OVERNIGHT REGULATION: High court rules for Muslim woman who sued Abercrombie

Welcome to OVERNIGHT REGULATION, your daily rundown of news from Capitol Hill and beyond. It’s Monday evening here in Washington and we’re feeling rejuvenated after a break last week with both the House and Senate out of session. Here’s the latest:

 

THE BIG STORY

The Supreme Court ruled Monday in a favor of a Muslim woman denied a job at Abercrombie & Fitch because she wore a religious headscarf. 

In an 8-1 ruling remanding the workplace discrimination case back to the lower courts, the court said that Samantha Elauf only has to prove that her need for a religious accommodation was the motivating factor in Abercrombie’s decision not to hire her.

{mosads}The case, Equal Employment Opportunity Commission (EEOC) v. Abercrombie, centers on Elauf, a practicing Muslim who applied for a position as a model at the Abercrombie Kids store in Tulsa, Okla., in 2008. She was denied employment because she was wearing a black scarf known as a hijab during her interview.

Abercrombie has a “look policy” that prohibits employees from wearing black clothing and “caps” and rates its prospective employees based on their dress. EEOC argued that Abercrombie violated Title VII of the Civil Rights Act by failing to accommodate Elauf’s religious beliefs.

On Monday, the Supreme Court overturned the 10th Circuit Court of Appeals decision siding with Abercrombie, which argued that Elauf never informed hiring managers of the conflict and that allowing her to wear a headscarf would have imposed an undue hardship on the Ohio-based company.

In the opinion, delivered by Justice Antonin Scalia, the court said the lower court misinterpreted Title VII of the Civil Rights Act.

Title VII, Scalia said, contains no knowledge requirement.

“Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge,” Scalia wrote. “Motive and knowledge are separate concepts.”

Abercrombie urged the court to uphold the 10th Circuit’s ruling and, in deciding whether employers have to ask prospective workers if they need a religious accommodation, place the burden of raising a religious conflict on the applicant.

“The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result,” Scalia wrote. “That is Congress’s province.”

Justice Clarence Thomas, who concurred in part with the majority, was the sole dissenting justice.

Unlike the majority, Thomas said the mere application of a neutral policy, like Abercrombie’s look policy, “cannot constitute intentional discrimination.”

“Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ‘s religious practice of wearing a headscarf,” he wrote in his opinion. “In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices.”

Thomas said he would have upheld the 10th Circuit’s ruling.

In a statement, Abercrombie & Fitch spokeswoman Carlene Benz said the company is determining its next steps in litigation, but remains focused on ensuring that all current and future store associates experience an open-minded and tolerant workplace environment.

“We have made significant enhancements to our store associate policies, including the replacement of the ‘look policy’ with a new dress code that allows associates to be more individualistic; changed our hiring practices to not consider attractiveness; and changed store associates’ titles from ‘Model’ to ‘Brand Representative’ to align with their new customer focus,” she said.

 

ON TAP FOR TUESDAY

The Senate Finance Committee and the Homeland Security and Governmental Affairs Committee will each hold hearings on the recent IRS data breach. http://1.usa.gov/1K4Oqev and http://1.usa.gov/1M1ZsAt

A House Judiciary subcommittee will hold a hearing on First Amendment protections at colleges and universities. http://1.usa.gov/1I6jbxE

 

TOMORROW’S REGS TODAY

The Obama administration will publish 189 new regulations, proposed rules, notices and other administrative actions in Tuesday’s edition of the Federal Register.

Here’s what to watch for:

–The Federal Highway Administration (FHWA) will propose new highway design standards.

The highway design standards would include “new construction, reconstruction, resurfacing, restoration, and rehabilitation projects,” the agency says.

The public has 30 days to comment. http://bit.ly/1BEbrOz

–The Department of Energy (DOE) will delay new efficiency rules for residential furnaces and boilers.

The Energy Department’s Office of Energy Efficiency and Renewable Energy proposed new test procedures for these household appliances in March, but will reopen the comment period to give the public more time to respond.

The public now has until July 10 to comment. http://bit.ly/1cuCNQr

–The Environmental Protection Agency (EPA) will delay new regulations for oil and gas extraction wastewater under the Clean Water Act.

The pretreatment standards proposed in April by the EPA would prevent wastewater pollutants generated during oil and gas development from being discharged into publicly-owned treatment works. But the agency is extending the comment period to give the public more time to consider the changes.

The EPA says some publicly-owned treatment works are unprepared to deal with oil and gas pollutants and that these rules would “better protect human health and the environment.”

The public has until July 17 to comment. http://bit.ly/1Kz7orM 

–The Obama administration will propose new acquisitions regulations.

The Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) will propose a definition of multiple-award contracts.

The public has 60 days to comment. http://bit.ly/1BEbEBj

 

NEWS RIGHT NOW

Bathrooms: Transgender employees should have access to the restroom that corresponds to their gender identity, the Department of Labor’s Occupational Safety and Health Administration (OSHA) said in guidance it issued for employers on Monday. http://bit.ly/1FmBn1J

Pot: Lawmakers are prepping for what could turn into a “marijuana-vote-a-rama” Wednesday, sources say. http://bit.ly/1FmBn1J

Immigration: In denying to hear an appeal from Arizona Sheriff Joseph Arpaio, the Supreme Court on Monday left in place a lower court’s decision to strike down a state immigration law. http://bit.ly/1KyXZ3n

Facebook threats: The Supreme Court on Monday reversed the conviction of a Pennsylvania man who was sentenced to nearly four years in prison for making violent threats on Facebook. http://bit.ly/1JkBxMV

Security tests: A report found that TSA fails 95 percent of airport security tests conducted by Homeland Security, The Huffington Post reports. http://huff.to/1M4UUt9

Air bags: A Takata Corp. official says the company plans to replace the chemical in its air bags responsible for the defect that caused its recall, AP reports. http://bit.ly/1LXX5Oy

Mismanagement: A report found Environment Protection Agency managers let employees watch porn at work and get away with timesheet fraud, The Washington Post reports. http://wapo.st/1I2Fp6r

Gay rights rally: Police broke up an unsanctioned gay rights rally in central Moscow on Saturday, detaining around 20 people, including anti-gay campaigners who attacked the activists, Reuters reports. http://reut.rs/1FKZ86Y

 

BY THE NUMBERS

700,000: The number of adults in the U.S. who are transgender.

15,500: Approximately how many transgender people are serving in the military.

(Source: Williams Institute at the University of California-Los Angeles)

 

QUOTE OF THE DAY

“Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness,” — OSHA says in new guidance aimed at allowing transgender employees to use the bathroom of the sex they identify with.

 

We’ll work to stay on top of these and other stories throughout the week, so check The Hill’s Regulation page (http://digital-staging.thehill.com/regulation) early and often for the latest. And send any comments, complaints or regulatory news tips our way, tdevaney@digital-staging.thehill.com or lwheeler@digital-staging.thehill.com. And follow us at @timdevaney and@wheelerlydia.

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