Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. I think, you know, it's two out of three. Is that sufficient? So, Your Honor, I think that if I could explain how these cases come up, I think it will- the best way to answer your- there would be the best way to answer your question. The answer is- in a situation like this in which it's an applicant applying for a- position and the employer suspects things two-thirds that there's a religious problem, the- a religious conflict. The employer has two options. It can assume there is no conflict, in which case they make the hiring decision on the merits. In that case here, Ms. Elaufe would have been hired. Alternatively, if the employer feels like there's enough concern to- about how Ms. Elaufe would be able to perform, they can start a dialogue. That's what Congress intended. What they can't do is what they did here and assume through a stereotype that there was going to be a need for accommodation. And then say, having assumed that, I don't have any obligation to actually try to accommodate- Is that true, even- Go ahead. Is that true, even if it's under 50 percent? Another word say the employer says, you know, I really don't know, but I think that there's like a 50-50 chance or even a 40 percent chance that this person has a religious, this practice is religious, and I don't really feel like getting into all this accommodation stuff, so I'm not going to hire this person. So I think you're on of that, that's what they cannot do. But I do think- So it doesn't really depend on what the percentage chance is. So I think that I- The certain, it could be less than certain, it could be a lot less than certain. As long as the employer says, there's some chance, and I'm not going to hire or promote a fire or whatever, because of that chance. So your honor, I would like to try to separate out two different situations that could arise, only one of which we think arises commonly. One is that the employer has a work rule and is concerned that the applicant before won't be able to comply in the future with the- after being hired, with the work rule, because they perceive that the person is religious. I think the dilemma that your honor is posing is really a false one there. If the employer really has a very small understanding or thinks it's very unlikely that the employer will be religious, the right thing for the employer to do is to assume that there isn't a religious problem, to not engage in the stereotyping, and assume that the person could comply as they would with somebody who was wearing a headscarf or something else for not- I'm not sure I understand why you're fighting Justice Kagan's question. Isn't the issue the reason that they acted? They refused to hire someone because they had a 1% belief that they had a religious pardon upon a religious belief that they wouldn't accommodate. So, Your Honor, I don't intend to fight Justice Kagan's hypothetical. And on the facts of this case, I think it's really quite easy. But the reason why I'm trying to separate the two is because I think the situation here is the easy case, and I'll get to why the hard case and why I'm sort of fighting Justice Kagan's fight for the- You're just confusing me enormously. Would you tell me what it is you want? I mean, you just say he understands. That doesn't do anything for me. What he understands, knows, believes, suspects, what other words do you need? So, Your Honor, the test that the courts of appeals have adopted for more than two decades, which is the test that we ask this Court to adopt, is that the employer needs sufficient information from any source about the employee, about the applicant's religious needs, that to permit the employer to understand the existence of a conist. That's the test that the courts of appeals have been- I know, I know, I know, I know what they think is. That makes sense to me. But Your Honor, the reason why I think it makes sense in this case is because if it's sufficient knowledge for you to actually act upon it

. Remember, if they- if the critical point here for us is if they had not- if the employer had not assumed that this was religious, had not believed it, they would have hired her. The default rule for I'm not sure is higher. Mr. Gerson? The first one, the person responsible for hiring, didn't she say to the district manager, I think she's wearing this headscarf for religious reasons. And that's why I'm checking it out with you. The answer she got back was, it doesn't matter whether it's religious reasons. We don't accommodate people who wear headscoffs. That's right, Your Honor. So it seems that the district manager is- his point of view is headscoffs are out. This particular woman was wearing one for religious reasons, but it doesn't matter what reason. We don't accommodate headscoffs. I think that's right, Your Honor. And that's exactly what Congress said when it enacted these provisions that if you didn't want to happen. There's no law against such a rule. Any employer can have a rule. We don't allow headscarves. And until someone applies for a job who for a religious reason wants to wear a headscarf. And the employer knows that it's for a religious reason or suspects or believes or understands whatever verbs you want to use. There's been no violation of the law. You can have that rule. Absolutely. We do not allow our employees to wear headscars. Nothing wrong with that rule. That's correct, Your Honor. But once- So the main fact that this supervisor said that doesn't prove a violation by the employer. Well, I don't agree with that, Your Honor. I think once it's clear that the employee needs an accommodation of that rule, that's exactly what Title VII requires. That's what the Court addressed in Hartison. It was a neutral rule that you had to work on the Sabbath. That's right. But that's a- That supervisor did not have that knowledge

. Oh, no, Your Honor. That's not correct. And I took from Justice Ginsburg's question that what we believe to be the case, that Cook conferred conveyed to her supervisor, Johnson, that it was for a religious reason. There's a dispute in testimony about this. But what Cook said, and remember, summary judgment has now been granted against us. So the evidence read in our favor, what Cook said was, I told Johnson that it was for religious reasons, and Johnson said, if we allow this, then someone will paint themselves green and call it a religion, we can't allow it. So the Court decides the question on the assumption that the decision-makers knew, well, and your solution that you suggested is that if there's some doubt, the employer shouldn't begin a dialogue, I think it's what you mean. But I think that may promote stereotypes to a far greater degree than what you're objecting to. And let's say you have someone of Middle Eastern appearance who shows up for the interview and with the beard. And the employer, like Abacrombian Fitch, they don't like beards. They don't want their models, as they call them, having beards. But he doesn't know if the beard is therefore a religious reason or not. So if you think it's better for him to sit there and start asking this applicant questions, you would not ask anyone else about religion, why are you wearing a beard? Is there a religious reason for that? So that seems that your solution causes more problems. So you're right. I have two responses that I'd like to say. First, I don't think it's right that the solution causes more problems, because I don't think that what Congress would have preferred is that the person not get hired than that the dialogue be begun. If those are the two options, I think it's clear Congress wanted an accommodation of the religious practice. But I also think that your honor is hypothetical, points out quite nicely that it's a somewhat artificial situation here. What the employer is saying is, I don't want a beard when the person is on the floor. But that's not a reason not to hire someone who walks in the door with a beard. The New York Yankees, for example, have for decades had a no-facial hair policy. But they don't not pursue free agents that wear beards. They assume that those free agents can shave once they get to the floor. Yes, it will for an employer to say, look, I don't want to buy into some problem with a guy who has a beard. I'm going to say, can you shave it? He's going to say no, or he's only going to shave twice a week. I mean, there's a reason we'd say, let's say, I don't care if it's religious, a religious reason or not. The guy shows up with the beard. I'm not going to hire him. So your honor, that's the hard question, I think Justice Kagan was asking. I do think that's a trickier question. If your policy is not, I have a work rule that I'm concerned you won't be able to comply with in the future

. Then I think, for all the reasons I've said just far, it's all said. If the question is, when someone comes to my office with a beard and I just think they're, it's unkempt. I don't like it. I'm not going to hire them regardless of whether they could comply. I think that's the situation that presents this. Is it one third? Is it two thirds? I think that's a hard question. It's not the one presented here and quite candidly. It's not the kinds of cases that we actually see. They much more are the work rule. You could avoid those hard questions, whether it's understand, believe, suspect, by adopting the rule at the court of appeals adopted here. And that is, if you want a sue me for denying you a job for a religious reason, the burden is on you to say, I'm wearing the headscot for a religious reason or I'm wearing the beard for a religious reason. That avoids all problems. Once you notify the employer that it's for a religious reason, you got them. If the employer tell her, the employer tell her that it had this look policy. And so that headscot would violate. How could she ask for something that you didn't know the employer had such a rule? That's exactly the problem, Justice Ginsburg and Justice Scalia in response to your question. The reason that's insufficient is that it is simply not the case that respond, as Resson suggests, that the superior knowledge is with the applicant in that situation. The applicant is not on notice of what the work rules are. And indeed, in this situation, the testimony was uncontroverted that Miss Eloft did not know there was a look policy that prohibited the headscarf. Well, this is not the place to get into the facts, but I thought her friend told her to wear at least a colored scarf. So the subject came up. But actually, Justice Kennedy, we're not fact finders. No, I understand, but it's important, Your Honor, because actually that in fact supports our position, because what her friend said was, there's no problem with a headscarf, it just shouldn't be black. And so she then wore that, if anything, she was on notice that there was no problem with the headscarf. So I actually think it cuts exactly the other way. And Justice Ginsburg, to pick up on your point, what makes it particularly inappropriate, I think, to put the burden on the applicant here, is that it's the employer who gets to structure the interview. And in fact, the employer here read some version of the look policy, but did not mention the headscarfs. So actually, this was a situation in which the employer itself could have put Ilafa notice, and then it's a very different situation. If the employer says, we don't allow headscarfs, and then the employee doesn't say anything. I think that's a very different situation. To get back to my beard case, is there, if it's a someone with a Middle Eastern appearance with a beard, you want the employer to begin some kind of a dialogue

. If it's somebody who's not Middle Eastern and has a beard, can the employer assume, well, I don't think that's for religious reasons. In other words, he's going to be asking religious questions of some people based on the stereotype. Why not ask about religious? Could you please answer my question, please? Sure, Your Honor. Although part of the answer is that I don't think that the employer does. As I said earlier, the right approach for the employer who really wants to avoid the subject is to assume that the person of Middle Eastern descent, just like the person not of Middle Eastern descent, has a beard for personal preference and would be happy to shave if he got the job in order to comply with the work rules. And that is what is critical for it. That is what Congress wanted to achieve. So why can't the employer just simply say, we have a look policy that doesn't permit beards? Can you comply with that, Your Honor? Absolutely, Your Honor. That's all they have to do. They're not fast about reasons or no reasons. It doesn't really matter why. Right. So I tried to make clear there are two options. One is the one I gave to the Chief Justice, which is you can assume the person doesn't work for religious reasons and then hire them. Or if you're concerned about it, you can ask a specific question. The EEOC has made clear that that is the question is supposed to be why are you wearing a beard? No, the question is we have a work rule that prohibits facial hair on the floor, on the force, on the- So that doesn't cover anything that's not immediately apparent by the appearance. You make them have a code of conduct that presumably would go through several pages. Here are all the things we require. Any problem with any of them? So Your Honor, I actually think that this is a protect- that the employer is at no risk of liability. If he asks no questions, but makes no assumptions and stereotypes. And that's why I don't think what Your Honor is hypothesizing turns out to be a problem in practice. What is going on is that in the mind-run of cases that the EEOC brings and that we see in these cases. Is you're talking about a work rule. You're talking about you must wear pants at work and the employer has a religious objection, thinks women should wear skirts. You're talking about a no-long hair policy. You're talking about groom and garb. And the concern is will you be able to comply in the future? The employer doesn't have to run down those questions. The employer can assume there's no religious problem, can avoid the stereotype. However, if the employer wishes what the court said in insomnia is that a bilateral dialogue is what Title VII is designed to accomplish. And so picking up on Justice Sotomayor's point, you could raise the policy. And this is not a crazy idea

. This is what responding to you. Can I ask, can you do it? Is that the only religious preference that has to be honored? I can, but you know, really I would like not to for a religious reason. I guess I could take off my headscarf or whatnot, but it would be very inappropriate, but religiously uncomfortable. Is that it? So, are you acknowledging that the only accommodation that has to be made is an accommodation for somebody who absolutely for religious reason cannot do something? No, you're unwritten. I do not think so. But that is not what this case about. Because you can't ask that. You cannot ask. What's it you're telling them to ask? Can you do it? Oh, yes, I guess I could. But that's the exact dialogue that's supposed to happen. That's what this court said should happen. That's the bilateral dialogue. What Congress wanted when it passed a reasonable accommodation requirement is precisely for the employer and the employee or the employee. So she says yes I could. And then later says, yeah, I could, but boy, it is really uncomfortable for me to do that for religious reasons. Would she still have a lawsuit? Well, she wouldn't have a lot of what she might have. Yes, I could. Well, if she could, then she was hired. Then when she says actually now it's quite uncomfortable, that's a request for an accommodation. And she and the employer need to go into a discussion, just like you would if you said, I need this, I need this time off to attend a religious conversion ceremony, which was at issue in the Ninth Circuit case in Heller. That's just the back and forth of every day employer employee. What could the employer say? We have a policy no beards or whatever. Do you have any problem with that? Why does it have to be phrased? Could you do it? Just like do you have any problem with that? Are you willing to do it? It's a matter. I think what Title VII is about what this Court is recognizing, and what certainly the EOC is recognized, is the actual accommodation back and forth is quite a flexible process. It's designed to be collaborative. And so there isn't a fixed rule you have to phrase it this way or phrase it that way. I think the point is to initiate the dialogue. And I think had that happened here, then we would be talking about a different point in the process about whether there was a reasonable accommodation that could be done and whether it could be done without undue hardship. But that dialogue never happened here. And that is the problem with the case, as we see it. And the response that says, you switched theories in mid-screen that you started out with refusal to accommodate theory

. And then you abandoned that. Is that not correct, Justice Ginsburg? From the very beginning, our theory has been that the respondent violated Title VII by refusing to accommodate Miss Elowff. That was the theory that was presented in the complaint. It's the theory we got some rejudgment and damages on. It's the theory we defended in the Court of Appeals, and it's the theory we have proceeded under on all of our cases here. There has been no switch. The phrase of religious accommodation appears 14 times in a row. So that's disparate treatment plus failure to accommodate. So they have secreted on the word disparate treatment. I'd like to, if I could avoid a yes or no and just explain our position on disparate treatment, Justice Kennedy. The phrase used in the brief was that a failure to accommodate is the kind of disparate treatment that Title VII was designed to prevent. We think that is correct and accurate. That what the Congress meant to do was put people who needed an accommodation like Miss Elowff, a headscarf accommodation, on the same footing as people who did not need to wear head gear. That is the sense in which we, this is disparate treatment. However, we recognize that the EEOC and the lower courts have used disparate treatment in another way, which is to say there's a disparate treatment way to prove discrimination or failure to accommodate theory. We did not and to highlight the difference of disparate treatment would be you allow all hats, but not religious hats. That's disparate treatment. This is, you don't allow any hats, but we want to wear a religious hat. That would be a failure to accommodate. We did not, at any point in this case, abandon or change our theory from the failure to accommodate. What the other side has done is assert not only that we did that, but we did it for some motive because we wish to avoid a 1981 A question. A question in which a no court has ever adopted their theory and which at no point in this litigation have they ever raised. Even though 1981 A was the only theory on which we could get damages in the district court, we had a damages trial in 1981 A was the only source of damages. They never raised it. Our pre-trial brief said we're proceeding under 1981 A. The district court's pre-trial order listed 1981 A. That was the best I'm sorry. Again, I'm a little confused. I didn't know. I read your complaint and it says, the respondent refused to hire Miss Elow because she wears a hoofbead and further failed to accommodate her religious belief by making an exception to the look-paw policy. I looked at your briefs

. I looked at the jury charge and it seems like the two were always tied. The failure to hire was because they refused to accommodate her. That's correct, Your Honor. And that has been our theory from the very beginning. So the idea that 1981 A magically became part of this case when we mentioned the word disparate up in our opening brief is just not credible. That has been the theory. They appealed. That's where the damages were done. They never raised it on appeal. They never raised it in the class. But it's supposed they had. Their argument is that you pick damages only for intense harm. So, Your Honor, no court has ever addressed that, but our position is, and this is how the courts have uniformly applied it, that this is intentional discrimination under 1981 A. Although it's not a question that's before this court. The reason for that is 1981 A distinguishes between, and this is, I'm sorry, Your Honor, it's in the red brief on page 1A, and it's 42 U.S.C. 1981 A A. It distinguishes between unlawful intentional discrimination, not an employment practice that is unlawful because of its disparate impact. The failure to accommodate claim is neither disparate impact claim, and it is intentional discrimination for exactly the reason that Justice Sotomayor has said. It's the intentional refusal to hire because of a religious practice that you could reasonably accommodate. And this is not as the amicus, some of the amicus recipes have suggested just a disparate impact claim. I'm sorry to be up to this. I don't know why you just don't concede that that's a form of disparate treatment. Failure to accommodate is a form of disparate treatment. I don't accommodate you because of your religion, disparate treatment. So, Your Honor, as I try to suggest, I think it is a form of disparate treatment as we've used it in the act. I just want to distinguish the different theories because under a disparate treatment approach, there is a, as the lower courts have used it, you would have to show that it was because of the religious nature of the practice that you didn't accommodate. So, for example, again, that I allow hats for everyone, but not if you have a religious hat. That would be, as the lower courts have called, a conventional disparate treatment claim. If I could reserve the balance of my time

. Thank you, Council. Mr. Beretsky? Mr. Chief Justice, and may it please the court. The premise of the EEOC's argument today, as I understand it, is that Abokrombi acted because of the religious basis for Ms. Elow's headscarf. That is not correct as a factual matter, and the EEOC's theory and its brief does not depend on any such assumption. The EEOC's theory and its brief is that any time an employer suspects a possible conflict or correctly understands such a conflict, at that point it is on notice and must offer a religious accommodation. And so, if you imagine a situation which is not at all on real life, you have to offer a religious accommodation if they have a reasonable basis, not to. I mean, you follow the statute. You only have to accommodate if it's not an undue burden. That's true. They always have the undue burden defense, but absent an undue burden, they must accommodate and they must depart from a religion-neutral policy based on a mere suspicion of a possible conflict. No. It's not an unbe-, we go back to their position. Well, it's very simple because you're mischaracterizing it. Their position is, if you believe that someone believed, no, were a lot of adjectives, that someone will need a religious accommodation and won't comply with your policy. Just ask them. You have just the way Justice Alito said, you know, we don't permit facial hair on the floor. You have a problem with that. Justice Alito, as an initial matter, their theory and their brief does not depend on any sort of assumption about whether the applicant would later be able to comply with the work rule or not. Under the theory expressed in their brief, even if an employer like Abercrombie had a policy in which the look policy applied at the interview, you are being assessed at the interview based on your compliance with our dress. Do you think that the employee has to say, I'm dressed the way I am for a religious reason? Not necessarily, however, the employer's knowledge has to be traced to the employee in some way. In the typical case that is going to come directly from the employee because of the individual eyes and personal nature of religion. Well, let's say four people show up for a job interview at Abercrombie. This is going to sound like a joke, but, you know, it's not. So the first is a Sikh man wearing a turban. The second is a hecidic man wearing a hat. The third is a Muslim woman wearing a knee-cob. The fourth is a Catholic man in a habit. Now, you think the employer has to, 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. First of all, you're on one aspect of your hypothetical is not a joke, and that is that many of these interviews at Abercrombie are, in fact, group interviews. And I think the re-a... Group interviews where there are multiple applicants at a time. And so I think the reality is it's a lot more difficult than the government imagines to start having these individual eyes dialogues. But going to your point about those sorts of religious outfits, one can certainly imagine cases in which it is more obvious than others that a particular garb is likely worn for religious purposes. However, I would direct the Court if I could to join appendix 130 and 131, which contained pictures of the sort of head scarf that Ms. Eelof was actually wearing in this case. Those sorts of situations where it's far more ambiguous, whether a particular outward symbol is religious in nature or not, will be far more complex. Well, that can be the case. But what I want to know the answer to the question whether the employee has to say wearing this for a religious reason, or whether you're willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes. No, Your Honor. I think there are some circumstances that you should have certainly more likely than others. But the question before the Court is to devise a rule that's going to apply across the board. Actually, I didn't think that was the question. I thought the question presented was that the tenth circuit had said, employer unless you know from the woman who is applying from the applicant, unless you receive direct explicit notice that what she wants to wear is based on religion and she wants an accommodation. Unless you receive direct explicit notice from her, your home free, do what you want. Now, in their question presented, they say in the last few words of describing it, we think that's wrong. Now, I agree that we have to say whether that's wrong and if it is wrong, it would be helpful to say what they have to do. So the SG says, here is what it is. If the employer correctly infers, correctly understands, and I would add, or correctly believes that a practice is religious and an accommodation is necessary, that's it. Then he has to accommodate unless he has one of the excuses under the statute, etc. Okay. What's wrong with that? Just a spire, I think what you've just described is a rule for all cases and it's one that is entirely unadministrable for courts, employers, and applicants alike. Is it unadministrable to say that if the employer believes, thanks. This woman is religious and needs an accommodation, and he's right. Well, do something unless you have an excuse. What, why is that unadministrable? Your Honor, I believe that's unadministrable because the EEOC does not explain what level of certainty is required for a belief versus suspecting. Oh, no, you have to prove. This is his correct. You have to prove he has a belief. Now, we probably, in 250,000 federal cases a year of those, say, 80,000 that go to trial, proving that somebody has a belief for other is probably an issue at 90 percent of them. Now, I'm making that up, that number. But nonetheless, I don't think it's uncommon in the law that you have to prove that somebody believes something. So we say, the standard of proving belief is like in any other case. I don't think this is like any other case because you're dealing with something religious belief, which is inherently personal to the individual, and to charge employers with Title 7 liability and require them to come to an understanding of whether a particular practice is religious or not. I'm just going to say, I'm just going to say, I'm just going to say, I'm just going to say, and his name is Noah Goldberg. And he looks kind of Jewish. And the employer doesn't know he's Jewish. No absolute certainty, and certainly Mr. Goldberg doesn't say anything about being Jewish, but the employer just operates on an assumption that he's Jewish, so no, he doesn't get the job. Is that a violation? That is a disparate treatment violation of Title 7. That has got to be against the law, right? It doesn't matter whether the employer, it doesn't matter whether the employer knows it to an absolute certainty, right? Absolutely, because in that situation, what's relevant is the employer's intent. If the employer intends to discriminate on the basis of religion, then that's a Title 7 violation. What's going on here, however, is that the employer seeks to apply a religion neutral dress code. Religion, according to Johnson and Tess. Title 7, you would be right if all of the Title 7 did was prevent religious discrimination. But it makes a religious practice, a refusal to accommodate a religious practice, is itself a violation of Title 7. So we have to, and that was done deliberately, was it not? So that religious practices would have to be accommodated. Yes, Your Honor, and two points in response to that, if I may. One, we're not contending that religious practices don't have to be accommodated. What we are contending as an initial matter is that an employer does not intentionally discriminate on the basis of a religious practice by enforcing a religion neutral dress code that would have been, of course, a- But the thing about my question was, is that what this statute does is to say that if you are, in fact, wearing a headscarf for religious reasons, that your neutral policy really doesn't matter. It only matters if you, there's an undue burden and you really can't make an accommodation. But except for that, it really doesn't matter. You just have to hire me, even if I'm wearing a headscarf. And so the fact that you don't know that I'm wearing a headscarf for religious reasons, that you only kind of assume that, because most people do wear headscarfs for religious reasons, it shouldn't make any more difference than in the hypothetical that I gave. You're on, on, on that logic, it also would make no difference if the employer had absolutely no idea that the headscarf was worn for religious reasons, because it would still be a religious headscarf and a religious practice, not even the EEOC is claiming that there's a duty to accommodate in that situation. And so the question before the court is, at what level of knowledge does the employer have to have before the duty to accommodate his trick? For 40 years, the EEOC's own guidance has put the burden to initiate the conversation on the employee, because only the employee knows the rule. But here, the employee had no reason to think that there was anything offensive about her dress. How can she say, by the way, I have a religious reason for wearing this headscarf, when everything from all of the appearances, the employer doesn't care, it's okay to wear her headscarf

. This is his correct. You have to prove he has a belief. Now, we probably, in 250,000 federal cases a year of those, say, 80,000 that go to trial, proving that somebody has a belief for other is probably an issue at 90 percent of them. Now, I'm making that up, that number. But nonetheless, I don't think it's uncommon in the law that you have to prove that somebody believes something. So we say, the standard of proving belief is like in any other case. I don't think this is like any other case because you're dealing with something religious belief, which is inherently personal to the individual, and to charge employers with Title 7 liability and require them to come to an understanding of whether a particular practice is religious or not. I'm just going to say, I'm just going to say, I'm just going to say, I'm just going to say, and his name is Noah Goldberg. And he looks kind of Jewish. And the employer doesn't know he's Jewish. No absolute certainty, and certainly Mr. Goldberg doesn't say anything about being Jewish, but the employer just operates on an assumption that he's Jewish, so no, he doesn't get the job. Is that a violation? That is a disparate treatment violation of Title 7. That has got to be against the law, right? It doesn't matter whether the employer, it doesn't matter whether the employer knows it to an absolute certainty, right? Absolutely, because in that situation, what's relevant is the employer's intent. If the employer intends to discriminate on the basis of religion, then that's a Title 7 violation. What's going on here, however, is that the employer seeks to apply a religion neutral dress code. Religion, according to Johnson and Tess. Title 7, you would be right if all of the Title 7 did was prevent religious discrimination. But it makes a religious practice, a refusal to accommodate a religious practice, is itself a violation of Title 7. So we have to, and that was done deliberately, was it not? So that religious practices would have to be accommodated. Yes, Your Honor, and two points in response to that, if I may. One, we're not contending that religious practices don't have to be accommodated. What we are contending as an initial matter is that an employer does not intentionally discriminate on the basis of a religious practice by enforcing a religion neutral dress code that would have been, of course, a- But the thing about my question was, is that what this statute does is to say that if you are, in fact, wearing a headscarf for religious reasons, that your neutral policy really doesn't matter. It only matters if you, there's an undue burden and you really can't make an accommodation. But except for that, it really doesn't matter. You just have to hire me, even if I'm wearing a headscarf. And so the fact that you don't know that I'm wearing a headscarf for religious reasons, that you only kind of assume that, because most people do wear headscarfs for religious reasons, it shouldn't make any more difference than in the hypothetical that I gave. You're on, on, on that logic, it also would make no difference if the employer had absolutely no idea that the headscarf was worn for religious reasons, because it would still be a religious headscarf and a religious practice, not even the EEOC is claiming that there's a duty to accommodate in that situation. And so the question before the court is, at what level of knowledge does the employer have to have before the duty to accommodate his trick? For 40 years, the EEOC's own guidance has put the burden to initiate the conversation on the employee, because only the employee knows the rule. But here, the employee had no reason to think that there was anything offensive about her dress. How can she say, by the way, I have a religious reason for wearing this headscarf, when everything from all of the appearances, the employer doesn't care, it's okay to wear her headscarf. The employer has not given her notice of this look policy. So how is she supposed to intrude the question that, as far as all of the appearances go, it's fine. She's wearing a headscarf. There's no look policy that the employee knows that's violated. Just to Ginsburg, I respectfully disagree with that characterization of what went on here. But Ms. Eeroff knew enough about Abercrombie to understand that it had a dress code. No enough about Abercrombie to ask in advance. You testified she knew they had a dress code? I was not aware of that. She testified that she knew that she would have to wear Abercrombie-style clothes that's joined Appendix 23. She knew that Abercrombie did not sell headscarf. And she did, in fact, she came in with an Abercrombie-type shirt, right? She did, but she also knew that Abercrombie did not sell headscarves. That's a join Appendix 37 to 38. But she had asked a friend to work for Abercrombie whether the headscarf was a problem. And the friend said, no, if it's not black, it should be okay. And in fact, three of the four managers said it was okay to wear scarves. So why would she suspect that if she is qualified and has the personality they're looking for and is dressed appropriately, that this company would fail to hire her because they refuse to accommodate her religious belief? Justice Sonomaeor, she asked a friend who in turn asked an app, another Abercrombie employee who was not involved in the hiring process. And even the advice that was... I think it was a store manager. But a store manager who was not involved in this hiring process. She had an opportunity before Miss Cook, who interviewed her, to ask any questions about the look policy after Miss Cook described the look policy at the interview. Did not mention the headscarf. Did not mention the headscarf. These Abercrombie interviews, in addition to being group interviews, are scripted interviews in which the showman were in the script because I remember reading this and she, in fact, said we don't discuss the look policy at the interview. If you look at Joint Appendix 33, and Joint Appendix 100 to 101, that's Cook's testimony that she read a summary of the look policy and gave Miss Elaffee opportunity to ask any questions. But there was no head mention of the headscarf in what she read. It did not specifically mention the headscarf, however, it described the look policy in general. Miss Elaff knew before it was a matter of common sense that Abercrombie requires their employees to wear clothes that look like Abercrombie style. So let's say somebody comes in for an interview and this person has the look

. The employer has not given her notice of this look policy. So how is she supposed to intrude the question that, as far as all of the appearances go, it's fine. She's wearing a headscarf. There's no look policy that the employee knows that's violated. Just to Ginsburg, I respectfully disagree with that characterization of what went on here. But Ms. Eeroff knew enough about Abercrombie to understand that it had a dress code. No enough about Abercrombie to ask in advance. You testified she knew they had a dress code? I was not aware of that. She testified that she knew that she would have to wear Abercrombie-style clothes that's joined Appendix 23. She knew that Abercrombie did not sell headscarf. And she did, in fact, she came in with an Abercrombie-type shirt, right? She did, but she also knew that Abercrombie did not sell headscarves. That's a join Appendix 37 to 38. But she had asked a friend to work for Abercrombie whether the headscarf was a problem. And the friend said, no, if it's not black, it should be okay. And in fact, three of the four managers said it was okay to wear scarves. So why would she suspect that if she is qualified and has the personality they're looking for and is dressed appropriately, that this company would fail to hire her because they refuse to accommodate her religious belief? Justice Sonomaeor, she asked a friend who in turn asked an app, another Abercrombie employee who was not involved in the hiring process. And even the advice that was... I think it was a store manager. But a store manager who was not involved in this hiring process. She had an opportunity before Miss Cook, who interviewed her, to ask any questions about the look policy after Miss Cook described the look policy at the interview. Did not mention the headscarf. Did not mention the headscarf. These Abercrombie interviews, in addition to being group interviews, are scripted interviews in which the showman were in the script because I remember reading this and she, in fact, said we don't discuss the look policy at the interview. If you look at Joint Appendix 33, and Joint Appendix 100 to 101, that's Cook's testimony that she read a summary of the look policy and gave Miss Elaffee opportunity to ask any questions. But there was no head mention of the headscarf in what she read. It did not specifically mention the headscarf, however, it described the look policy in general. Miss Elaff knew before it was a matter of common sense that Abercrombie requires their employees to wear clothes that look like Abercrombie style. So let's say somebody comes in for an interview and this person has the look. If you wanted to draw the person who has the look, this is the person who has the look. It looks just like this mythical preppy or somebody who came off the beach and now for you, only one problem. The person is wearing a black blouse, which is against the Abercrombie rules. Now would Abercrombie fire that, not hire that person? On the assumption that this person likes black so much, this person is going to wear black every single day. I don't think Abercrombie needs to make that assumption about what the person will do later in order to make a judgment based on the person's appearance at the interview. If I walked into an Abercrombie interview wearing a suit, presumably Abercrombie could tell me, when you come to work, please don't wear the suit, please wear our clothes. But it would also be equally rational for Abercrombie to say, you know, if this person is coming in wearing a suit, that's not compatible with our style. And likewise for the headscarf, Johnson's testimony, which the EOC didn't challenge, is that he would have taken the same action for somebody who came into an interview wearing a headscarf, a baseball cap, a helmet, or another religious symbol. Or in Ornamata, he said specifically, somebody comes in and flies for a job with an Ornamata, no questions asked, that by later on the policy. That was his testimony. That's right. And what that shows is that religion is not the basis for the action here, rather Abercrombie at most, was completely indifferent to him. No, but that doesn't work in a case like this. It's not a question, are you treating everybody the same? Do you have an obligation to accommodate people with a particular religious practice or a belief? So keep constantly saying, oh, we would have treated somebody with a baseball cap the same way, it doesn't seem to me as very responsive. Mr. Chief Justice, for purposes of an intentional discrimination claim, it does matter that you would treat everybody the same. And that's the theory that the EOC is pursuing here. But I don't know, but as I understand it, it's intentional discrimination because you fail to accommodate. And I would submit that that is an incomprehensible understanding of what intentional discrimination means, intentional discrimination. Yeah, and how we get into all that, if you want to add something to it, it seems we're in a kind of minutiae. What's wrong with saying, if he correctly believes that he's religious and needs accommodation, fine, that's the end of it. You're in the statute and proven excuse. Well, correct belief will arise in a thousand contexts. Did he correctly believe that the drug that was being sold, that white powder was heroin? Did the manager whom you're trying to fire and is saying, did he correctly believe that it didn't pay enough for a college graduate? Did he correctly believe that this applicant graduated from Princeton? Did he correctly believe that he had authority under the delegation of agency to sign a check? I mean, look, there are thousands of things. What's, why is it our job here to say what the right way of proving correct belief is? I mean, I think we can say say it's something wrong. You don't have to formulate your correct belief just because she told you. I mean, you can argue that one. That's the only way to prove it. And I'll open to that argument. I'd like to hear it. But once we're beyond that, if I'm right, that that isn't the only way you can prove correct belief

. If you wanted to draw the person who has the look, this is the person who has the look. It looks just like this mythical preppy or somebody who came off the beach and now for you, only one problem. The person is wearing a black blouse, which is against the Abercrombie rules. Now would Abercrombie fire that, not hire that person? On the assumption that this person likes black so much, this person is going to wear black every single day. I don't think Abercrombie needs to make that assumption about what the person will do later in order to make a judgment based on the person's appearance at the interview. If I walked into an Abercrombie interview wearing a suit, presumably Abercrombie could tell me, when you come to work, please don't wear the suit, please wear our clothes. But it would also be equally rational for Abercrombie to say, you know, if this person is coming in wearing a suit, that's not compatible with our style. And likewise for the headscarf, Johnson's testimony, which the EOC didn't challenge, is that he would have taken the same action for somebody who came into an interview wearing a headscarf, a baseball cap, a helmet, or another religious symbol. Or in Ornamata, he said specifically, somebody comes in and flies for a job with an Ornamata, no questions asked, that by later on the policy. That was his testimony. That's right. And what that shows is that religion is not the basis for the action here, rather Abercrombie at most, was completely indifferent to him. No, but that doesn't work in a case like this. It's not a question, are you treating everybody the same? Do you have an obligation to accommodate people with a particular religious practice or a belief? So keep constantly saying, oh, we would have treated somebody with a baseball cap the same way, it doesn't seem to me as very responsive. Mr. Chief Justice, for purposes of an intentional discrimination claim, it does matter that you would treat everybody the same. And that's the theory that the EOC is pursuing here. But I don't know, but as I understand it, it's intentional discrimination because you fail to accommodate. And I would submit that that is an incomprehensible understanding of what intentional discrimination means, intentional discrimination. Yeah, and how we get into all that, if you want to add something to it, it seems we're in a kind of minutiae. What's wrong with saying, if he correctly believes that he's religious and needs accommodation, fine, that's the end of it. You're in the statute and proven excuse. Well, correct belief will arise in a thousand contexts. Did he correctly believe that the drug that was being sold, that white powder was heroin? Did the manager whom you're trying to fire and is saying, did he correctly believe that it didn't pay enough for a college graduate? Did he correctly believe that this applicant graduated from Princeton? Did he correctly believe that he had authority under the delegation of agency to sign a check? I mean, look, there are thousands of things. What's, why is it our job here to say what the right way of proving correct belief is? I mean, I think we can say say it's something wrong. You don't have to formulate your correct belief just because she told you. I mean, you can argue that one. That's the only way to prove it. And I'll open to that argument. I'd like to hear it. But once we're beyond that, if I'm right, that that isn't the only way you can prove correct belief. Why do we have to say? Because your honor in this particular context, having a standard like correct belief or suspecting a possible conflict will inevitably lead employers to- So I'm with you with respect. Well, that is suspect- I'm with you only where they correctly believe that, darada, or understand darada. Or no. Those three things seem good enough to me. Now, I've repeated this three times, but I want to hear the answer why they're not good enough. The reason they're not just as prior to the reason that they're not good enough is that there is no way that the employer can know about a religious practice, unless it either- unless it is- that information is traceable to the employee. And having that kind of a correct belief standard will inevitably lead employers to stereotype because a fact finder might later find that- Well, isn't that- Isn't that what Ms. Cook says she did? She said she saw her in a scarf and that she assumed that it was worn because of religious beliefs. So she acted on a stereotype that some, I guess, that if you wear a black scarf, it's because of her religious belief. Your Honor, I don't believe that she acted on that stereotype. I believe that Johnson instructed her not to hire Ms. Elow because she was non-compliant with the look policy. No. He hired her because the look didn't hire her because under the look policy he believed you could not accommodate that religious belief. I think that- The reason why she hired her joined appendix 134 is that she simply was not compliant with the look policy. Okay, so I- the traceable, maybe you've got to be sort of interested in this, it says to me, when you mean traceable to the woman, I mean at least- I guess- Well, I- It's pretty hard to think of a case where it wouldn't be. I mean, I guess I could imagine a case that he found out about this woman from an FBI agent who was making it up. But I mean- That just seems very, very unlikely. The case that the government gives as an example is one which an employer learned of an applicant's religious practice from the applicant's reference who was the applicant. And the applicant's reference didn't know the applicant? The applicant's reference did know the applicant. And so that is traceable to the applicant. But the problem with the problem with the... What's the difference in your... I mean, I'm a little... I'm still very confused

. Why do we have to say? Because your honor in this particular context, having a standard like correct belief or suspecting a possible conflict will inevitably lead employers to- So I'm with you with respect. Well, that is suspect- I'm with you only where they correctly believe that, darada, or understand darada. Or no. Those three things seem good enough to me. Now, I've repeated this three times, but I want to hear the answer why they're not good enough. The reason they're not just as prior to the reason that they're not good enough is that there is no way that the employer can know about a religious practice, unless it either- unless it is- that information is traceable to the employee. And having that kind of a correct belief standard will inevitably lead employers to stereotype because a fact finder might later find that- Well, isn't that- Isn't that what Ms. Cook says she did? She said she saw her in a scarf and that she assumed that it was worn because of religious beliefs. So she acted on a stereotype that some, I guess, that if you wear a black scarf, it's because of her religious belief. Your Honor, I don't believe that she acted on that stereotype. I believe that Johnson instructed her not to hire Ms. Elow because she was non-compliant with the look policy. No. He hired her because the look didn't hire her because under the look policy he believed you could not accommodate that religious belief. I think that- The reason why she hired her joined appendix 134 is that she simply was not compliant with the look policy. Okay, so I- the traceable, maybe you've got to be sort of interested in this, it says to me, when you mean traceable to the woman, I mean at least- I guess- Well, I- It's pretty hard to think of a case where it wouldn't be. I mean, I guess I could imagine a case that he found out about this woman from an FBI agent who was making it up. But I mean- That just seems very, very unlikely. The case that the government gives as an example is one which an employer learned of an applicant's religious practice from the applicant's reference who was the applicant. And the applicant's reference didn't know the applicant? The applicant's reference did know the applicant. And so that is traceable to the applicant. But the problem with the problem with the... What's the difference in your... I mean, I'm a little... I'm still very confused. You don't think that there could ever be discrimination based on a general neutral policy. Because what does it matter if she told him that this was because of religious belief? If he's only firing her or not hiring her because of the look policy, then he hasn't discriminated. No, Your Honor, if she had told him this is for religious belief, and I need an accommodation from the look policy, at that point under the statute, there would be a duty to accommodate. But the question here is, I am so totally confused. So he hears it from Miss Cook. And that's not enough. That's right, because Miss Cook herself testified that she did not know that Miss E. Off wore the headscarf for religious reasons. What we want to avoid is a rule that leads employers in order to avoid liability to start stereotyping about whether they think, guess, or suspect that somebody is doing something for religious beliefs. So all they have to do is say, this is what our look policy is. Do you have any problem with it? I just, this will lead up pointed out a while back. Don't have to probe anything about religion. I thought Miss was his name Johnson, but he said, I would do the same thing with a man who came in with the Amica. So the man who came in with the Amica, the same treatment. Sorry, I was, I was, Miss Cook, I would want to hire you, but I can't. That was the answer that he gave. So there's no difference between the headscarf or the Amica or the Sikh turban in Mr Johnson's view. That's right. And to answer your question about why the employer can't just disclose the policy, that isn't a solution because that is asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice. Is there going to be a requirement for the job then doesn't the employer have an obligation to tell the employee what the job requirements are? No, you're on or not under Title VII. Title VII is not a civil service statute that requires applicants or employees who violate workplace rules to be given a chance to explain themselves and told all of the requirements before adverse action is taken against. This is what I don't understand in a better position with respect to this particular case. As I understand it, Abercrombie does not have a policy that the, that an interviewee must comply with the look policies. Is that correct? The look policy itself does not apply at the interview. It's easy to do. So what, there would be no reason for not hiring the individual involved here, unless you assumed that she was going to wear a scarf every day. Just because she wore a head scarf on that one day wouldn't mean that she necessarily was going to wear it every day. Every day she might, maybe she's just having a bad hair day. So she comes in with a head scarf. But she doesn't have any religious reason for doing it. Would you reject her for that? No

. You don't think that there could ever be discrimination based on a general neutral policy. Because what does it matter if she told him that this was because of religious belief? If he's only firing her or not hiring her because of the look policy, then he hasn't discriminated. No, Your Honor, if she had told him this is for religious belief, and I need an accommodation from the look policy, at that point under the statute, there would be a duty to accommodate. But the question here is, I am so totally confused. So he hears it from Miss Cook. And that's not enough. That's right, because Miss Cook herself testified that she did not know that Miss E. Off wore the headscarf for religious reasons. What we want to avoid is a rule that leads employers in order to avoid liability to start stereotyping about whether they think, guess, or suspect that somebody is doing something for religious beliefs. So all they have to do is say, this is what our look policy is. Do you have any problem with it? I just, this will lead up pointed out a while back. Don't have to probe anything about religion. I thought Miss was his name Johnson, but he said, I would do the same thing with a man who came in with the Amica. So the man who came in with the Amica, the same treatment. Sorry, I was, I was, Miss Cook, I would want to hire you, but I can't. That was the answer that he gave. So there's no difference between the headscarf or the Amica or the Sikh turban in Mr Johnson's view. That's right. And to answer your question about why the employer can't just disclose the policy, that isn't a solution because that is asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice. Is there going to be a requirement for the job then doesn't the employer have an obligation to tell the employee what the job requirements are? No, you're on or not under Title VII. Title VII is not a civil service statute that requires applicants or employees who violate workplace rules to be given a chance to explain themselves and told all of the requirements before adverse action is taken against. This is what I don't understand in a better position with respect to this particular case. As I understand it, Abercrombie does not have a policy that the, that an interviewee must comply with the look policies. Is that correct? The look policy itself does not apply at the interview. It's easy to do. So what, there would be no reason for not hiring the individual involved here, unless you assumed that she was going to wear a scarf every day. Just because she wore a head scarf on that one day wouldn't mean that she necessarily was going to wear it every day. Every day she might, maybe she's just having a bad hair day. So she comes in with a head scarf. But she doesn't have any religious reason for doing it. Would you reject her for that? No. The reason that she was rejected was because you assumed she was going to do this every day. And the only reason why she would do it every day is because she had a religious reason. Justice Alito, that has not been the EEOC's theory of this case. And if it had been, there would have been ways that they could have tried to prove that. They could have questioned Johnson specifically about that. What would he have done if somebody had come in wearing a ball cap? They could have tried to get comparator evidence about what would have happened when people came in wearing non-religious headwear. And so the EEOC's theory, which it had every opportunity to prove, has not been that Johnson... Well, we may ask anything about non-religious. This Title VII doesn't require accommodating baseball caps, but it does require accommodating to religious practices. So the employer is not, as I said before, not just a candidate of a basis of religion. But if there's a religious practice, I must accommodate it. That's a discreet requirement. The premise of Justice Alito's question, as I understood it, is that Abercrombie only didn't hire this person because the headscarf was religious. And what I'm suggesting is, Abercrombie might well not have hired anybody who walked in wearing any head covering. And so if the EEOC had wanted to prove the role of assumptions about religion... So why would that be so when you just said they don't require people at the interview stage to conform to the look of the analysis? On its face, the look policy itself does not require that, but Johnson, the decision maker here, in effect, was judging people. You were about to tell us what the EEOC's theory of the case was. I was eager to hear that. Could you tell us? You think their theory of the case was. I think their theory of the case was that there was a duty to accommodate a religious practice. Any time an employer has a correct understanding or a suspicion of that practice. The theory has not been that Abercrombie acted based on assumptions about Miss Elow's religion. And I think one way in which we know that is, let's assume that the look policy did apply at the interview. Under the EEOC's theory, if an interviewer suspected that the applicant or correctly understood as Justice Breyer prefers, correctly understood that the applicant wore the headscarf for religious purposes, at that point there would be a duty to accommodate. Regardless of whether Abercrombie did or did not make any assumptions about future compliance, if the look policy applied at the interview, there would be a duty to accommodate upon that correct understanding at the interview. The problem with that rule is that employers in order to protect themselves in the future from having a jury find that they must have correctly understood that a particular. So what's the difference between that and having notes? I don't understand what you're about to say

. The reason that she was rejected was because you assumed she was going to do this every day. And the only reason why she would do it every day is because she had a religious reason. Justice Alito, that has not been the EEOC's theory of this case. And if it had been, there would have been ways that they could have tried to prove that. They could have questioned Johnson specifically about that. What would he have done if somebody had come in wearing a ball cap? They could have tried to get comparator evidence about what would have happened when people came in wearing non-religious headwear. And so the EEOC's theory, which it had every opportunity to prove, has not been that Johnson... Well, we may ask anything about non-religious. This Title VII doesn't require accommodating baseball caps, but it does require accommodating to religious practices. So the employer is not, as I said before, not just a candidate of a basis of religion. But if there's a religious practice, I must accommodate it. That's a discreet requirement. The premise of Justice Alito's question, as I understood it, is that Abercrombie only didn't hire this person because the headscarf was religious. And what I'm suggesting is, Abercrombie might well not have hired anybody who walked in wearing any head covering. And so if the EEOC had wanted to prove the role of assumptions about religion... So why would that be so when you just said they don't require people at the interview stage to conform to the look of the analysis? On its face, the look policy itself does not require that, but Johnson, the decision maker here, in effect, was judging people. You were about to tell us what the EEOC's theory of the case was. I was eager to hear that. Could you tell us? You think their theory of the case was. I think their theory of the case was that there was a duty to accommodate a religious practice. Any time an employer has a correct understanding or a suspicion of that practice. The theory has not been that Abercrombie acted based on assumptions about Miss Elow's religion. And I think one way in which we know that is, let's assume that the look policy did apply at the interview. Under the EEOC's theory, if an interviewer suspected that the applicant or correctly understood as Justice Breyer prefers, correctly understood that the applicant wore the headscarf for religious purposes, at that point there would be a duty to accommodate. Regardless of whether Abercrombie did or did not make any assumptions about future compliance, if the look policy applied at the interview, there would be a duty to accommodate upon that correct understanding at the interview. The problem with that rule is that employers in order to protect themselves in the future from having a jury find that they must have correctly understood that a particular. So what's the difference between that and having notes? I don't understand what you're about to say. Would you finish your thought? The only way that employers can protect themselves under the EEOC's approach is by training their managers to stereotype about possible religious beliefs, because a judge or jury might later find that Abercrombie or an employer correctly understood or must have correctly understood under an objective test, which they don't display and they're a meeky. But you were essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation. To ask some questions, now people can disagree about whether one can ask those questions in a way that's awkward at all, but you're saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But this alternative to that rule is a rule where Abercrombie just gets to say, we're going to stereotype people and prevent them from getting jobs. We'll never have the awkward conversation because we're just going to cut these people out and make sure that they never become Abercrombie employees. Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem? Justice Kagan, the problem is not having awkward conversations. The problem is that the EOC's rule would lead employers to treat people differently based on their religion, which is precisely the opposite of what Title VII wants to be. Title VII requires them to treat people who have religious practice differently. They don't have to accommodate a baseball cap. They do have to accommodate Ayamaka. But Title VII requires that only after, as the EOC has said for 40 years, only after the employee or applicant places religion on the table. Title VII does not want employers to be making those judgments before the employee raises the issue. And the concern that the EOC raises here that we're going to have applicants who are completely in the dark about work policies has not been borne out by people. I thought, is this right? I think your argument. Your argument is it may sound odd to want a special rule as to when you have belief or so forth. But for administrative reasons, we have to have it. There are millions of people who are practicing one religion or another. Well, you've got a clue of that from their name or maybe their dress or whatever it is. And whenever we have such a person applying, if she doesn't say anything or he doesn't say anything and we don't hire them or we don't do it, we're going to get sued. And we don't want all those lawsuits and it isn't that big a burden to say to the person who wants the accommodation, tell us. We get into some administrative rule about how to elicit it from her without that simple rule, tell us, we're going to be in a real administrative rat-mass getting sued left, right, and center. Have I got the essence of the argument? That's right. And even asking the neutral sounding sort of question, can you comply with the work rule? Even that is treating applicants differently based on, oh, that isn't the end of the world, perhaps, but you would say, look, we have thousands of managers and goodness knows they're going to get start getting resentful and da-da-da-da-da-da. I mean, I just want to be sure I've got the argument. That is the essence of it. But part of the reason that I think this is very significant is that under the E or C's own regulation, if the applicant, if the employer asks the neutral sounding question and then chooses not to hire the person for a reason completely unrelated to religion, the E or C will infer that there was this crime. And this is such an unusual case because it's very rare that you have a interviewer like Miss Cook, who's honest. And the only reason there was a suit here was because she was honest and came in and told someone else. But if this young woman wasn't about to sue until she heard this information, those people don't presume they're not hired because of some religious practice. But if you have a policy that conflicts with your religious practice and the person knows you're going to wear a Yamaka, then you might get sued. Your Honor, I think many, if not almost all Title VII cases, do originate without any sort of admission by the employer about what the reason was for not hiring the individual

. Would you finish your thought? The only way that employers can protect themselves under the EEOC's approach is by training their managers to stereotype about possible religious beliefs, because a judge or jury might later find that Abercrombie or an employer correctly understood or must have correctly understood under an objective test, which they don't display and they're a meeky. But you were essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation. To ask some questions, now people can disagree about whether one can ask those questions in a way that's awkward at all, but you're saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But this alternative to that rule is a rule where Abercrombie just gets to say, we're going to stereotype people and prevent them from getting jobs. We'll never have the awkward conversation because we're just going to cut these people out and make sure that they never become Abercrombie employees. Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem? Justice Kagan, the problem is not having awkward conversations. The problem is that the EOC's rule would lead employers to treat people differently based on their religion, which is precisely the opposite of what Title VII wants to be. Title VII requires them to treat people who have religious practice differently. They don't have to accommodate a baseball cap. They do have to accommodate Ayamaka. But Title VII requires that only after, as the EOC has said for 40 years, only after the employee or applicant places religion on the table. Title VII does not want employers to be making those judgments before the employee raises the issue. And the concern that the EOC raises here that we're going to have applicants who are completely in the dark about work policies has not been borne out by people. I thought, is this right? I think your argument. Your argument is it may sound odd to want a special rule as to when you have belief or so forth. But for administrative reasons, we have to have it. There are millions of people who are practicing one religion or another. Well, you've got a clue of that from their name or maybe their dress or whatever it is. And whenever we have such a person applying, if she doesn't say anything or he doesn't say anything and we don't hire them or we don't do it, we're going to get sued. And we don't want all those lawsuits and it isn't that big a burden to say to the person who wants the accommodation, tell us. We get into some administrative rule about how to elicit it from her without that simple rule, tell us, we're going to be in a real administrative rat-mass getting sued left, right, and center. Have I got the essence of the argument? That's right. And even asking the neutral sounding sort of question, can you comply with the work rule? Even that is treating applicants differently based on, oh, that isn't the end of the world, perhaps, but you would say, look, we have thousands of managers and goodness knows they're going to get start getting resentful and da-da-da-da-da-da. I mean, I just want to be sure I've got the argument. That is the essence of it. But part of the reason that I think this is very significant is that under the E or C's own regulation, if the applicant, if the employer asks the neutral sounding question and then chooses not to hire the person for a reason completely unrelated to religion, the E or C will infer that there was this crime. And this is such an unusual case because it's very rare that you have a interviewer like Miss Cook, who's honest. And the only reason there was a suit here was because she was honest and came in and told someone else. But if this young woman wasn't about to sue until she heard this information, those people don't presume they're not hired because of some religious practice. But if you have a policy that conflicts with your religious practice and the person knows you're going to wear a Yamaka, then you might get sued. Your Honor, I think many, if not almost all Title VII cases, do originate without any sort of admission by the employer about what the reason was for not hiring the individual. And I think that the rule that places a burden on employers to spare you type and to raise these sorts of issues is one that will undermine the purposes of Title VII. Thank you, Counsel. Mr. Gershengorn, you have five minutes left. Thank you, Mr. Chief Justice. I'd like to make just two quick factual points to clear up what I said to be some confusion in the record. First of all, there was some discussion about whether, in fact, you needed to comply with the look policy. I point the court to 94a, which the district court says, 94a of the petition appendix. The policy applies to all store employees, but applicants are not required to be in compliance at the time of the interview. There was some question about whether cook knew or didn't know about the headscarf. It is crystal clear that she did not know. The district court said it is undisputed. I'm sorry that Eloft did or did not know. It is undisputed. This is at 97a of the court's opinion. It is undisputed that cook did not tell her that Abercrombie would not permit models to wear headscarf or to wear a black clothing. The look policy script should the court wish to look at it is plain to exhibit four in the trial. It quotes what the look policy is. I will caution that it is not in the summary judgment record. It was admitted in the damages trial, but the look policy is there and consistent with all of the testimony, it does not mention headscarfs. You might say a word about what I called his administrative argument. So, Your Honor, I would. I think the administrative argument actually cuts in our sense, in our favor, in a couple of ways. First of all, the suggestion that there are practical problems isn't plausible. This has been the rule for two decades. The ninth circuit, the third circuit, the seventh circuit. Everybody is applying the same test. It is the tenth circuit that for the first time has imposed these two new requirements. Second, I don't think it is an administeral for exactly the reasons we talked about in my first time up here. An employer can structure an interview to make sure the critical rules are followed

. And I think that the rule that places a burden on employers to spare you type and to raise these sorts of issues is one that will undermine the purposes of Title VII. Thank you, Counsel. Mr. Gershengorn, you have five minutes left. Thank you, Mr. Chief Justice. I'd like to make just two quick factual points to clear up what I said to be some confusion in the record. First of all, there was some discussion about whether, in fact, you needed to comply with the look policy. I point the court to 94a, which the district court says, 94a of the petition appendix. The policy applies to all store employees, but applicants are not required to be in compliance at the time of the interview. There was some question about whether cook knew or didn't know about the headscarf. It is crystal clear that she did not know. The district court said it is undisputed. I'm sorry that Eloft did or did not know. It is undisputed. This is at 97a of the court's opinion. It is undisputed that cook did not tell her that Abercrombie would not permit models to wear headscarf or to wear a black clothing. The look policy script should the court wish to look at it is plain to exhibit four in the trial. It quotes what the look policy is. I will caution that it is not in the summary judgment record. It was admitted in the damages trial, but the look policy is there and consistent with all of the testimony, it does not mention headscarfs. You might say a word about what I called his administrative argument. So, Your Honor, I would. I think the administrative argument actually cuts in our sense, in our favor, in a couple of ways. First of all, the suggestion that there are practical problems isn't plausible. This has been the rule for two decades. The ninth circuit, the third circuit, the seventh circuit. Everybody is applying the same test. It is the tenth circuit that for the first time has imposed these two new requirements. Second, I don't think it is an administeral for exactly the reasons we talked about in my first time up here. An employer can structure an interview to make sure the critical rules are followed. And the employer, if it wants, can make no assumptions about religion. Justice Sir, if I could pick up on your point, I think what is important about this case and why we think it is important is precisely that it is unusual. What is unusual is that the applicant found out why she was not hired. And that is what's strange. Most of the time, the person just never finds out that no accommodation was made, that the employer assumed the accommodation would be needed and just never told. And it is precisely why we were not alone. And a lawsuit, of course. It doesn't, Your Honor, get the answer. And then find out in the case. They certainly could. And it happens often, doesn't it? No, Your Honor, I'm not sure that it does. And I think this is what makes this a very important case. It's because most applicants, unlike employees, who are in a position to go back and forth with their employer and understand the work rules, applicants are in a serious information of disadvantage. They don't know the work rules. And in this case, it is undisputed that she did not. And if I could just close them picking up on something Justice Kagan was pointing out, that the background rule in Title VII is that belief is sufficient. But what makes this case, we've been particularly strong, is that this is belief plus an assumption that where they acted on that belief and they assumed that she would need an accommodation from the work rule. That is certainly sufficient and the 10th Circuit was wrong to conclude otherwise. Thank you, Your Honor. Thank you, Council. The case is submitted.

We are arguing in first this morning in case 1486 the Equal Employment Opportunity Commission versus Abercrombie and Fitch stores. Mr. Bush and Gorn? Mr. Chief Justice, and may it please the court. The 10th Circuit imposed two requirements on religious accommodation claims that eliminated liability for respondents' refusal to accommodate Miss Elowf here. First, that the applicant herself verbally requests the accommodation, and second, that the employer know rather than just correctly understand the need for an accommodation. Neither requirement is sent. What is it doing between knowing and correctly understanding? Your Honor, the testimony, it's a fair question. The 10th Circuit perceived a difference. What the testimony was was that Miss Cook assumed that Miss Elowf needed to wear the headscarf because she was religious, that she figured that the headscarf signified that it was a religious headscarf, and that she figured it was a religious headscarf. What the 10th Circuit said was that was insufficient. What was needed was actual knowledge. Our position is that when you figure, when you assume, when it signifies to you that a religious accommodation is needed, that is sufficient notice for an employer to be on notice. Does that subjectiv- I'm sorry.- Does that subjectiv- Or is it even relevant? Meaning the issue is whether they fail to hire her because of a religious practice. Whether the person thinks it is- Is the issue. That's why they act it. That's right, Your Honor. We think that's what makes this a particularly straightforward case. What the employer did here was act upon the assumption that Miss Elowf needed to wear the headscarf for religious reasons, and yet that later claims refuge that it didn't have sufficient knowledge or certainty to actually have initiated the accommodation process that Congress wanted in Section 2000 East. Any back to the Justice Scalia question. I think there's substantial force to your argument that the employee doesn't have to mention this first. But why do we import the term understand instead of know? In a treatment case, the whole idea is that the prohibited action was taken because of religion. Well, you knew. Why are you making it so confusing? Your Honor, with respect, it's our position. It's the tense circuit that's made it's confusing. What the tense circuit has done is said, when you know- Your position that you- Your statement that you opened with it says that he must understand. You stay away from the word now, Justice Scalia. What- What- Why you did that? And I can't understand your answer. So the answer, Your Honor, is we think that there is sufficient knowledge notice when somebody understands that- when somebody assumes that a practice is religious and then acts upon it, that that is sufficient. What the tense circuit said was that is not sufficient, that what is needed is something more approaching certainty. So that does raise the question, if yours is less than certainty, how much less than certainty is it? I mean, suppose I'm an employer and I say, you know, I don't honestly know. I think, you know, it's two out of three. Is that sufficient? So, Your Honor, I think that if I could explain how these cases come up, I think it will- the best way to answer your- there would be the best way to answer your question. The answer is- in a situation like this in which it's an applicant applying for a- position and the employer suspects things two-thirds that there's a religious problem, the- a religious conflict. The employer has two options. It can assume there is no conflict, in which case they make the hiring decision on the merits. In that case here, Ms. Elaufe would have been hired. Alternatively, if the employer feels like there's enough concern to- about how Ms. Elaufe would be able to perform, they can start a dialogue. That's what Congress intended. What they can't do is what they did here and assume through a stereotype that there was going to be a need for accommodation. And then say, having assumed that, I don't have any obligation to actually try to accommodate- Is that true, even- Go ahead. Is that true, even if it's under 50 percent? Another word say the employer says, you know, I really don't know, but I think that there's like a 50-50 chance or even a 40 percent chance that this person has a religious, this practice is religious, and I don't really feel like getting into all this accommodation stuff, so I'm not going to hire this person. So I think you're on of that, that's what they cannot do. But I do think- So it doesn't really depend on what the percentage chance is. So I think that I- The certain, it could be less than certain, it could be a lot less than certain. As long as the employer says, there's some chance, and I'm not going to hire or promote a fire or whatever, because of that chance. So your honor, I would like to try to separate out two different situations that could arise, only one of which we think arises commonly. One is that the employer has a work rule and is concerned that the applicant before won't be able to comply in the future with the- after being hired, with the work rule, because they perceive that the person is religious. I think the dilemma that your honor is posing is really a false one there. If the employer really has a very small understanding or thinks it's very unlikely that the employer will be religious, the right thing for the employer to do is to assume that there isn't a religious problem, to not engage in the stereotyping, and assume that the person could comply as they would with somebody who was wearing a headscarf or something else for not- I'm not sure I understand why you're fighting Justice Kagan's question. Isn't the issue the reason that they acted? They refused to hire someone because they had a 1% belief that they had a religious pardon upon a religious belief that they wouldn't accommodate. So, Your Honor, I don't intend to fight Justice Kagan's hypothetical. And on the facts of this case, I think it's really quite easy. But the reason why I'm trying to separate the two is because I think the situation here is the easy case, and I'll get to why the hard case and why I'm sort of fighting Justice Kagan's fight for the- You're just confusing me enormously. Would you tell me what it is you want? I mean, you just say he understands. That doesn't do anything for me. What he understands, knows, believes, suspects, what other words do you need? So, Your Honor, the test that the courts of appeals have adopted for more than two decades, which is the test that we ask this Court to adopt, is that the employer needs sufficient information from any source about the employee, about the applicant's religious needs, that to permit the employer to understand the existence of a conist. That's the test that the courts of appeals have been- I know, I know, I know, I know what they think is. That makes sense to me. But Your Honor, the reason why I think it makes sense in this case is because if it's sufficient knowledge for you to actually act upon it. Remember, if they- if the critical point here for us is if they had not- if the employer had not assumed that this was religious, had not believed it, they would have hired her. The default rule for I'm not sure is higher. Mr. Gerson? The first one, the person responsible for hiring, didn't she say to the district manager, I think she's wearing this headscarf for religious reasons. And that's why I'm checking it out with you. The answer she got back was, it doesn't matter whether it's religious reasons. We don't accommodate people who wear headscoffs. That's right, Your Honor. So it seems that the district manager is- his point of view is headscoffs are out. This particular woman was wearing one for religious reasons, but it doesn't matter what reason. We don't accommodate headscoffs. I think that's right, Your Honor. And that's exactly what Congress said when it enacted these provisions that if you didn't want to happen. There's no law against such a rule. Any employer can have a rule. We don't allow headscarves. And until someone applies for a job who for a religious reason wants to wear a headscarf. And the employer knows that it's for a religious reason or suspects or believes or understands whatever verbs you want to use. There's been no violation of the law. You can have that rule. Absolutely. We do not allow our employees to wear headscars. Nothing wrong with that rule. That's correct, Your Honor. But once- So the main fact that this supervisor said that doesn't prove a violation by the employer. Well, I don't agree with that, Your Honor. I think once it's clear that the employee needs an accommodation of that rule, that's exactly what Title VII requires. That's what the Court addressed in Hartison. It was a neutral rule that you had to work on the Sabbath. That's right. But that's a- That supervisor did not have that knowledge. Oh, no, Your Honor. That's not correct. And I took from Justice Ginsburg's question that what we believe to be the case, that Cook conferred conveyed to her supervisor, Johnson, that it was for a religious reason. There's a dispute in testimony about this. But what Cook said, and remember, summary judgment has now been granted against us. So the evidence read in our favor, what Cook said was, I told Johnson that it was for religious reasons, and Johnson said, if we allow this, then someone will paint themselves green and call it a religion, we can't allow it. So the Court decides the question on the assumption that the decision-makers knew, well, and your solution that you suggested is that if there's some doubt, the employer shouldn't begin a dialogue, I think it's what you mean. But I think that may promote stereotypes to a far greater degree than what you're objecting to. And let's say you have someone of Middle Eastern appearance who shows up for the interview and with the beard. And the employer, like Abacrombian Fitch, they don't like beards. They don't want their models, as they call them, having beards. But he doesn't know if the beard is therefore a religious reason or not. So if you think it's better for him to sit there and start asking this applicant questions, you would not ask anyone else about religion, why are you wearing a beard? Is there a religious reason for that? So that seems that your solution causes more problems. So you're right. I have two responses that I'd like to say. First, I don't think it's right that the solution causes more problems, because I don't think that what Congress would have preferred is that the person not get hired than that the dialogue be begun. If those are the two options, I think it's clear Congress wanted an accommodation of the religious practice. But I also think that your honor is hypothetical, points out quite nicely that it's a somewhat artificial situation here. What the employer is saying is, I don't want a beard when the person is on the floor. But that's not a reason not to hire someone who walks in the door with a beard. The New York Yankees, for example, have for decades had a no-facial hair policy. But they don't not pursue free agents that wear beards. They assume that those free agents can shave once they get to the floor. Yes, it will for an employer to say, look, I don't want to buy into some problem with a guy who has a beard. I'm going to say, can you shave it? He's going to say no, or he's only going to shave twice a week. I mean, there's a reason we'd say, let's say, I don't care if it's religious, a religious reason or not. The guy shows up with the beard. I'm not going to hire him. So your honor, that's the hard question, I think Justice Kagan was asking. I do think that's a trickier question. If your policy is not, I have a work rule that I'm concerned you won't be able to comply with in the future. Then I think, for all the reasons I've said just far, it's all said. If the question is, when someone comes to my office with a beard and I just think they're, it's unkempt. I don't like it. I'm not going to hire them regardless of whether they could comply. I think that's the situation that presents this. Is it one third? Is it two thirds? I think that's a hard question. It's not the one presented here and quite candidly. It's not the kinds of cases that we actually see. They much more are the work rule. You could avoid those hard questions, whether it's understand, believe, suspect, by adopting the rule at the court of appeals adopted here. And that is, if you want a sue me for denying you a job for a religious reason, the burden is on you to say, I'm wearing the headscot for a religious reason or I'm wearing the beard for a religious reason. That avoids all problems. Once you notify the employer that it's for a religious reason, you got them. If the employer tell her, the employer tell her that it had this look policy. And so that headscot would violate. How could she ask for something that you didn't know the employer had such a rule? That's exactly the problem, Justice Ginsburg and Justice Scalia in response to your question. The reason that's insufficient is that it is simply not the case that respond, as Resson suggests, that the superior knowledge is with the applicant in that situation. The applicant is not on notice of what the work rules are. And indeed, in this situation, the testimony was uncontroverted that Miss Eloft did not know there was a look policy that prohibited the headscarf. Well, this is not the place to get into the facts, but I thought her friend told her to wear at least a colored scarf. So the subject came up. But actually, Justice Kennedy, we're not fact finders. No, I understand, but it's important, Your Honor, because actually that in fact supports our position, because what her friend said was, there's no problem with a headscarf, it just shouldn't be black. And so she then wore that, if anything, she was on notice that there was no problem with the headscarf. So I actually think it cuts exactly the other way. And Justice Ginsburg, to pick up on your point, what makes it particularly inappropriate, I think, to put the burden on the applicant here, is that it's the employer who gets to structure the interview. And in fact, the employer here read some version of the look policy, but did not mention the headscarfs. So actually, this was a situation in which the employer itself could have put Ilafa notice, and then it's a very different situation. If the employer says, we don't allow headscarfs, and then the employee doesn't say anything. I think that's a very different situation. To get back to my beard case, is there, if it's a someone with a Middle Eastern appearance with a beard, you want the employer to begin some kind of a dialogue. If it's somebody who's not Middle Eastern and has a beard, can the employer assume, well, I don't think that's for religious reasons. In other words, he's going to be asking religious questions of some people based on the stereotype. Why not ask about religious? Could you please answer my question, please? Sure, Your Honor. Although part of the answer is that I don't think that the employer does. As I said earlier, the right approach for the employer who really wants to avoid the subject is to assume that the person of Middle Eastern descent, just like the person not of Middle Eastern descent, has a beard for personal preference and would be happy to shave if he got the job in order to comply with the work rules. And that is what is critical for it. That is what Congress wanted to achieve. So why can't the employer just simply say, we have a look policy that doesn't permit beards? Can you comply with that, Your Honor? Absolutely, Your Honor. That's all they have to do. They're not fast about reasons or no reasons. It doesn't really matter why. Right. So I tried to make clear there are two options. One is the one I gave to the Chief Justice, which is you can assume the person doesn't work for religious reasons and then hire them. Or if you're concerned about it, you can ask a specific question. The EEOC has made clear that that is the question is supposed to be why are you wearing a beard? No, the question is we have a work rule that prohibits facial hair on the floor, on the force, on the- So that doesn't cover anything that's not immediately apparent by the appearance. You make them have a code of conduct that presumably would go through several pages. Here are all the things we require. Any problem with any of them? So Your Honor, I actually think that this is a protect- that the employer is at no risk of liability. If he asks no questions, but makes no assumptions and stereotypes. And that's why I don't think what Your Honor is hypothesizing turns out to be a problem in practice. What is going on is that in the mind-run of cases that the EEOC brings and that we see in these cases. Is you're talking about a work rule. You're talking about you must wear pants at work and the employer has a religious objection, thinks women should wear skirts. You're talking about a no-long hair policy. You're talking about groom and garb. And the concern is will you be able to comply in the future? The employer doesn't have to run down those questions. The employer can assume there's no religious problem, can avoid the stereotype. However, if the employer wishes what the court said in insomnia is that a bilateral dialogue is what Title VII is designed to accomplish. And so picking up on Justice Sotomayor's point, you could raise the policy. And this is not a crazy idea. This is what responding to you. Can I ask, can you do it? Is that the only religious preference that has to be honored? I can, but you know, really I would like not to for a religious reason. I guess I could take off my headscarf or whatnot, but it would be very inappropriate, but religiously uncomfortable. Is that it? So, are you acknowledging that the only accommodation that has to be made is an accommodation for somebody who absolutely for religious reason cannot do something? No, you're unwritten. I do not think so. But that is not what this case about. Because you can't ask that. You cannot ask. What's it you're telling them to ask? Can you do it? Oh, yes, I guess I could. But that's the exact dialogue that's supposed to happen. That's what this court said should happen. That's the bilateral dialogue. What Congress wanted when it passed a reasonable accommodation requirement is precisely for the employer and the employee or the employee. So she says yes I could. And then later says, yeah, I could, but boy, it is really uncomfortable for me to do that for religious reasons. Would she still have a lawsuit? Well, she wouldn't have a lot of what she might have. Yes, I could. Well, if she could, then she was hired. Then when she says actually now it's quite uncomfortable, that's a request for an accommodation. And she and the employer need to go into a discussion, just like you would if you said, I need this, I need this time off to attend a religious conversion ceremony, which was at issue in the Ninth Circuit case in Heller. That's just the back and forth of every day employer employee. What could the employer say? We have a policy no beards or whatever. Do you have any problem with that? Why does it have to be phrased? Could you do it? Just like do you have any problem with that? Are you willing to do it? It's a matter. I think what Title VII is about what this Court is recognizing, and what certainly the EOC is recognized, is the actual accommodation back and forth is quite a flexible process. It's designed to be collaborative. And so there isn't a fixed rule you have to phrase it this way or phrase it that way. I think the point is to initiate the dialogue. And I think had that happened here, then we would be talking about a different point in the process about whether there was a reasonable accommodation that could be done and whether it could be done without undue hardship. But that dialogue never happened here. And that is the problem with the case, as we see it. And the response that says, you switched theories in mid-screen that you started out with refusal to accommodate theory. And then you abandoned that. Is that not correct, Justice Ginsburg? From the very beginning, our theory has been that the respondent violated Title VII by refusing to accommodate Miss Elowff. That was the theory that was presented in the complaint. It's the theory we got some rejudgment and damages on. It's the theory we defended in the Court of Appeals, and it's the theory we have proceeded under on all of our cases here. There has been no switch. The phrase of religious accommodation appears 14 times in a row. So that's disparate treatment plus failure to accommodate. So they have secreted on the word disparate treatment. I'd like to, if I could avoid a yes or no and just explain our position on disparate treatment, Justice Kennedy. The phrase used in the brief was that a failure to accommodate is the kind of disparate treatment that Title VII was designed to prevent. We think that is correct and accurate. That what the Congress meant to do was put people who needed an accommodation like Miss Elowff, a headscarf accommodation, on the same footing as people who did not need to wear head gear. That is the sense in which we, this is disparate treatment. However, we recognize that the EEOC and the lower courts have used disparate treatment in another way, which is to say there's a disparate treatment way to prove discrimination or failure to accommodate theory. We did not and to highlight the difference of disparate treatment would be you allow all hats, but not religious hats. That's disparate treatment. This is, you don't allow any hats, but we want to wear a religious hat. That would be a failure to accommodate. We did not, at any point in this case, abandon or change our theory from the failure to accommodate. What the other side has done is assert not only that we did that, but we did it for some motive because we wish to avoid a 1981 A question. A question in which a no court has ever adopted their theory and which at no point in this litigation have they ever raised. Even though 1981 A was the only theory on which we could get damages in the district court, we had a damages trial in 1981 A was the only source of damages. They never raised it. Our pre-trial brief said we're proceeding under 1981 A. The district court's pre-trial order listed 1981 A. That was the best I'm sorry. Again, I'm a little confused. I didn't know. I read your complaint and it says, the respondent refused to hire Miss Elow because she wears a hoofbead and further failed to accommodate her religious belief by making an exception to the look-paw policy. I looked at your briefs. I looked at the jury charge and it seems like the two were always tied. The failure to hire was because they refused to accommodate her. That's correct, Your Honor. And that has been our theory from the very beginning. So the idea that 1981 A magically became part of this case when we mentioned the word disparate up in our opening brief is just not credible. That has been the theory. They appealed. That's where the damages were done. They never raised it on appeal. They never raised it in the class. But it's supposed they had. Their argument is that you pick damages only for intense harm. So, Your Honor, no court has ever addressed that, but our position is, and this is how the courts have uniformly applied it, that this is intentional discrimination under 1981 A. Although it's not a question that's before this court. The reason for that is 1981 A distinguishes between, and this is, I'm sorry, Your Honor, it's in the red brief on page 1A, and it's 42 U.S.C. 1981 A A. It distinguishes between unlawful intentional discrimination, not an employment practice that is unlawful because of its disparate impact. The failure to accommodate claim is neither disparate impact claim, and it is intentional discrimination for exactly the reason that Justice Sotomayor has said. It's the intentional refusal to hire because of a religious practice that you could reasonably accommodate. And this is not as the amicus, some of the amicus recipes have suggested just a disparate impact claim. I'm sorry to be up to this. I don't know why you just don't concede that that's a form of disparate treatment. Failure to accommodate is a form of disparate treatment. I don't accommodate you because of your religion, disparate treatment. So, Your Honor, as I try to suggest, I think it is a form of disparate treatment as we've used it in the act. I just want to distinguish the different theories because under a disparate treatment approach, there is a, as the lower courts have used it, you would have to show that it was because of the religious nature of the practice that you didn't accommodate. So, for example, again, that I allow hats for everyone, but not if you have a religious hat. That would be, as the lower courts have called, a conventional disparate treatment claim. If I could reserve the balance of my time. Thank you, Council. Mr. Beretsky? Mr. Chief Justice, and may it please the court. The premise of the EEOC's argument today, as I understand it, is that Abokrombi acted because of the religious basis for Ms. Elow's headscarf. That is not correct as a factual matter, and the EEOC's theory and its brief does not depend on any such assumption. The EEOC's theory and its brief is that any time an employer suspects a possible conflict or correctly understands such a conflict, at that point it is on notice and must offer a religious accommodation. And so, if you imagine a situation which is not at all on real life, you have to offer a religious accommodation if they have a reasonable basis, not to. I mean, you follow the statute. You only have to accommodate if it's not an undue burden. That's true. They always have the undue burden defense, but absent an undue burden, they must accommodate and they must depart from a religion-neutral policy based on a mere suspicion of a possible conflict. No. It's not an unbe-, we go back to their position. Well, it's very simple because you're mischaracterizing it. Their position is, if you believe that someone believed, no, were a lot of adjectives, that someone will need a religious accommodation and won't comply with your policy. Just ask them. You have just the way Justice Alito said, you know, we don't permit facial hair on the floor. You have a problem with that. Justice Alito, as an initial matter, their theory and their brief does not depend on any sort of assumption about whether the applicant would later be able to comply with the work rule or not. Under the theory expressed in their brief, even if an employer like Abercrombie had a policy in which the look policy applied at the interview, you are being assessed at the interview based on your compliance with our dress. Do you think that the employee has to say, I'm dressed the way I am for a religious reason? Not necessarily, however, the employer's knowledge has to be traced to the employee in some way. In the typical case that is going to come directly from the employee because of the individual eyes and personal nature of religion. Well, let's say four people show up for a job interview at Abercrombie. This is going to sound like a joke, but, you know, it's not. So the first is a Sikh man wearing a turban. The second is a hecidic man wearing a hat. The third is a Muslim woman wearing a knee-cob. The fourth is a Catholic man in a habit. Now, you think the employer has to, 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. First of all, you're on one aspect of your hypothetical is not a joke, and that is that many of these interviews at Abercrombie are, in fact, group interviews. And I think the re-a... Group interviews where there are multiple applicants at a time. And so I think the reality is it's a lot more difficult than the government imagines to start having these individual eyes dialogues. But going to your point about those sorts of religious outfits, one can certainly imagine cases in which it is more obvious than others that a particular garb is likely worn for religious purposes. However, I would direct the Court if I could to join appendix 130 and 131, which contained pictures of the sort of head scarf that Ms. Eelof was actually wearing in this case. Those sorts of situations where it's far more ambiguous, whether a particular outward symbol is religious in nature or not, will be far more complex. Well, that can be the case. But what I want to know the answer to the question whether the employee has to say wearing this for a religious reason, or whether you're willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes. No, Your Honor. I think there are some circumstances that you should have certainly more likely than others. But the question before the Court is to devise a rule that's going to apply across the board. Actually, I didn't think that was the question. I thought the question presented was that the tenth circuit had said, employer unless you know from the woman who is applying from the applicant, unless you receive direct explicit notice that what she wants to wear is based on religion and she wants an accommodation. Unless you receive direct explicit notice from her, your home free, do what you want. Now, in their question presented, they say in the last few words of describing it, we think that's wrong. Now, I agree that we have to say whether that's wrong and if it is wrong, it would be helpful to say what they have to do. So the SG says, here is what it is. If the employer correctly infers, correctly understands, and I would add, or correctly believes that a practice is religious and an accommodation is necessary, that's it. Then he has to accommodate unless he has one of the excuses under the statute, etc. Okay. What's wrong with that? Just a spire, I think what you've just described is a rule for all cases and it's one that is entirely unadministrable for courts, employers, and applicants alike. Is it unadministrable to say that if the employer believes, thanks. This woman is religious and needs an accommodation, and he's right. Well, do something unless you have an excuse. What, why is that unadministrable? Your Honor, I believe that's unadministrable because the EEOC does not explain what level of certainty is required for a belief versus suspecting. Oh, no, you have to prove. This is his correct. You have to prove he has a belief. Now, we probably, in 250,000 federal cases a year of those, say, 80,000 that go to trial, proving that somebody has a belief for other is probably an issue at 90 percent of them. Now, I'm making that up, that number. But nonetheless, I don't think it's uncommon in the law that you have to prove that somebody believes something. So we say, the standard of proving belief is like in any other case. I don't think this is like any other case because you're dealing with something religious belief, which is inherently personal to the individual, and to charge employers with Title 7 liability and require them to come to an understanding of whether a particular practice is religious or not. I'm just going to say, I'm just going to say, I'm just going to say, I'm just going to say, and his name is Noah Goldberg. And he looks kind of Jewish. And the employer doesn't know he's Jewish. No absolute certainty, and certainly Mr. Goldberg doesn't say anything about being Jewish, but the employer just operates on an assumption that he's Jewish, so no, he doesn't get the job. Is that a violation? That is a disparate treatment violation of Title 7. That has got to be against the law, right? It doesn't matter whether the employer, it doesn't matter whether the employer knows it to an absolute certainty, right? Absolutely, because in that situation, what's relevant is the employer's intent. If the employer intends to discriminate on the basis of religion, then that's a Title 7 violation. What's going on here, however, is that the employer seeks to apply a religion neutral dress code. Religion, according to Johnson and Tess. Title 7, you would be right if all of the Title 7 did was prevent religious discrimination. But it makes a religious practice, a refusal to accommodate a religious practice, is itself a violation of Title 7. So we have to, and that was done deliberately, was it not? So that religious practices would have to be accommodated. Yes, Your Honor, and two points in response to that, if I may. One, we're not contending that religious practices don't have to be accommodated. What we are contending as an initial matter is that an employer does not intentionally discriminate on the basis of a religious practice by enforcing a religion neutral dress code that would have been, of course, a- But the thing about my question was, is that what this statute does is to say that if you are, in fact, wearing a headscarf for religious reasons, that your neutral policy really doesn't matter. It only matters if you, there's an undue burden and you really can't make an accommodation. But except for that, it really doesn't matter. You just have to hire me, even if I'm wearing a headscarf. And so the fact that you don't know that I'm wearing a headscarf for religious reasons, that you only kind of assume that, because most people do wear headscarfs for religious reasons, it shouldn't make any more difference than in the hypothetical that I gave. You're on, on, on that logic, it also would make no difference if the employer had absolutely no idea that the headscarf was worn for religious reasons, because it would still be a religious headscarf and a religious practice, not even the EEOC is claiming that there's a duty to accommodate in that situation. And so the question before the court is, at what level of knowledge does the employer have to have before the duty to accommodate his trick? For 40 years, the EEOC's own guidance has put the burden to initiate the conversation on the employee, because only the employee knows the rule. But here, the employee had no reason to think that there was anything offensive about her dress. How can she say, by the way, I have a religious reason for wearing this headscarf, when everything from all of the appearances, the employer doesn't care, it's okay to wear her headscarf. The employer has not given her notice of this look policy. So how is she supposed to intrude the question that, as far as all of the appearances go, it's fine. She's wearing a headscarf. There's no look policy that the employee knows that's violated. Just to Ginsburg, I respectfully disagree with that characterization of what went on here. But Ms. Eeroff knew enough about Abercrombie to understand that it had a dress code. No enough about Abercrombie to ask in advance. You testified she knew they had a dress code? I was not aware of that. She testified that she knew that she would have to wear Abercrombie-style clothes that's joined Appendix 23. She knew that Abercrombie did not sell headscarf. And she did, in fact, she came in with an Abercrombie-type shirt, right? She did, but she also knew that Abercrombie did not sell headscarves. That's a join Appendix 37 to 38. But she had asked a friend to work for Abercrombie whether the headscarf was a problem. And the friend said, no, if it's not black, it should be okay. And in fact, three of the four managers said it was okay to wear scarves. So why would she suspect that if she is qualified and has the personality they're looking for and is dressed appropriately, that this company would fail to hire her because they refuse to accommodate her religious belief? Justice Sonomaeor, she asked a friend who in turn asked an app, another Abercrombie employee who was not involved in the hiring process. And even the advice that was... I think it was a store manager. But a store manager who was not involved in this hiring process. She had an opportunity before Miss Cook, who interviewed her, to ask any questions about the look policy after Miss Cook described the look policy at the interview. Did not mention the headscarf. Did not mention the headscarf. These Abercrombie interviews, in addition to being group interviews, are scripted interviews in which the showman were in the script because I remember reading this and she, in fact, said we don't discuss the look policy at the interview. If you look at Joint Appendix 33, and Joint Appendix 100 to 101, that's Cook's testimony that she read a summary of the look policy and gave Miss Elaffee opportunity to ask any questions. But there was no head mention of the headscarf in what she read. It did not specifically mention the headscarf, however, it described the look policy in general. Miss Elaff knew before it was a matter of common sense that Abercrombie requires their employees to wear clothes that look like Abercrombie style. So let's say somebody comes in for an interview and this person has the look. If you wanted to draw the person who has the look, this is the person who has the look. It looks just like this mythical preppy or somebody who came off the beach and now for you, only one problem. The person is wearing a black blouse, which is against the Abercrombie rules. Now would Abercrombie fire that, not hire that person? On the assumption that this person likes black so much, this person is going to wear black every single day. I don't think Abercrombie needs to make that assumption about what the person will do later in order to make a judgment based on the person's appearance at the interview. If I walked into an Abercrombie interview wearing a suit, presumably Abercrombie could tell me, when you come to work, please don't wear the suit, please wear our clothes. But it would also be equally rational for Abercrombie to say, you know, if this person is coming in wearing a suit, that's not compatible with our style. And likewise for the headscarf, Johnson's testimony, which the EOC didn't challenge, is that he would have taken the same action for somebody who came into an interview wearing a headscarf, a baseball cap, a helmet, or another religious symbol. Or in Ornamata, he said specifically, somebody comes in and flies for a job with an Ornamata, no questions asked, that by later on the policy. That was his testimony. That's right. And what that shows is that religion is not the basis for the action here, rather Abercrombie at most, was completely indifferent to him. No, but that doesn't work in a case like this. It's not a question, are you treating everybody the same? Do you have an obligation to accommodate people with a particular religious practice or a belief? So keep constantly saying, oh, we would have treated somebody with a baseball cap the same way, it doesn't seem to me as very responsive. Mr. Chief Justice, for purposes of an intentional discrimination claim, it does matter that you would treat everybody the same. And that's the theory that the EOC is pursuing here. But I don't know, but as I understand it, it's intentional discrimination because you fail to accommodate. And I would submit that that is an incomprehensible understanding of what intentional discrimination means, intentional discrimination. Yeah, and how we get into all that, if you want to add something to it, it seems we're in a kind of minutiae. What's wrong with saying, if he correctly believes that he's religious and needs accommodation, fine, that's the end of it. You're in the statute and proven excuse. Well, correct belief will arise in a thousand contexts. Did he correctly believe that the drug that was being sold, that white powder was heroin? Did the manager whom you're trying to fire and is saying, did he correctly believe that it didn't pay enough for a college graduate? Did he correctly believe that this applicant graduated from Princeton? Did he correctly believe that he had authority under the delegation of agency to sign a check? I mean, look, there are thousands of things. What's, why is it our job here to say what the right way of proving correct belief is? I mean, I think we can say say it's something wrong. You don't have to formulate your correct belief just because she told you. I mean, you can argue that one. That's the only way to prove it. And I'll open to that argument. I'd like to hear it. But once we're beyond that, if I'm right, that that isn't the only way you can prove correct belief. Why do we have to say? Because your honor in this particular context, having a standard like correct belief or suspecting a possible conflict will inevitably lead employers to- So I'm with you with respect. Well, that is suspect- I'm with you only where they correctly believe that, darada, or understand darada. Or no. Those three things seem good enough to me. Now, I've repeated this three times, but I want to hear the answer why they're not good enough. The reason they're not just as prior to the reason that they're not good enough is that there is no way that the employer can know about a religious practice, unless it either- unless it is- that information is traceable to the employee. And having that kind of a correct belief standard will inevitably lead employers to stereotype because a fact finder might later find that- Well, isn't that- Isn't that what Ms. Cook says she did? She said she saw her in a scarf and that she assumed that it was worn because of religious beliefs. So she acted on a stereotype that some, I guess, that if you wear a black scarf, it's because of her religious belief. Your Honor, I don't believe that she acted on that stereotype. I believe that Johnson instructed her not to hire Ms. Elow because she was non-compliant with the look policy. No. He hired her because the look didn't hire her because under the look policy he believed you could not accommodate that religious belief. I think that- The reason why she hired her joined appendix 134 is that she simply was not compliant with the look policy. Okay, so I- the traceable, maybe you've got to be sort of interested in this, it says to me, when you mean traceable to the woman, I mean at least- I guess- Well, I- It's pretty hard to think of a case where it wouldn't be. I mean, I guess I could imagine a case that he found out about this woman from an FBI agent who was making it up. But I mean- That just seems very, very unlikely. The case that the government gives as an example is one which an employer learned of an applicant's religious practice from the applicant's reference who was the applicant. And the applicant's reference didn't know the applicant? The applicant's reference did know the applicant. And so that is traceable to the applicant. But the problem with the problem with the... What's the difference in your... I mean, I'm a little... I'm still very confused. You don't think that there could ever be discrimination based on a general neutral policy. Because what does it matter if she told him that this was because of religious belief? If he's only firing her or not hiring her because of the look policy, then he hasn't discriminated. No, Your Honor, if she had told him this is for religious belief, and I need an accommodation from the look policy, at that point under the statute, there would be a duty to accommodate. But the question here is, I am so totally confused. So he hears it from Miss Cook. And that's not enough. That's right, because Miss Cook herself testified that she did not know that Miss E. Off wore the headscarf for religious reasons. What we want to avoid is a rule that leads employers in order to avoid liability to start stereotyping about whether they think, guess, or suspect that somebody is doing something for religious beliefs. So all they have to do is say, this is what our look policy is. Do you have any problem with it? I just, this will lead up pointed out a while back. Don't have to probe anything about religion. I thought Miss was his name Johnson, but he said, I would do the same thing with a man who came in with the Amica. So the man who came in with the Amica, the same treatment. Sorry, I was, I was, Miss Cook, I would want to hire you, but I can't. That was the answer that he gave. So there's no difference between the headscarf or the Amica or the Sikh turban in Mr Johnson's view. That's right. And to answer your question about why the employer can't just disclose the policy, that isn't a solution because that is asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice. Is there going to be a requirement for the job then doesn't the employer have an obligation to tell the employee what the job requirements are? No, you're on or not under Title VII. Title VII is not a civil service statute that requires applicants or employees who violate workplace rules to be given a chance to explain themselves and told all of the requirements before adverse action is taken against. This is what I don't understand in a better position with respect to this particular case. As I understand it, Abercrombie does not have a policy that the, that an interviewee must comply with the look policies. Is that correct? The look policy itself does not apply at the interview. It's easy to do. So what, there would be no reason for not hiring the individual involved here, unless you assumed that she was going to wear a scarf every day. Just because she wore a head scarf on that one day wouldn't mean that she necessarily was going to wear it every day. Every day she might, maybe she's just having a bad hair day. So she comes in with a head scarf. But she doesn't have any religious reason for doing it. Would you reject her for that? No. The reason that she was rejected was because you assumed she was going to do this every day. And the only reason why she would do it every day is because she had a religious reason. Justice Alito, that has not been the EEOC's theory of this case. And if it had been, there would have been ways that they could have tried to prove that. They could have questioned Johnson specifically about that. What would he have done if somebody had come in wearing a ball cap? They could have tried to get comparator evidence about what would have happened when people came in wearing non-religious headwear. And so the EEOC's theory, which it had every opportunity to prove, has not been that Johnson... Well, we may ask anything about non-religious. This Title VII doesn't require accommodating baseball caps, but it does require accommodating to religious practices. So the employer is not, as I said before, not just a candidate of a basis of religion. But if there's a religious practice, I must accommodate it. That's a discreet requirement. The premise of Justice Alito's question, as I understood it, is that Abercrombie only didn't hire this person because the headscarf was religious. And what I'm suggesting is, Abercrombie might well not have hired anybody who walked in wearing any head covering. And so if the EEOC had wanted to prove the role of assumptions about religion... So why would that be so when you just said they don't require people at the interview stage to conform to the look of the analysis? On its face, the look policy itself does not require that, but Johnson, the decision maker here, in effect, was judging people. You were about to tell us what the EEOC's theory of the case was. I was eager to hear that. Could you tell us? You think their theory of the case was. I think their theory of the case was that there was a duty to accommodate a religious practice. Any time an employer has a correct understanding or a suspicion of that practice. The theory has not been that Abercrombie acted based on assumptions about Miss Elow's religion. And I think one way in which we know that is, let's assume that the look policy did apply at the interview. Under the EEOC's theory, if an interviewer suspected that the applicant or correctly understood as Justice Breyer prefers, correctly understood that the applicant wore the headscarf for religious purposes, at that point there would be a duty to accommodate. Regardless of whether Abercrombie did or did not make any assumptions about future compliance, if the look policy applied at the interview, there would be a duty to accommodate upon that correct understanding at the interview. The problem with that rule is that employers in order to protect themselves in the future from having a jury find that they must have correctly understood that a particular. So what's the difference between that and having notes? I don't understand what you're about to say. Would you finish your thought? The only way that employers can protect themselves under the EEOC's approach is by training their managers to stereotype about possible religious beliefs, because a judge or jury might later find that Abercrombie or an employer correctly understood or must have correctly understood under an objective test, which they don't display and they're a meeky. But you were essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation. To ask some questions, now people can disagree about whether one can ask those questions in a way that's awkward at all, but you're saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But this alternative to that rule is a rule where Abercrombie just gets to say, we're going to stereotype people and prevent them from getting jobs. We'll never have the awkward conversation because we're just going to cut these people out and make sure that they never become Abercrombie employees. Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem? Justice Kagan, the problem is not having awkward conversations. The problem is that the EOC's rule would lead employers to treat people differently based on their religion, which is precisely the opposite of what Title VII wants to be. Title VII requires them to treat people who have religious practice differently. They don't have to accommodate a baseball cap. They do have to accommodate Ayamaka. But Title VII requires that only after, as the EOC has said for 40 years, only after the employee or applicant places religion on the table. Title VII does not want employers to be making those judgments before the employee raises the issue. And the concern that the EOC raises here that we're going to have applicants who are completely in the dark about work policies has not been borne out by people. I thought, is this right? I think your argument. Your argument is it may sound odd to want a special rule as to when you have belief or so forth. But for administrative reasons, we have to have it. There are millions of people who are practicing one religion or another. Well, you've got a clue of that from their name or maybe their dress or whatever it is. And whenever we have such a person applying, if she doesn't say anything or he doesn't say anything and we don't hire them or we don't do it, we're going to get sued. And we don't want all those lawsuits and it isn't that big a burden to say to the person who wants the accommodation, tell us. We get into some administrative rule about how to elicit it from her without that simple rule, tell us, we're going to be in a real administrative rat-mass getting sued left, right, and center. Have I got the essence of the argument? That's right. And even asking the neutral sounding sort of question, can you comply with the work rule? Even that is treating applicants differently based on, oh, that isn't the end of the world, perhaps, but you would say, look, we have thousands of managers and goodness knows they're going to get start getting resentful and da-da-da-da-da-da. I mean, I just want to be sure I've got the argument. That is the essence of it. But part of the reason that I think this is very significant is that under the E or C's own regulation, if the applicant, if the employer asks the neutral sounding question and then chooses not to hire the person for a reason completely unrelated to religion, the E or C will infer that there was this crime. And this is such an unusual case because it's very rare that you have a interviewer like Miss Cook, who's honest. And the only reason there was a suit here was because she was honest and came in and told someone else. But if this young woman wasn't about to sue until she heard this information, those people don't presume they're not hired because of some religious practice. But if you have a policy that conflicts with your religious practice and the person knows you're going to wear a Yamaka, then you might get sued. Your Honor, I think many, if not almost all Title VII cases, do originate without any sort of admission by the employer about what the reason was for not hiring the individual. And I think that the rule that places a burden on employers to spare you type and to raise these sorts of issues is one that will undermine the purposes of Title VII. Thank you, Counsel. Mr. Gershengorn, you have five minutes left. Thank you, Mr. Chief Justice. I'd like to make just two quick factual points to clear up what I said to be some confusion in the record. First of all, there was some discussion about whether, in fact, you needed to comply with the look policy. I point the court to 94a, which the district court says, 94a of the petition appendix. The policy applies to all store employees, but applicants are not required to be in compliance at the time of the interview. There was some question about whether cook knew or didn't know about the headscarf. It is crystal clear that she did not know. The district court said it is undisputed. I'm sorry that Eloft did or did not know. It is undisputed. This is at 97a of the court's opinion. It is undisputed that cook did not tell her that Abercrombie would not permit models to wear headscarf or to wear a black clothing. The look policy script should the court wish to look at it is plain to exhibit four in the trial. It quotes what the look policy is. I will caution that it is not in the summary judgment record. It was admitted in the damages trial, but the look policy is there and consistent with all of the testimony, it does not mention headscarfs. You might say a word about what I called his administrative argument. So, Your Honor, I would. I think the administrative argument actually cuts in our sense, in our favor, in a couple of ways. First of all, the suggestion that there are practical problems isn't plausible. This has been the rule for two decades. The ninth circuit, the third circuit, the seventh circuit. Everybody is applying the same test. It is the tenth circuit that for the first time has imposed these two new requirements. Second, I don't think it is an administeral for exactly the reasons we talked about in my first time up here. An employer can structure an interview to make sure the critical rules are followed. And the employer, if it wants, can make no assumptions about religion. Justice Sir, if I could pick up on your point, I think what is important about this case and why we think it is important is precisely that it is unusual. What is unusual is that the applicant found out why she was not hired. And that is what's strange. Most of the time, the person just never finds out that no accommodation was made, that the employer assumed the accommodation would be needed and just never told. And it is precisely why we were not alone. And a lawsuit, of course. It doesn't, Your Honor, get the answer. And then find out in the case. They certainly could. And it happens often, doesn't it? No, Your Honor, I'm not sure that it does. And I think this is what makes this a very important case. It's because most applicants, unlike employees, who are in a position to go back and forth with their employer and understand the work rules, applicants are in a serious information of disadvantage. They don't know the work rules. And in this case, it is undisputed that she did not. And if I could just close them picking up on something Justice Kagan was pointing out, that the background rule in Title VII is that belief is sufficient. But what makes this case, we've been particularly strong, is that this is belief plus an assumption that where they acted on that belief and they assumed that she would need an accommodation from the work rule. That is certainly sufficient and the 10th Circuit was wrong to conclude otherwise. Thank you, Your Honor. Thank you, Council. The case is submitted

Legal Case Summary

EEOC v. Abercrombie & Fitch Stores, Inc.

Date Argued: Wed Feb 25 2015

Case Number: 2D13-5615

Docket Number: 2637946

Judges:Not available

Duration: 60 minutes

Court Name: Supreme Court

Case Summary

EEOC v. Abercrombie & Fitch Stores, Inc.

Oral Audio Transcript(Beta version)