Today’s U.S. Supreme Court case

The United States Supreme Court ruled today, by an 8-1 margin, for an expansive reading of antidiscrimination law, holding Abercrombie & Fitch can be sued for failing to hire a Muslim woman who came to a job interview wearing a headscarf.

It matters not whether the fashion retailer had actual knowledge that applicant Samantha Elauf was Muslim, or even whether she revealed her religion, Justice Scalia wrote in EEOC v. Abercrombie & Fitch. Employers can be liable under the federal antidiscrimination law [“Title VII”] for failing to accommodate a religious practice because they suspect, or should suspect, it might be an issue.

You can read the Court’s full decision here.

Does this case also apply to nonprofits? Presumably, yes.

Is this an important case?

Yes, I would say this case is important, for three reasons.

Why is this an important case?

First, an 8-1 majority, with Justice Scalia finding for the plaintiff . . . it’s a real statement. The vote was not close and a conservative jurist found for the plaintiff rather than the business.

Second, you can give the case a narrow reading, or a more broad reading, but if you give it a broad reading, the case is surely impactful. Allow me to explain.

Read narrowly, the case casts severe doubt on employers’ “look” policies, the basis of Abercrombie & Fitch’s defense. Not many businesses – sure, some, but I doubt many – will have a “look” policy, asking their employees to have a certain look, as Abercrombie & Fitch did.

Read more broadly, the case stands for the proposition that employers can’t use the“we didn’t know” defense. The question is not what the employer actually knew, but what can the employer reasonably be said to have known.

Third, employment cases often hinge on summary judgment, the procedure at issue here. If the employer-defendant thinks it can make a motion for summary judgment, and kick the case before it gets to a jury, it surely will. If the employer-defendant thinks it doesn’t have a reasonable chance to obtain summary judgment – in other words, the case is more likely to go to a jury – the case is more likely to settle. Today’s Supreme Court decision makes summary judgment overall less likely, at least in federal courts, and thus will increase the chances of businesses offering settlement money.

Cautionary note

Remember, all individuals and businesses are unique and have unique legal issues. This article is presented for informational purposes only, not as legal advice. Consult a legal professional in your state for personal advice.

Gordon Fischer Law Firm, P.C. is dedicated to promoting and maximizing charitable giving in Iowa. Gordon can be reached by phone at 515-371-6077; by email at; and through his website at

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