EEOC v. Abercrombie & Fitch Stores, Inc. , 135 S. Ct. 2028 ( 2015 )

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