SC, Antonin Scalia says employers may NOT discriminate against Muslims (1 Viewer)

[Christo]

The ruling is that motive, not actual knowledge, is the material issue.

And that's nuts. They didn't know. She didn't tell them.

Why is that nuts? If I refuse to hire people wearing a hijab because I assume (correctly in this case) that it's for religious reasons and I don't want to have accommodate them, it seems pretty clear that that should be actionable under a Title VII if you start from the presumption that religious accommodation would be required. It's like refusing to hire people with Jewish sounding last names because you presume they are Jewish and will request Saturdays off. You don't know for sure that they're observant Jews as they haven't requested the accommodation, but that's your motivation for refusing to hire them. This seems like a pretty uncontroversial opinion.

Except to the 10th Circuit apparently.

 

[Officer Pete Malloy]

Can one of you lawyer type people explain the Hooters BBQWTF thing (maybe in relation to this)?

 

[bigbottom]

The ruling is that motive, not actual knowledge, is the material issue.

And that's nuts. They didn't know. She didn't tell them.

Why is that nuts? If I refuse to hire people wearing a hijab because I assume (correctly in this case) that it's for religious reasons and I don't want to have accommodate them, it seems pretty clear that that should be actionable under a Title VII if you start from the presumption that religious accommodation would be required. It's like refusing to hire people with Jewish sounding last names because you presume they are Jewish and will request Saturdays off. You don't know for sure that they're observant Jews as they haven't requested the accommodation, but that's your motivation for refusing to hire them. This seems like a pretty uncontroversial opinion.

Except to the 10th Circuit apparently.

Yeah, the 10th Circuit was pretty roundly criticized for its shoddy reasoning. And when you have Alito basically making fun of you, that says a lot.

 

[Mister CIA]

The ruling is that motive, not actual knowledge, is the material issue.

And that's nuts. They didn't know. She didn't tell them.

Why is that nuts? If I refuse to hire people wearing a hijab because I assume (correctly in this case) that it's for religious reasons and I don't want to have accommodate them, it seems pretty clear that that should be actionable under a Title VII if you start from the presumption that religious accommodation would be required. It's like refusing to hire people with Jewish sounding last names because you presume they are Jewish and will request Saturdays off. You don't know for sure that they're observant Jews as they haven't requested the accommodation, but that's your motivation for refusing to hire them. This seems like a pretty uncontroversial opinion.From http://www.huffingtonpost.com/2015/06/01/supreme-court-abercrombie_n_7464534.html :

Justice Samuel Alito, a member of the court's conservative wing, signaled his leaning on the case during oral arguments in February, when he raised a hypothetical situation that, by his own admission, sounded "like a joke."

"So the first is a Sikh man wearing a turban. The second is a Hasidic man wearing a hat. The third is a Muslim woman wearing a niqab. The fourth is a Catholic nun in a habit," Alito said. "Now, do you think ... that those people have to say, 'We just want to tell you, we're dressed this way for a religious reason. We're not just trying to make a fashion statement'?"

Alito said there were ways for an employer to address the issue without directly asking a job applicant about his or her religion. In the hypothetical case of someone who appears to be Middle Eastern and who wears a long beard, he asked, "Why can't the employers just simply say, 'We have a "look policy" that doesn't permit beards. Can you comply with that policy?'"

Not all garb is religious, and even if one's clothes are indicators of one's beliefs I don't immediately recognize the religious significance to the clothes - the same way I don't associate Protestant beliefs with camo gear and overalls..

 

[bigbottom]

The ruling is that motive, not actual knowledge, is the material issue.

And that's nuts. They didn't know. She didn't tell them.

Why is that nuts? If I refuse to hire people wearing a hijab because I assume (correctly in this case) that it's for religious reasons and I don't want to have accommodate them, it seems pretty clear that that should be actionable under a Title VII if you start from the presumption that religious accommodation would be required. It's like refusing to hire people with Jewish sounding last names because you presume they are Jewish and will request Saturdays off. You don't know for sure that they're observant Jews as they haven't requested the accommodation, but that's your motivation for refusing to hire them. This seems like a pretty uncontroversial opinion.From http://www.huffingtonpost.com/2015/06/01/supreme-court-abercrombie_n_7464534.html :

Justice Samuel Alito, a member of the court's conservative wing, signaled his leaning on the case during oral arguments in February, when he raised a hypothetical situation that, by his own admission, sounded "like a joke."

"So the first is a Sikh man wearing a turban. The second is a Hasidic man wearing a hat. The third is a Muslim woman wearing a niqab. The fourth is a Catholic nun in a habit," Alito said. "Now, do you think ... that those people have to say, 'We just want to tell you, we're dressed this way for a religious reason. We're not just trying to make a fashion statement'?"

Alito said there were ways for an employer to address the issue without directly asking a job applicant about his or her religion. In the hypothetical case of someone who appears to be Middle Eastern and who wears a long beard, he asked, "Why can't the employers just simply say, 'We have a "look policy" that doesn't permit beards. Can you comply with that policy?'"

Not all garb is religious, and even if one's clothes are indicators of one's beliefs I don't immediately recognize the religious significance to the clothes - the same way I don't associate Protestant beliefs with camo gear and overalls..

That wasn't the issue presented in the case as I understand it. The theory here is that the interviewer assumed correctly that the applicant was Muslim because of her headscarf, and didn't hire her because it was anticipated that she would request a religious accommodation to wear the headscarf. The issue ruled on by the Supreme Court is whether the employer would have a defense if it didn't have actual knowledge of the applicant's religion/need for accommodation (because she didn't come out and say it) even if that was the precise motivation for refusing to hire her.

 

[Aerial Assault]

Can one of you lawyer type people explain the Hooters BBQWTF thing (maybe in relation to this)?

I don't think that's ever been litigated - someone correct me if I'm wrong. Many men have sued Hooters over the last 20-25 years claiming that they couldn't get hired as servers, and Hooters always defended with the BFOQ ("bona fide occupational qualification") assertion, the same general rule that enables, say, airlines to have an age maximum for pilots in some (not all) cases. However, I think every single one of those cases settled out of court.

This SCOTUS decision is pretty narrow and actually leaves the "undue hardship" and BFOQ questions for remand to the trial court, because what SCOTUS did here was to reverse the Tenth Circuit's grant of summary judgment in favor of AF, which ended the case in AF's favor. All the SCOTUS decision really says is that knowledge of an applicant's religion in a failure-to-accomodate case is not required, because the statute doesn't require that the employer know anything.

This is one of those weird decisions where some of the righties on the Court defer to a "religious" (pun intended) reading of a statute because it gives them cover for other, similar decisions. Scalia loves his literalism, and here's an exhibit that supports that.

Basically, when you have three opinions on an employment matter, all written by the Court's three most conservative members, you know the case wasn't litigated or decided well in the courts below.

TL; DR: Hooters cases are different and the central issue there wasn't part of this appeal. All this SCOTUS decision says is that the failed applicant isn't required to show that the employer knew about the applicant's religion in order for the failed applicant to establish intentional discrimination.

 

[Officer Pete Malloy]

Can one of you lawyer type people explain the Hooters BBQWTF thing (maybe in relation to this)?

I don't think that's ever been litigated - someone correct me if I'm wrong. Many men have sued Hooters over the last 20-25 years claiming that they couldn't get hired as servers, and Hooters always defended with the BFOQ ("bona fide occupational qualification") assertion, the same general rule that enables, say, airlines to have an age maximum for pilots in some (not all) cases. However, I think every single one of those cases settled out of court.

This SCOTUS decision is pretty narrow and actually leaves the "undue hardship" and BFOQ questions for remand to the trial court, because what SCOTUS did here was to reverse the Tenth Circuit's grant of summary judgment in favor of AF, which ended the case in AF's favor. All the SCOTUS decision really says is that knowledge of an applicant's religion in a failure-to-accomodate case is not required, because the statute doesn't require that the employer know anything.

This is one of those weird decisions where some of the righties on the Court defer to a "religious" (pun intended) reading of a statute because it gives them cover for other, similar decisions. Scalia loves his literalism, and here's an exhibit that supports that.

Basically, when you have three opinions on an employment matter, all written by the Court's three most conservative members, you know the case wasn't litigated or decided well in the courts below.

TL; DR: Hooters cases are different and the central issue there wasn't part of this appeal. All this SCOTUS decision says is that the failed applicant isn't required to show that the employer knew about the applicant's religion in order for the failed applicant to establish intentional discrimination.

Ah, got it.