argument first this morning in case fourteen eighty six the equal employment opportunity commission versus abercrombie and fitch stores mr mission gone mr chief justice and made it please the court the tenth circuit imposed two requirements on religious accommodation claims that eliminated liability for respondents refusal to accommodate miss eloff here first if the applicant herself verbal or requesting accommodations and second that the employer know rather than just correctly understand the need for an accommodation need a requirement mary said what is the difference between knowing and correctly understanding your own of the testimony it's a fair question the tenth circuit perceived the difference with the testimony whereas was that  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 the person thinks it is is the issue and that's why they act that's right we think that's what makes this a particularly straightforward case what the employer did here was act upon the assumption the loft needed to wear the headscarf for religious reasons and yet that it later claimed refuge that it didn't have sufficient knowledge or certainty to actually have initiated the accommodation process that congress wanted in section two thousand eac school i think there's a substantial force to your argument that the employee need doesn't have to mention this first but why do we import the term understand instead of know in the treatment case the whole idea  understands that when somebody assumes the practice is religious and then acts upon it that that is sufficient but the tenth circuit said was that is not sufficient that what is needed is something we're approaching certainty  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 if i could explain how these cases come up i think it will the best way to answer your 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 thinks two thirds that there is a religious problem the a religious conflict the player 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 would have been hired alternatively if the employer feels like there's enough concern about how messy rough would be able to perform they can great start a dialogue that's what what congress intended what they can't do is what they did here and assumed 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 occur is that only when it's is actually even if it's under fifty percent another word say the employer says you know i really don't know but i think that there's like a you know fifty fifty chance or even a forty percent chance that this person has a religious that has religious practice this religious and i don't really feel like getting into all of this accommodation stuff so i'm not going to hire this person so i think you're on to that what they cannot do but i do think so it  what the percentage chances are i think i see her net 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 a promoter fire or whatever because of that chance so your honor i think i would like to try to separate out two different 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 with the applicant before to comply in the future with the after being hired with the work will because they'll perceive that the person is religious i think the dilemma of the toronto is posing is really a false one there if the employer really has a very small understanding or thinks that 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 finding justice question isn't the issue the reason that they acted they refused to hire someone because they had a one percent belief that they had a religious pardon upon a religious belief that they were into comedy so you know i don't intend to fight just the scale and i pathetically 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 it doesn't do anything for me but he understands no room leaves suspects whatever so you're out of 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 would clearly about the applicant's religious needs that to permit the employer to understand the existence of a 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 it's higher  allow our employees to wear headscarves nothing wrong with that rule that's correct or out of but once whereas i'm just a supervisor said that doesn't prove violation by the employer what i don't agree with that you're on  conferred conveyed to her supervisor johnson but that was for a religious reason there's a dispute of the testimony about this but cook said remember summary judgment has now been granted against us so the evidence read in our favor where 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 your solution that you suggested is that if there's some doubt the employer should begin a dialogue i think it was but i don't 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 with the beard and the employer like abercrombie and fitch then white beards they don't want their models as they call them having beards but he doesn't know if the beard is there for religious reasons or not so you think it's better for him to sit there and start asking this applicant questions he would not ask anyone else about religion why do you wear your beard religious reason for that it seems that your solution causes more problems so you're 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 w congress would have preferred is that the person not get hired then that the dialogue 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 honour's hypothetical points out quite nicely but that it's somewhat it's a somewhat artificial situation here what the employer is saying is i don't want to be 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  facial hair policy but they don't not pursue free agents that wear beards they assume that those free agents can can shave once they get if you're going to say or 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 show good he's going to say no or he's only going to shave my suit i mean i don't care if it's really just a religious reason or not the guy shows up with a beard i'm not going to hire him so you're on and that's the hard question i think justice kagan was asking and i do think that's a trickier question if you policy is not i have a work rule that i'm concerned you won't be able to apply comply with in the future then i think for the other reasons i've said just so far it's all set 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 of the court of appeals or dog that here and matter is if you want to sue me for good knowing you were john exactly the problem justice ginsburg and justice scalia in response to your question the reason that is insufficient is that it is simply not the case that respond as response 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 it off did not know there was a look policy that prohibited the headscarf this is not the place to get into the facts but i thought her friend told her to is no problem with the headscarf it just shouldn't be black and so she then well 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 just as skins were 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 headscar so actually this was a situation in which the employer itself could have put on notice and then it's a very different situation if the employer says we don't allow head scarfs and then and then the employee doesn't say a thing i think that's a very different situation but to get back to my taste is there if that's a someone with a middle eastern appearance with the beard you want the employer to begin some kind of a dialogue if somebody who's not middle eastern and has appeared can employ or 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 right not others ask of religious could you please answer my question please where are you on the other part of the answer is that i don't think they 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 real work rules and that is what is critical for that is what congress wanted to a so why can't the employer just simply say we have a look policy that doesn't permit ears can you comply with that  and then hire them right if you're concerned about it you can ask a specific question the e e o c has made clear that that is western i suppose the question is supposed to be why are you wearing a beard now the question is we have a work rule that prohibits facial hair on the floor or on the force on the so that doesn't cover anything that's not immediately apparent apparent by the appearance you make it compared to a code of conduct that presumably would go through several pages here all the things we require any problem with any of them so you and i actually think that that protected that the employer is that 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 hypothesiz turns out to be a problem in practice what is going on is that in the mine one of cases that the e e o c brings at the debt we see in these cases is you're talking about a work well 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 no long hair policy you're talking about grooming 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 no religious from can avoid the stereotype however if the employer wishes what the court said and sonia is that a bilateral dialogue is what title seven is designed to accomplish and so picking up on just the sort of a worse point you could raise the policy and this is not a crazy idea have a lawsuit where she wouldn't have a lot of what she 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 is recognise 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 then we would be talking about a different point in the process about whether there was a reasonable commendation 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 cases we theory that was presented in the complaint it's the theory we got summary judgment and damages on it's the theory we defended in the court of appeals and it's the it's the theory we have first we have proceeded up under on all of our cases here there has been no switch to rephrase a religious a phrase used in the brief was that a failure to accommodate is is the kind of disparate treatment that title seven was designed to prevent we think that is correct and accurate that what the congress meant to do was put people who needed accommodation like  which is to say there's a disparate treatment way to prove discrimination a failure to accommodate their we did not and to highlight the difference of disparate treatment will you allow and hats but not religious hats that's disparate treatment this is you don't you don't allow any hats but we want to wear the religious hat that would be a failure to accommodate we did not at any point in this case abandon change or through 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 because we wish to avoid a one nine hundred eighty one a question kate a question which a no court has ever adopted the theory and which at no point in this litigation have they ever released even though nine hundred eighty one b and further failed to accommodate her religious beliefs by making an exception to the look part i looked at your breaks 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 but so the idea that nine hundred eighty one a magically became part of this case when we mention know so work 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 nine hundred eighty one and although it's not a question that's before this court the reason for that is nine hundred eighty one  just want to distinguish the different theories because under a disparate treatment approach where there's 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 ok as the lower courts are called a conventional disparate treatment if i could reserve the balance of my time thank you counsel theory in its brief does not depend on any such assumption the u s sees theory in 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 all agree with the offer and a religious accommodation if they have a reasonable basis not to remain follow the statute you only have to accommodate not on we go back to their position well it's very simple because you're mischaracterizing it their position is if you believe that someone believes no we're a lot of said you know we don't permit facial hair on the floor you have a problem with that just a survey or as as an initial matter their theory in their brief does not depend on any sort of assumption about whether applicant would later be able to comply with the work work rule or not under the theory expressed in their brief even if an employer like abercrombie had a policy in which to look policy applied at the interview you were being assessed at the interview based on your compliance with our dress you think at the end you think the employee has to say i'm dressed the way i am for religious reasons 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 life and personal nature of religion i would say four people show up for a job interview at abercrombie and half this is going to sound like a joke but you know it's not so the first this is a sikh man wearing a turban the second is in his city man wearing a hot the third is a muslim woman wearing and cobb the fourth is a catholic nun in the 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 religious reasons or not just trying to make a fashion statement first of all your honor 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 riyadh group interviews where there must multiple applicants at a time and so i think the reality is it's a lot more difficult than the government imagine to start having these individual i dial locks but going to your point about those sorts of religious outfits one can certainly imagine cases in which it is murder or obvious then other is that a particular particular garb is likely worn for religious purposes however i would direct the court if i could to join appendix one thirty and one thirty one which contain pictures of the sort of headscarf that musial off was actually wearing in this case those sorts of situations where it's far more ambiguous whether a whether a particular outward symbol is religious in nature or not will be far more cruel that may be the case but what i want to know the answer to the question whether the employee has to say i'm wearing this for religious reasons or whether we're willing to admit that there are some circumstances in which the employer is charged with that knowledge based on on what the employer observes no your honor i think there are some circumstances which it is certainly more likely  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 to what i thought the question presented was of the tenth circuit had said employer unless you know from it was appalling from the applicant unless you received direct explicit notice that what she wants to breyer is based on religion and she wants an accommodation unless you receive direct explicit notice from her you're 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 but we have to say whether that's wrong and if you do is wrong it would be helpful to say what they have to do so the s g says here is what it is if the employer correctly in correctly understands and i would add or correctly believes the practice is religious in accommodation is necessary that's it then he has to accommodate unless he has one of the excuses under the two hundred fifty thousand federal cases a year those say eighty thousand to go to trial proving that somebody has a belief or other is probably an issue of ninety 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 belief is like in any other case i don't think this is like any other case because you're dealing with you're dealing with something religious belief 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 seven that has you got to be against the law right and doesn't matter whether the employer it doesn't matter whether the employer to an absolute certainty right absolutely because in that situation what's relevant is the employer's intent if the employer intends to may one were 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 if it were soon 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 you are neutral policy really doesn't matter it only matters if you 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 a headscarf for religious reasons it shouldn't make any more difference than in the hypothetical that i gave your honor on on that watch 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 head scarf in a religious practice not even the serious claiming that there is a duty to accommodate in that situation and so the question before the court is  knowledge does the employer have to have before they have a duty to accommodate his trip for thirty years the e e o c his own guidance has put the burden to initiate the conversation on the employee because only the employee in those really knows the r three she knew that abercrombie did not s qualified and has the personality they're looking for new stressed appropriately that this company would fail to hire her because they refuse to accommodate her religious beliefs just she asked a friend who in turn asked and asked an app another abercrombie employee who was not involved in the hiring process and even the advice and it was a store manager who but a store manager who was not involved in this hiring process she had an opportunity are scripted interviews in which show you know where 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 join convicts thirty three enjoying appendix one hundred two one zero one that's cook's testimony that she read a summary of the look policy and gave an easy off the opportunity to ask any questions now with the it did not specifically mention the headscarf however it described the look policy in general and is it often new before it was a matter of common sense that abercrombie requires their employees to wear clothes that look like abercrombie style let's say somebody somebody comes in for an interview and this person is has a walk he wanted to you know draw the person who has a look this is the person who has a look looks just like this mythical preppy or somebody who came off the beach in california only one problem person is wearing a block blouse which is against the abercrombie rules now would be fire that would 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 e e o c 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  for the action here rather abercrombie at most it was completely indifferent to no but that doesn't work in a case like this it's not a question of are you treating everybody the same if you have an obligation to accommodate people with particular religious practice or belief is i understand it's intentional discrimination because you failed to accommodate it and i would submit that that isn't in comprehensible understanding of what intentional discrimination means intentional discrimination yanna how we get into all that if you want to rise in the files and contacts 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 he's saying you did good he correctly is i mean i think we can say that something wrong each don't formulate your correct belief just because she told you i mean you can argue that when that's the only way to prove it open to that argument i'd like to hear it once we're beyond if i might but that isn't the only way you can prove correctly 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 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 the 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 file isn't it and should isn't that what the school says she did she said she saw her in a scarf and that she assumed that it was wrong because of religious beliefs so she acted on a stereotype that some i guess 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 missy off because she was non compliant with the look policy no here guy at her because under the look policy he believed you could not a comedy act religious belief i've i think that there are that religious practice i think the reason that he didn't  the 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 is the matter if she told him that this was because your religious belief if he's only firing her or not hiring her because of the look policy then he hasn't discriminated  this is for religious beliefs 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 mean i am so totally confused so he hears  enough that's right because ms cooke herself testified that she did not know that you are for the headscarf for religious reasons what we want to avoid is a rule that leads employers 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 civil service statute that requires applicants or employees who violate workplace rules to be given a chance to explain themselves and target all of the requirements prefer adverse action is taken and this is what i don't understand a better position with respect to this particular case as i understand it abercrombie does not have a policy that the that and interview we must comply with the look policies that correct the look policy itself does not apply if the interview it's  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 were a headscarf on that one day wouldn't mean  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 headscarf 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 assume 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 e e o c 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 you have done if somebody had come in wearing a ball cap they could have tried to get compared to evidence about what would have happened when people came in wearing non religious headwear and so the e e o c theory which it had every as i understood it is that abercrombie only didn't hire this person because the head scarf was religious and what i'm suggesting is abercrombie might well not have hired anybody who walked in wearing any head cover and so if the once i think their fear of the case was that there would be to accommodate a religious practice any time an employer has a correct understanding or a suspicion of that practice it has not the theory has not been that abercrombie acted based on assumptions about ms office religion and i think one way in which we know of that is let's assume that the loop policy did apply at the interview under the e e o c sphere if an interviewer suspected that the applicants were correctly understood as justice by the prefers to speak correctly understood that the applicant were the head scarf 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 loop 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 sort of what's the difference between that and having i don't understand what you're about to say which would you finish  thought the only way that employers can protect themselves under the e e o c as 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 disclaim and there are beginner essentially saying that the problem with the rule is that it requires me 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 where to draw 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 syria type people and prevent them from getting jobs will 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 the statute seem to think is the worst problem justice kagan the problem is not having awkward conversations the problem is that the city's role would lead employers to treat people differently based on their religion which is precisely the opposite of what title only after the employee or applicant places religion on the table title seven does not want employers to be making those judgments before the employee raises the issue and the concern that the e e o c raises here that we're going to have applicants who are completely in the dark about work policies has not been borne out is this right i've got 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 when you get a clue 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 doesn't say anything and we don't hire them or we don't do it we're going to get sued and really don't want all those lawsuits and does a bad big bird to say to the person who wants the accommodation tell us we get into some administrative rule about how to elicit from her without that simple rule tell us we're going to be in a real administrative less red mess 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 that is trading of part of the reason that i think this is very significant is that under the e e o c is only regulations if the applicant if the employer asks the neutral sounding question and then chooses not to hire the person for a religion for a reason completely unrelated here was because she was honest and came in and told someone else but if this young this young woman wasn't about to sue until she heard this information 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 yarmulke then you might get sued your honor i think many if not almost all title seven eight 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 your type and to raise these sorts of issues is one that will undermine the purposes of title seven thank you concert mr gresham going your five minutes left thank you mr chief justice i'd like to take 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 appoint the court to ninety four which is which the district court says ninety four 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 didn't know about the headscarf it is crystal clear that she did not know the district court said it is understood i'm certain that the last did or did not know  this exhibit for work in the trial it quote sweat the repulses i will caution that it is not in the summary judgment record it was admitted in the damages trial but the work policy is there and consistent with the testimony it does not mention headscar 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 just to serve my or if i could pick up on your point i think what's important about this case and why we think it's 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 strange most of the time the person just never finds out but and it happens so often doesn't it know you're on 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 were in a position to go back and forth with their employer and understand the work rules applicants  serious informational 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 were in title seven is that belief i sufficient but what makes this case we think particularly strong is that this is belief plus an assumption that acted on that belief and they assumed that she would need an accommodation from the work will that is certainly sufficient and the ten circuit was wrong to conclude otherwise thank you thank you construct the case is submitted