibited from wearing

the headscarf on the job. The Tenth Circuit held that

Abercrombie was entitled to summary judgment because,

except perhaps in unusual circumstances, “[a]pplicants or

employees must initially inform employers of their reli-

gious practices that conflict with a work requirement and

their need for a reasonable accommodation for them.” 731

F. 3d 1106, 1142 (2013) (emphasis deleted).

The relevant provisions of Title VII, however, do not

impose the notice requirement that formed the basis for

the Tenth Circuit’s decision. While I interpret those pro-

visions to require proof that Abercrombie knew that Elauf

wore the headscarf for a religious reason, the evidence of

Abercrombie’s knowledge is sufficient to defeat summary

judgment.

The opinion of the Court states that “§2000e–2(a)(1)

does not impose a knowledge requirement,” ante, at 4, but

then reserves decision on the question whether it is a

condition of liability that the employer know or suspect

that the practice he refuses to accommodate is a religious

practice, ante, at 6, n. 3, but in my view, the answer to this

question, which may arise on remand,2 is obvious. I would

——————

2 Cooke testified that she told Johnson that she believed Elauf wore a

head scarf for a religious reason, App. 87, but Johnson testified that

Cooke did not share this belief with him, id., at 146. If Abercrombie’s

knowledge is irrelevant, then the lower courts will not have to decide

whether there is a genuine dispute on this question. But if Abercrom-

Cite as: 575 U. S. ____ (2015) 3

ALITO, J., concurring in judgment

hold that an employer cannot be held liable for taking an

adverse action because of an employee’s religious practice

unless the employer knows that the employee engages in

the practice for a religious reason. If §2000e–2(a)(1) really

“does not impose a knowledge requirement,” ante at 4, it

would be irrelevant in this case whether Abercrombie had

any inkling that Elauf is a Muslim or that she wore the

headscarf for a religious reason. That would be very

strange.

The scarves that Elauf wore were not articles of clothing

that were designed or marketed specifically for Muslim

women. Instead, she generally purchased her scarves at

ordinary clothing stores. In this case, the Abercrombie

employee who interviewed Elauf had seen her wearing

scarves on other occasions, and for reasons that the record

does not make clear, came to the (correct) conclusion that

she is a Muslim. But suppose that the interviewer in this

case had never seen Elauf before. Suppose that the inter-

viewer thought Elauf was wearing the scarf for a secular

reason. Suppose that nothing else about Elauf made the

interviewer even suspect that she was a Muslim or that

she was wearing the scarf for a religious reason. If

“§2000e–2(a)(1) does not impose a knowledge require-

ment,” Abercrombie would still be liable. The EEOC,

which sued on Elauf ’s behalf, does not adopt that inter-

pretation, see, e.g., Brief for Petitioner 19, and it is surely

wrong.

The statutory text does not compel such a strange re-

sult. It is entirely reasonable to understand the prohibi-

tion against an employer’s taking an adverse action be-

cause of a religious practice to mean that an employer may

——————

bie’s knowledge is relevant and if the lower courts hold that there is a

genuine dispute of material fact about Abercrombie’s knowledge, the

question will have to be submitted to the trier of fact. For these rea-

sons, we should decide this question now.

4 EEOC v. ABERCROMBIE & FITCH STORES, INC.

ALITO, J., concurring in judgment

not take an adverse action because of a practice that the

employer knows to be religious. Consider the following

sentences. The parole board granted the prisoner parole

because of an exemplary record in prison. The court sanc-

tioned the attorney because of a flagrant violation of Rule

11 of the Federal Rules of Civil Procedure. No one is likely

to understand these sentences to mean that the parole

board granted parole because of a record that, unbe-

knownst to the board, happened to be exemplary or that

the court sanctioned the attorney because of a violation

that, unbeknownst to the court, happened to be flagrant.

Similarly, it is entirely reasonable to understand this

statement—“The employer rejected the applicant because

of a religious practice”—to mean that the employer rejected

the applicant because of a practice that the employer knew

to be religious.

This interpretation makes sense of the statutory provi-

sions. Those provisions prohibit intentional discrimina-

tion, which is blameworthy conduct, but if there is no

knowledge requirement, an employer could be held liable

without fault. The prohibition of discrimination because

of religious practices is meant to force employers to con-

sider whether those practices can be accommodated with-

out undue hardship. See §2000e( j). But the “no-

knowledge” interpretation would deprive employers of that

opportunity. For these reasons, an employer cannot be

liable for taking adverse action because of a religious

practice if the employer does not know that the practice is

religious.

A plaintiff need not show, however, that the employer

took the adverse action because of the religious nature of

the practice. Cf. post, at 4 (THOMAS, J., concurring in part

and dissenting in part). Suppose, for example, that an

employer rejected all applicants who refuse to work on

Saturday, whether for religious or nonreligious reasons.

Applicants whose refusal to work on Saturday was known

Cite as: 575 U. S. ____ (2015) 5

ALITO, J., concurring in judgment

by the employer to be based on religion will have been

rejected because of a religious practice.

This conclusion follows from the reasonable accommoda-

tion requirement imposed by §2000e( j). If neutral work

rules (e.g., every employee must work on Saturday, no

employee may wear any head covering) precluded liability,

there would be no need to provide that defense, which

allows an employer to escape liability for refusing to make

an exception to a neutral work rule if doing so would

impose an undue hardship.

This brings me to a final point. Under the relevant

statutory provisions, an employer’s failure to make a

reasonable accommodation is not an element that the

plaintiff must prove. I am therefore concerned about the

Court’s statement that it “is the plaintiff ’s burden [to

prove failure to accommodate].” Ante, at 3 n. 2. This bla-

tantly contradicts the language of the statutes. As I noted

at the beginning, when §2000e–2(a) and §2000e( j) are

combined, this is the result:

“It shall be an unlawful employment practice for an

employer . . . to fail or refuse to hire . . . any individual

. . . because of [any aspect of] such individual’s . . . re-

ligious . . . practice . . . unless an employer demon-

strates that he is unable to reasonably accommodate to

[the] employee’s or prospective employee’s religious . . .

practice . . . without undue hardship on the conduct of

the employer’s business.” (Emphasis added.)

The clause that begins with the term “unless” unmis-

takably sets out an employer defense. If an employer

chooses to assert that defense, it bears both the burden of

production and the burden of persuasion. A plaintiff, on

the other hand, must prove the elements set out prior to

the “unless” clause, but that portion of the rule makes no

mention of accommodation. Thus, a plaintiff need not

plead or prove that the employer wished to avoid making

6 EEOC v. ABERCROMBIE & FITCH STORES, INC.

ALITO, J., concurring in judgment

an accommodation or could have done so without undue

hardship. If a plaintiff shows that the employer took an

adverse employment action because of a religious ob-

servance or practice, it is then up to the employer to plead

and prove the defense. The Court’s statement subverts

the statutory text, and in close cases, the Court’s realloca-

tion of the burden of persuasion may be decisive.

In sum, the EEOC was required in this case to prove

that Abercrombie rejected Elauf because of a practice that

Abercrombie knew was religious. It is undisputed that

Abercrombie rejected Elauf because she wore a headscarf,

and there is ample evidence in the summary judgment

record to prove that Abercrombie knew that Elauf is a

Muslim and that she wore the scarf for a religious reason.

The Tenth Circuit therefore erred in ordering the entry of

summary judgment for Abercrombie. On remand, the

Tenth Circuit can consider whether there is sufficient

evidence to support summary judgment in favor of the

EEOC on the question of Abercrombie’s knowledge. The

Tenth Circuit will also be required to address Abercrom-

bie’s claim that it could not have accommodated Elauf ’s

wearing the headscarf on the job without undue hardship.

Cite as: 575 U. S. ____ (2015) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–86

_________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PETITIONER v. ABERCROMBIE & FITCH

STORES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 1, 2015]

JUSTICE THOMAS, concurring in part and dissenting in

part.

I agree with the Court that there are two—and only

two—causes of action under Title VII of the Civil Rights

Act of 1964 as understood by our precedents: a disparate-

treatment (or intentional-discrimination) claim and a

disparate-impact claim. Ante, at 3. Our agreement ends

there. Unlike the majority, I adhere to what I had

thought before today was an undisputed proposition: Mere

application of a neutral policy cannot constitute “inten-

tional discrimination.” Because the Equal Employment

Opportunity Commission (EEOC) can prevail here only if

Abercrombie engaged in intentional discrimination, and

because Abercrombie’s application of its neutral Look

Policy does not meet that description, I would affirm the

judgment of the Tenth Circuit.

I

This case turns on whether Abercrombie’s conduct

constituted “intentional discrimination” within the mean-

ing of 42 U. S. C. §1981a(a)(1). That provision allows a

Title VII plaintiff to “recover compensatory and punitive

damages” only against an employer “who engaged in

unlawful intentional discrimination (not an employment

2 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of THOMAS, J.

practice that is unlawful because of its disparate impact).”

The damages award EEOC obtained against Abercrombie

is thus proper only if that company engaged in “intentional

discrimination”—as opposed to “an employment practice

that is unlawful because of its disparate impact”—within

the meaning of §1981a(a)(1).

The terms “intentional discrimination” and “disparate

impact” have settled meanings in federal employment

discrimination law. “[I]ntentional discrimination . . .

occur[s] where an employer has treated a particular per-

son less favorably than others because of a protected

trait.” Ricci v. DeStefano, 557 U. S. 557, 577 (2009)

(internal quotation marks and alteration omitted).

“[D]isparate-impact claims,” by contrast, “involve em-

ployment practices that are facially neutral in their

treatment of different groups but that in fact fall more

harshly on one group than another and cannot be justified

by business necessity.” Raytheon Co. v. Hernandez, 540

U. S. 44, 52 (2003) (internal quotation marks omitted).

Conceived by this Court in Griggs v. Duke Power Co., 401

U. S. 424 (1971), this “theory of discrimination” provides

that “a facially neutral employment practice may be

deemed illegally discriminatory without evidence of the

employer’s subjective intent to discriminate that is re-

quired in a disparate-treatment case,” Raytheon, supra, at

52–53 (internal quotation marks and alteration omitted).

I would hold that Abercrombie’s conduct did not consti-

tute “intentional discrimination.” Abercrombie refused to

create an exception to its neutral Look Policy for Saman-

tha Elauf ’s religious practice of wearing a headscarf.

Ante, at 2. In doing so, it did not treat religious practices

less favorably than similar secular practices, but instead

remained neutral with regard to religious practices. To be

sure, the effects of Abercrombie’s neutral Look Policy,

absent an accommodation, fall more harshly on those who

wear headscarves as an aspect of their faith. But that is a

Cite as: 575 U. S. ____ (2015) 3

Opinion of THOMAS, J.

classic case of an alleged disparate impact. It is not what

we have previously understood to be a case of disparate

treatment because Elauf received the same treatment

from Abercrombie as any other applicant who appeared

unable to comply with the company’s Look Policy. See

ibid.; App. 134, 144. Because I cannot classify Abercrom-

bie’s conduct as “intentional discrimination,” I would

affirm.

II

A

Resisting this straightforward application of §1981a, the

majority expands the meaning of “intentional discrimina-

tion” to include a refusal to give a religious applicant

“favored treatment.” Ante, at 6–7. But contrary to the

majority’s assumption, this novel theory of discrimination

is not commanded by the relevant statutory text.

Title VII makes it illegal for an employer “to fail or

refuse to hire . . . any individual . . . because of such indi-

vidual’s . . . religion.” §2000e–2(a)(1). And as used in Title

VII, “[t]he term ‘religion’ includes all aspects of religious

observance and practice, as well as belief, unless an em-

ployer demonstrates that he is unable to reasonably ac-

commodate to an employee’s or prospective employee’s

religious observance or practice without undue hardship

on the conduct of the employer’s business.” §2000e(j).

With this gloss on the definition of “religion” in §2000e–

2(a)(1), the majority concludes that an employer may

violate Title VII if he “refuse[s] to hire . . . any individual

. . . because of such individual’s . . . religious . . . practice”

(unless he has an “undue hardship” defense). See ante, at

3–4.

But inserting the statutory definition of religion into

§2000e–2(a) does not answer the question whether Aber-

crombie’s refusal to hire Elauf was “because of her reli-

gious practice.” At first glance, the phrase “because of

4 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of THOMAS, J.

such individual’s religious practice” could mean one of two

things. Under one reading, it could prohibit taking an

action because of the religious nature of an employee’s

particular practice. Under the alternative reading, it

could prohibit taking an action because of an employee’s

practice that happens to be religious.

The distinction is perhaps best understood by example.

Suppose an employer with a neutral grooming policy

forbidding facial hair refuses to hire a Muslim who wears

a beard for religious reasons. Assuming the employer

applied the neutral grooming policy to all applicants, the

motivation behind the refusal to hire the Muslim appli-

cant would not be the religious nature of his beard, but its

existence. Under the first reading, then, the Muslim

applicant would lack an intentional-discrimination claim,

as he was not refused employment “because of ” the reli-

gious nature of his practice. But under the second read-

ing, he would have such a claim, as he was refused em-

ployment “because of ” a practice that happens to be

religious in nature.

One problem with the second, more expansive reading is

that it would punish employers who have no discrimina-

tory motive. If the phrase “because of such individual’s

religious practice” sweeps in any case in which an employer

takes an adverse action because of a practice that hap-

pens to be religious in nature, an employer who had no

idea that a particular practice was religious would be

penalized. That strict-liability view is plainly at odds with

the concept of intentional discrimination. Cf. Raytheon,

supra, at 54, n. 7 (“If [the employer] were truly unaware

that such a disability existed, it would be impossible for

her hiring decision to have been based, even in part, on

[the applicant’s] disability. And, if no part of the hiring

decision turned on [the applicant’s] status as disabled, he

cannot, ipso facto, have been subject to disparate treat-

ment”). Surprisingly, the majority leaves the door open to

Cite as: 575 U. S. ____ (2015) 5

Opinion of THOMAS, J.

this strict-liability theory, reserving the question whether

an employer who does not even “suspec[t] that the practice

in question is a religious practice” can nonetheless be

punished for intentional discrimination. Ante, at 6, n. 3.

For purposes of today’s decision, however, the majority

opts for a compromise, albeit one that lacks a foothold in

the text and fares no better under our precedents. The

majority construes §2000e–2(a)(1) to punish employers

who refuse to accommodate applicants under neutral

policies when they act “with the motive of avoiding ac-

commodation.” Ante, at 5. But an employer who is aware

that strictly applying a neutral policy will have an adverse

effect on a religious group, and applies the policy anyway,

is not engaged in intentional discrimination, at least as

that term has traditionally been understood. As the Court

explained many decades ago, “ ‘Discriminatory purpose’ ”—

i.e., the purpose necessary for a claim of intentional dis-

crimination—demands “more than . . . awareness of con-

sequences. It implies that the decisionmaker . . . selected

or reaffirmed a particular course of action at least in part

‘because of,’ not merely ‘in spite of,’ its adverse effects

upon an identifiable group.” Personnel Administrator of

Mass. v. Feeney, 442 U. S. 256, 279 (1979) (internal cita-

tion and footnote omitted).

I do not dispute that a refusal to accommodate can, in

some circumstances, constitute intentional discrimination.

If an employer declines to accommodate a particular reli-

gious practice, yet accommodates a similar secular (or

other denominational) practice, then that may be proof

that he has “treated a particular person less favorably

than others because of [a religious practice].” Ricci, 557

U. S., at 577 (internal quotation marks and alteration

omitted); see also, e.g., Dixon v. Hallmark Cos., 627 F. 3d

849, 853 (CA11 2010) (addressing a policy forbidding

display of “religious items” in management offices). But

merely refusing to create an exception to a neutral policy

6 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of THOMAS, J.

for a religious practice cannot be described as treating a

particular applicant “less favorably than others.” The

majority itself appears to recognize that its construction

requires something more than equal treatment. See ante,

at 6–7 (“Title VII does not demand mere neutrality with

regard to religious practices,” but instead “gives them

favored treatment”). But equal treatment is not disparate

treatment, and that basic principle should have disposed

of this case.

B

The majority’s novel theory of intentional discrimination

is also inconsistent with the history of this area of em-

ployment discrimination law. As that history shows, cases

arising out of the application of a neutral policy absent

religious accommodations have traditionally been under-

stood to involve only disparate-impact liability.

When Title VII was enacted in 1964, it prohibited dis-

crimination “because of . . . religion” and did not include

the current definition of “religion” encompassing “religious

observance and practice” that was added to the statute in

1972. Civil Rights Act of 1964, §§701, 703(a), 78 Stat.

253–255. Shortly thereafter, the EEOC issued guidelines

purporting to create “an obligation on the part of the

employer to accommodate to the religious needs of em-

ployees.” 31 Fed. Reg. 8370 (1966). From an early date,

the EEOC defended this obligation under a disparate-

impact theory. See Brief for United States as Amicus

Curiae in Dewey v. Reynolds Metals Co., O. T. 1970, No.

835, pp. 7, 13, 29–32. Courts and commentators at the

time took the same view. See, e.g., Reid v. Memphis Pub-

lishing Co., 468 F. 2d 346, 350 (CA6 1972); Dewey v. Reyn-

olds Metals Co., 300 F. Supp. 709, 713 (WD Mich. 1969),

rev’d, 429 F. 2d 324 (CA6 1970), aff ’d by an equally di-

vided Court, 402 U. S. 689 (1971) (per curiam); 1 B. Lin-

demann & P. Grossman, Employment Discrimination Law

Cite as: 575 U. S. ____ (2015) 7

Opinion of THOMAS, J.

187–188 (3d ed. 1976).

This Court’s first decision to discuss a refusal to accom-

modate a religious practice, Trans World Airlines, Inc. v.

Hardison, 432 U. S. 63 (1977), similarly did not treat such

conduct as intentional discrimination. Hardison involved

a conflict between an employer’s neutral seniority system

for assigning shifts and an employee’s observance of a

Saturday Sabbath. The employer denied the employee an

accommodation, so he refused to show up for work on

Saturdays and was fired. Id., at 67–69. This Court held

that the employer was not liable under Title VII because

the proposed accommodations would have imposed an

undue hardship on the employer. Id., at 77. To bolster its

conclusion that there was no statutory violation, the Court

relied on a provision of Title VII shielding the application

of a “ ‘bona fide seniority or merit system’ ” from challenge

unless that application is “ ‘the result of an intention to

discriminate because of . . . religion.’ ” Id., at 81–82 (quot-

ing §2000e–2(h)). In applying that provision, the Court

observed that “[t]here ha[d] been no suggestion of discrim-

inatory intent in th[e] case.” Id., at 82. But if the major-

ity’s view were correct—if a mere refusal to accommodate a

religious practice under a neutral policy could constitute

intentional discrimination—then the Court in Hardison

should never have engaged in such reasoning. After all,

the employer in Hardison knew of the employee’s religious

practice and refused to make an exception to its neutral

seniority system, just as Abercrombie arguably knew of

Elauf ’s religious practice and refused to make an excep-

tion to its neutral Look Policy.*

——————

* Contrary to the EEOC’s suggestion, Trans World Airlines, Inc. v.

Hardison, 432 U. S. 63 (1977), did not establish that a refusal to ac-

commodate a religious practice automatically constitutes intentional

discrimination. To be sure, Hardison remarked that the “effect of ” the

1972 amendment expanding the definition of religion “was to make it

an unlawful employment practice under [§2000e–2(a)(1)] for an em-

8 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of THOMAS, J.

Lower courts following Hardison likewise did not equate

a failure to accommodate with intentional discrimination.

To the contrary, many lower courts, including the Tenth

Circuit below, wrongly assumed that Title VII creates a

freestanding failure-to-accommodate claim distinct from

either disparate treatment or disparate impact. See, e.g.,

731 F. 3d 1106, 1120 (2013) (“A claim for religious discrim-

ination under Title VII can be asserted under several

different theories, including disparate treatment and

failure to accommodate” (internal quotation marks omit-

ted)); Protos v. Volkswagen of Am., Inc., 797 F. 2d 129,

134, n. 2 (CA3 1986) (“In addition to her religious accom-

modation argument, [the plaintiff] maintains that she

prevailed in the district court on a disparate treatment

claim”). That assumption appears to have grown out of

statements in our cases suggesting that Title VII’s defini-

tional provision concerning religion created an independ-

——————

ployer not to make reasonable accommodations, short of undue hard-

ship, for the religious practices of his employees and prospective em-

ployees.” Id., at 74. But that statement should not be understood as a

holding that such conduct automatically gives rise to a disparate-

treatment claim. Although this Court has more recently described

§2000e–2(a)(1) as originally creating only disparate-treatment liability,

e.g., Ricci v. DeStefano, 557 U. S. 557, 577 (2009), it was an open

question at the time Hardison was decided whether §2000e–2(a)(1) also

created disparate-impact liability, see, e.g., Nashville Gas Co. v. Satty,

434 U. S. 136, 144 (1977); General Elec. Co. v. Gilbert, 429 U. S. 125,

153–155 (1976) (Brennan, J., dissenting). In fact, both the employee

and the EEOC in Hardison argued before this Court that the employer

had violated §2000e–2(a)(1) under a disparate-impact theory. See Brief

for Respondent 15, 25–26, and Brief for United States et al. as Amici

Curiae 33–36, 50, in Trans World Airlines, Inc. v. Hardison, O. T. 1976,

No. 75–1126 etc. In any event, the relevant language in Hardison is

dictum. Because the employee’s termination had occurred before the

1972 amendment to Title VII’s definition of religion, Hardison applied

the then-existing EEOC guideline—which also contained an “undue

hardship” defense—not the amended statutory definition. 432 U. S.,

at 76, and n. 11. Hardison’s comment about the effect of the 1972

amendment was thus entirely beside the point.

Cite as: 575 U. S. ____ (2015) 9

Opinion of THOMAS, J.

ent duty. See, e.g., Ansonia Bd. of Ed. v. Philbrook, 479

U. S. 60, 63, n. 1 (1986) (“The reasonable accommodation

duty was incorporated into the statute, somewhat awk-

wardly, in the definition of religion”). But in doing so, the

lower courts correctly recognized that a failure-to-

accommodate claim based on the application of a neutral

policy is not a disparate-treatment claim. See, e.g., Reed

v. International Union, United Auto, Aerospace and Agri-

cultural Implement Workers of Am., 569 F. 3d 576, 579–

580 (CA6 2009); Chalmers v. Tulon Co. of Richmond, 101

F. 3d 1012, 1018 (CA4 1996).

At least before we granted a writ of certiorari in this

case, the EEOC too understood that merely applying a

neutral policy did not automatically constitute intentional

discrimination giving rise to a disparate-treatment claim.

For example, the Commission explained in a recent com-

pliance manual, “A religious accommodation claim is

distinct from a disparate treatment claim, in which the

question is whether employees are treated equally.”

EEOC Compliance Manual §12–IV, p. 46 (2008). Indeed,

in asking us to take this case, the EEOC dismissed one of

Abercrombie’s supporting authorities as “a case address-

ing intentional discrimination, not religious accommoda-

tion.” Reply to Brief in Opposition 7, n. Once we granted

certiorari in this case, however, the EEOC altered course

and advanced the intentional-discrimination theory now

adopted by the majority. The Court should have rejected

this eleventh-hour request to expand our understanding of

“intentional discrimination” to include merely applying a

religion-neutral policy.

* * *

The Court today rightly puts to rest the notion that Title

VII creates a freestanding religious-accommodation claim,

ante, at 3, but creates in its stead an entirely new form of

liability: the disparate-treatment-based-on-equal-treatment

10 EEOC v. ABERCROMBIE & FITCH STORES, INC.

Opinion of THOMAS, J.

claim. Because I do not think that Congress’ 1972 re-

definition of “religion” also redefined “intentional discrim-

ination,” I would affirm the judgment of the Tenth Circuit.

I respectfully dissent from the portions of the majority’s

decision that take the contrary view.