implement mission versus abercrombie and fitch stores. mr chief justice. made it please the court. the tenth circuit impose two requirements on religious accommodation claims that a limited liability correspondence refusal to accommodate her. first that the applicant herself verbally requested the accommodation and second that the employer know rather than just correctly understand the need for an accommodation. >> what is the difference between knowing and correctly understanding? >> it is a fair question. the tenth circuit receives a difference. the testimony was ms. cook assumed she needed to wear the

head scarf that she was hurt -- religious and that it signifies a was a religious head scarf and she figured it was a religious head stock. with the tenth circuit said was that was insufficient. what was needed was actual knowledge. our position is when you figure when you assume, when it signifies to you or religious accommodation is needed. that is sufficient notice for an employer to be on notice. >> those damages that subjective? meaning -- >> the issue is whether they failed to hire her because of a religious practice whether the person thinks it is is the issue. >> that is why they acted. >> that is what makes this a particularly straightforward case. what the employer did here was act upon the assumption that she needed to wear the head start for religious reasons and later

claimed refuge that it didn't have sufficient knowledge or certainty to have initiated the accommodation process congress wanted in section 2,000 -- >> there is substantial force to the argument that the employee doesn't have to mention this first, but why do we import the term understand instead of no. the whole idea is probative action was taken because of religion. why are you making it so confusing? >> it is the tenth circuit that is confusing. what the tenth circuit has done is -- >> your statement is understand, stay away from the word no. i can't understand your answer. >> the answer is we think there is sufficient knowledge, notice when somebody understands that

when somebody assumes their practice is religious and acts upon it that that is sufficient. the tenth circuit said that is not sufficient. what is needed is something more approaching certainty. >> that does raise the question. it is less uncertainty how much certainty is dirksen senate office building suppose i'm an employer and i say i don't honestly know. it is two out of three. is that sufficient? >> if i could explain how these pieces come up the best way to answer your question. the answer in a situation like this in which an applicant applying for a position and the employer suspects, thinks there's a religious problem 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 she would have been hired. alternatively if the employer feels like this is enough

concern how to perform, they can start a dialogue. that is 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 said having assumed that i don't have any obligation to a comedy. >> is that true even if it is under 50% and save the employer says i really don't know but say there's a 50/50 chance or before me% chance that this person has a religious -- this practice is religious and i don't feel like getting into all this accommodation stuff so i won't higher this person. >> i think that is what they cannot do but -- >> what the percentage chance is.

less than certain, could be a lot less concern as long as the employer says there is some chance and i am not going to hire or promote or fire because of that chance. >> your honor, i would like to try to separate out two different situations that could arise commonly. one is the employer has a work rule and concern that the applicant won't comply, because they perceive that the person is religious. it is really a false one. if the employer has the small understanding, or things it is unlikely the employer will be religious, the right thing would be to assume there isn't a religion to stereotypes and assume the person could comply as they would with somebody who

was wearing a head cigar for something else. >> i am not sure i understand why you are fighting elena kagan's question. is it the issue, the reason they acted? they refuse to hire someone because they had the 1 present belief that they had a religious part move upon, religious belief that they wouldn't accommodate. >> don't intend to fight elena kagan's hypothetical. is really quite easy. the reason i'm trying to separate the two is i think the situation here is the easy case. i will get to the hard case and why i am fighting. you are confusing the enormously. tell me what it is you want? you say the understands -- that doesn't do anything for me. understands, nose, believes

suspects, what other firms do you need? detests the courts of appeals adopted for two decades which is the test that we ask this court to adopt is the employer needs sufficient information from any source about the employe, the applicant's religious needs that to permit the employer to understand the existence -- the courts of appeals have been -- >> i don't care what they did. that makes no sense to me. the reason it makes sense in this case is if it is sufficient knowledge for you to act upon it the critical point is if they had not, if the employer had not assumed this was religious, had not believed it, they would have hired her. the default rule for i am not sure is to hire. >> the first one responsible for

hiring, didn't she say to the district manager she is wearing a head scarf for religious reasons and that is why i am checking it out with you. the answer she got back was it doesn't matter whether it is for religious reasons, we don't accommodate people who wear head scarfs. >> that is right. >> the district manager is -- his point of view is head scarfs are out. this particular woman was wearing one for religious reasons. we don't accommodate head starnes. >> that is right and that is exactly what congress said when it enacted these -- with the didn't want to happen. >> any employer can have a rule

we don't allow head scarfs. and until someone applies for a job to for or religious reason wants to wear head scarf and an employer knows it is for religious reasons respectable leaves or understands or whatever verb you want to use, there's no violation of the law. you can have that rule. we do not allow our employees to wear head scarves, nothing wrong with that rule. >> that is correct, but once -- >> the fact this supervisor said that doesn't prove violations by an employer. >> i don't agree with that. once it is clear that an employee needs accommodation of that rule that is what title vii requires. was a neutral pulled that you have to work on the sabbath. >> the supervisor did not have that knowledge? >> that is not correct.

i took from justice ginsburg what we believe indicates cook conferred, conveyed to the supervisor johnson it was for religious reason. there is a disputed testimony about this. summary judgment has been granted against us. i told johnson was for religious reasons and johnson said of we allowed this someone will paint themselves green and college of religion we can't allow it. the court decides the question on the decisionmakers, the solution you suggested some doubt the employer should get a dialogue, that may promote stereotypes to a far greater degree, an interview with the beard and the employer like abercrombie and fitch don't like beards, don't like their models having beards. it doesn't matter of the beard

is there for religious reason. if he starts asking this applicant questions you would not ask anyone else about religion while you wearing a beard? it seems the solution causes more problems. >> two responses. first i don't think it is right that the solution causes more problems because i don't think what congress would have preferred is that the person not get hired then that the dialogue begun. those of the two options is clear congress wanted accommodation has religious practice but i also think the hypothetical points out quite nicely that it is a somewhat artificial situation. what the employer is saying is i don't want the beard when a person is on the floor but that is not a reason not to hire someone who walks in the door without a beard. the new york yankees for decades had no facial hair policy but they don't not pursue free agents the where beards. they assume those 3 agents can

shave. >> for an employer to say i don't want to buy into a problem with a guy who has a beard. i will say can you see but, he will say no or only shave twice a week, i don't care for his religious or not. the guy shows up with a beard i am not going to hire him. >> that is the hard question and that is a trickier question. if your policy is not have work rules the 9 concerns won't be able to comply with in the futures then for all the reasons i have said it is all said. of the question is if someone comes to my office with the beard and i just think it is an attempt. i don't like it. won't hy regardless whether they could comply. that is the situation that presents this is it one third, is it two thirds? it is not a question presented here and it is not the kind of cases we actually see. they are much more the work rule. >> you can avoid those hard questions, understand believe suspect by directing the rule

the court of appeals adopted. if you want to sue me for denying for religious reasons the burden is on you to say i am wearing my head scarf or wearing the beard for religious reasons, that avoids all problems. once you notify the employer is for religious reasons you got them. >> you tell her it had this policy? the head stock would violate, how could she asked for something when she didn't know about the head set? >> that is exactly the problem. in response to your question, the reason that is in question is is simply not the case that the superior knowledge is with the applicant in that situation. the applicant is not on notice of what work rules are indeed in this situation that testimony wasn't hundred that she did not know there was a work policy that provided a head scarf.

>> this is not the place to get into the facts but i thought her friends told her to wear it least a colored scarf until the subject came up. >> actually -- >> we were not fact finders. >> is important because that in fact supports our position because what her friend said was there's no problem with the head car it just shouldn't be black so if anything she was on notice that there was no problem with the head starts. i think it cuts exactly the other way and to pick up on your point, what makes it particularly inappropriate to put the burden on the applicant is it is the employer who gets to structure the interview and the employer here read some version of the policy but did not mention the head stocks so this was the situation in which the employer could have put her on notice and then it is a different situation.

if the employers said we don't allow head stocks and then the employee doesn't say anything that is a different situation. >> to get back to the beard case, someone with a middle eastern appearance with the beard you want the employer to begin a dialogue. it is somebody who is not middle eastern and has a beard, in other words he is asking religious questions of some people in this on a stereotype. >> what if the staff is not religious? >> part of the answers i don't think the employer does. as i said earlier the right approach for the employer who wants to avoid the subject is to assume the person of middle eastern descent like the person not a middle eastern descent has a beard for personal preference and would be happy to shave iffy got a job in order to comply with work rules and that is what is critical. that is what congress wanted -- >> why can't the employers simply saying we have a work

policy that doesn't permit beards? can you complied with that policy? >> reasons or no reasons doesn't really matter why. >> two options, one is the one i gave to the chief justice which is you can assume the person doesn't wear it for religious reasons and hires them or if you are concerned about it ask a specific question. >> the question is why are you wearing the beard? >> we have a work rules that prohibits facial hair on the floor, on the force -- >> that doesn't cover anything not immediately apparent by the appearance, echoed of conduct that would go through several pages. here are all the things we require, any problems with any of them. >> i think this is -- the employer is that no risk of liability if he asks no question but makes no assumptions and

stereotypes and that is why i don't think what your honour's hypothesizing turns out to be a problem in practice. what is going on is in the cases the eeoc brings the we bring in these cases is you are talking about you must wear pants at work and the employer has a religious objection and things women should wear skirts. you're talking about a no longer care policy you are talking about groomed and guard 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 avoid the stereotype but if the employer wishes, what the court said is bilateral dialogue is what title vii is designed to accomplish so picking up on the this is not a crazy idea -- >> can you do it? is that the only religious

preference that has to be honored? i can but i would like not to for of religious reason. i guess i could take off my head start but it would be very inappropriate, religiously uncomfortable. are you acknowledging the only accommodations that has to be made is accommodation for somebody who absolutely for religious reasons cannot do something? >> no. that is not what this case is about. >> you can i ask that question your telling them to ask, can you do it? yes i guess i could. >> that is the exact dialogue that is supposed to happen. that is what this court said should happen. that is the bilateral dialogue. what congress wanted when it asked a reasonable accommodation requirements is precisely for the employer and employee -- and

then later says i could put the weight it is really uncomfortable for me to do that for religious reasons would you still have a lawsuit? >> you wouldn't have a lawsuit but she could. if she could then she was tired and when she said actually now it is quite uncomfortable there's request for accommodation and she and the employer need to go into a discussion just like you would if you said i need this time off to attend a religious conversion ceremony which was at issue in the ninth circuit case, that is the back-and-forth of everyday employer/employee -- >> can the employer say we have a policy of no beards the whatever, do you have any problem with that? why does it have to be phrased could you do it? do you have any problem with it? are you willing to do it? >> what title 7 recognized and the actual accommodation back and forth is a flexible process. is designed to be collaborative

so there isn't a fixed rule you have to freeze it this way or that way. the point is to initiate a dialogue and had that happened we would be talking about a different point in the process about whether there was reasonable accommodation whether it could be done with undue hardship. that dialogue never happened here and that is the problem with the case as we see it. >> the respondent, in mid stream, you start out with refusal to accommodate theory and then abandoned that. >> that is not correct. from the very beginning our theory has been that the respondent violated title 7 by refusing to accommodate her. that was the theory presented in the complaint, it got summary devon -- damages on. was the theory we depended on

the court of appeals and the we have proceeded under on all of our cases. there has been no switch. creepier accommodation is 14 times. >> the disparate treatment plus failure to accommodate. >> i would like if i could avoid it, explain opposition and disparate treatment, the phrase used in the brief was failure to accommodate is the kind of disparate treatment title vii was designed to prevent. we feel that is correct and accurate. what congress meant to do was put people who needed accommodation, head stock accommodation on the same footing as people who did not need to wear head year. that is the sense in which this is disparate treatment. however we recognize the lower court says disparate treatment in another way which is to say there is disparate treatment to prove discrimination, tell your toes, date. to highlight the difference, the

disparate treatment would be you allow all had some but not religious at least that is disparate treatment. this is you don't allow any hats but we want to wear a religious cat. that would be failure to accommodate. we did not at any point in this case abandon or change our theory from failure to accommodate. with the other side has done is buster not only the we did that but did it for some motive because we wished to avoid a 1981 question, a question in which no court has ever adopted their theory and that no point 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, the only source of damages they never raised it, we are proceeding in the 1981 a, the pretrial order, that was it. >> i am able confused.

i read your complaint and it says the respondent refused to hire her because she failed to accommodate her religious beliefs by making an exception to the policy. i left that your brief. and looked at the jury charge and it seems like the two were always tied. failure to hire was because they refuse to accommodate her. >> that is correct 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 that is just not credible. that has been the theory, where the damages were done. they never raised on appeal never raised it -- >> suppose they had. their argument is damages only for intentions. >> no court has ever addressed that but our position and the courts applied it that there was

intentional discrimination in the 1981 a. is not a question that is before this court. the reason is 1981 a distinguishes between, and this is, and i am sorry, between the red briefs on page 1 a and 1981 a distinguishes between unlawful intentional discrimination, not an employment practice that is unlawful because of its disparate impact. billion to accommodate claims is neither disparate impact and it is intentional discrimination for exactly the reason sonia sotomayor said intentional refusal to hire because of a religious practice you could reasonably accommodate. this is not a disparate impact claim. >> i don't know why you don't just concede did this is a form of disparate treatment. failure to accommodate. i don't accommodate you because

of your religion. >> as i said it is a form of disparate treatment i just want to distinguish the different views because under the disparate treatment approach as 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 again i allow hats for everyone but not if you have a religious cat. that would be as lower courts called a convention of disparate treatment. if i could reserve the balance of my time. >> thank you, counsel. >> mr. chief justice, may it please the court? the premise of the argument today as i understand it is abercrombie acted because of the religious basis for her head scarf. that is not correct in a factual matter and the eeoc's theory does not depend on any such assumption.

the theory in its brief is that any time an employer suspect possible conflict or correctly understands such conflict, at that point is on notice and a as offer religious accommodation so if you imagine a situation which is not all unrealistic -- >> offering religious accommodation, if they have a reasonable basis not to. how followed the statutes. you only have to accommodate it is not and converted the >> that is true. they always have the undue burden defense but absent undue burden they must accommodate and they must depart from a religion neutral policy based on the mere suspicion of possible -- >> the back to their position, it is very simple because you're mischaracterizing it. their position is if you believe that someone believes, a lot of adjectives, someone will leave a

religious accommodation and won't comply with your policy just cents them. just the way justice of the note said. we don't permit facial hair on the floor. you have a problem with that? >> as an initial matter, their theory in their brief did not depend on any sort of assumption about whether the applicant would later be able to comply with the workroom or not. under the theory expressed in their brief, even if an employer had a policy in which the work policy applied at the interview, you are being assessed at the interview based on compliance with our draft. >> using the employee has to say i am 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 will come directly from the employee because of the individualized

and personal nature of religion. >> four people show up for a job interview at abercrombie. this will sound like a joke but it is not. so what sheik wearing a turban, the second is a hasidic man wearing a hat. the third is a muslim woman wearing a scarf, the fourth is a catholic nun in a had it. you think the employer has to -- those people have to say we just want to tell you we addressed this way for a religious reason, we are not just trying to make a fashion statement. >> one aspect of your hypothetical is not a joke and that is meant many of these interviews that abercrombie are in fact group interviews. and -- >> group interviews where there are multiple applicants at a time so the reality is it is a lot more difficult in the government to start having individualize dialogues that going to your point about those

sorts of religious outfits, one can certainly imagine cases in which it is more obvious another is that a particular data is likely one for religious purposes. however i would direct the court if i could to joint the appendix 130 and 131 which contain pictures of head stocks that she was wearing in this case. those sorts of situations where it is more ambiguous weather a particular outward symbol is religious in nature or not, will be far more -- >> i want to know the answer to the question whether the employee has to say i am wearing this for allegis reason or admit there were some circumstances in which the employer based on what the employer observed. >> no, there are some circumstances where it is more likely engine others but the question before the court is to divide a rule that is going to apply across the board.

>> i think that was the question. i thought the question was the tenth circuit had said employer unless you know, unless you receive explicit notice based on religion and she wants and accommodation, receive direct explicit notice from her you are home free, do what you want. they say in the last few words of describing it, we think that is wrong. i agree that we have to say whether that is wrong and if it is wrong it would be helpful to say what they have to do so here is what it is. if the employer correctly infer is, correctly understands and i would add correctly believes

that a practice is religious and accommodation is necessary, that is it. and has to accommodate unless he has one of the excuses and did the statute. hoecake? what is wrong with that? >> i think what you just described is a will for all cases and one that is entirely not administrable for courts, employers and applicants a like. >> it is a administrable to say if the employer believes, thanks this woman is religious and needs an accommodation and he is right, well, do something unless you have an excuse. >> because they did not explain what level of 70 is required for a belief. >> you have to prove he has the believe. probably in 250,000 federal cases the year, and 80,000 go to

trial, proving somebody has of belief for others probably an issue at 90% of them. i am making that up but nonetheless i don't think it is uncommon in the lot that you have to prove somebody believes something so we say the standard of the leaf is like any other case. >> i don't think this is like any other cases because you are dealing with something where images belief which is inherently personal to the individual and to charge employees with title 7 liability when and require them to come to an understanding of whether a particular practice is religious or not. >> suppose an employer just doesn't want to hire any jews and someone walks in and his name is golden egg and he looks kind of jewish and he doesn't know he's jewish, no absolute 70 and mr. goldberg doesn't say anything about being jewish but the employer operates on an assumption that he is jewish so

he doesn't get the job. is that a violation? >> that is the disparate treatment violation. >> then it has got to be against the law. doesn't matter whether the employer -- doesn't matter whether the employer knows to an absolute certainty, right? >> absolutely because in that situation what is relevant is the employer's intends. if the employer intends to discriminate on the basis of religion that is a title 7 violation. what is going on here is the employer seeks to apply a religion neutral dress code. religion according to johnson -- >> title vii all of the title 7 would present -- prevent religious discrimination but it makes religious practice the refusal to accommodate religious practice is itself a violation of title vii. that was done deliberately, was

it not? so that religious practices would have to be accommodated. >> yes, your honor. two points in response to that. one, we are not contending with just practices don't have to be accommodated. we are contending as an initial matter that an employer did not intentionally discriminate on the basis of a religious practice by enforcing a religion neutral dress codes that would have been -- >> the question was what the statute does is to say if you are wearing a head star for religious reasons that your neutral policy doesn't matter it only matters if there is an undue burden and you can't make an accommodation but it doesn't matter. you just have to-be vinify wearing a head scarf. the fact that you don't know i wearing a head car for a religious reasons but only kind of assume that because most people do where head scars for religious reasons. and make any more difference than the hypothetical that i

gave. >> on that logic also would make no difference if the employer had absolutely no idea that the head scarf was worn for religious reasons because it would still be a religious head scarf and a religious practice. not even the eeoc is claiming there is a duty to accommodate in that situation so the question before the court at what level of knowledge does the employer have to have before duty to accommodate is triggered? for 40 years the guidance has put the burden to initiate a conversation on the employee because only the employee knows -- >> the employee knows the rules. the employee had no reason to think there was anything offensive about her dress. how can she say by the way i have a religious reason for wearing a head scarf when the employer doesn't care about head scarf. the employer has put on notice of a look policy, somehow is he

supposed to -- the question as far as this goes is fine if she is wearing a head scarf. the employee knows this violation. >> i respectfully disagree with that characterization of what went on here. she knew enough about abercrombie to understand that it had addressed code. million about abercrombie to ask in advance and -- >> i was not aware of that. >> she testified the genu she would have to wear abercrombie style clothes in appendix xxiii, she knew abercrombie did not sell head starnes. >> came in with an abercrombie tight shirt. >> she also knew that abercrombie did not sell head scarfs. joint appendix 37. >> to work for abercrombie,

whether the head scarf was a problem and friend says no. if it is not black kid should be okay. and the managers said it was okay to wear scarves. >> why would she suspect that she is qualified and has a personality they're looking for and is dressed appropriately the this company would fail to hire her? because they refuse to accommodate her religious belief? >> she asks a friend who in turn asked another abercrombie employee who was not involved in thought hiring process. >> this is for a manager. >> a store manager who was not involved in hiring process. she had an opportunity before miss cook who interviewed her to ask any questions about the work policy after she described the work policy at the interview. >> but not about a head carley >> did not mention the head starts.

abercrombie interviews in addition to being group interviews are scripted interviews. >> show me where in the script? i remember reading this and she in facts that we don't discuss look policy at the interview. >> if you look at a joint appendix 33 and a joint appendix 100-101, cook's testimony she read a summary of the local policy and gave it the opportunity to ask any questions. >> no mention of a head scarf. >> it did not specifically mention a head stock but it described the look policy in general. she knew before it was a matter of common sense that abercrombie requires their employees to wear clothes that look like abercrombie style. >> somebody comes to an interview and this person has the look. if you want to draw the person who has the look this person has the look just like this

mythical, someone who came to the beach in california. only one problem. the person is wearing a black blouse which is against the abercrombie rules. when abercrombie fire not hire that person on the assumptions that this person likes black so much this person will 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 where the suit, please where our close buddy would be equally rational for abercrombie to say this person coming wearing a suit is not compatible with our style and likewise for the head scarf, johnson's testimony which the eeoc didn't challenges he would have taken the same action for somebody who came to an interview wearing a head starve, baseball cap, helmet or another

religious symbol. >> somebody comes in and applies for a job no questions asked that violates the policy. >> that is right and what that shows his religion is not the basis for the action here. rather abercrombie at most was completely in different. >> that doesn't work in a case like this. it is not are you treating everybody the same but you have an obligation to accommodate people with religious practice or believe so people would have treated somebody with a baseball cap the same way doesn't seem very responsive. >> for purposes of intentional discrimination claim it does matter you would treat everybody the same and that is the theory we are pursuing. >> as i understand it is intentional discrimination because you failed to accommodate. >> i submit that recent incomprehensible understanding

of what intentional discrimination means. >> how did we get into that if you want to add something? we are now kind of inner jetblue edge if he believes he is religious and need accommodation, that is the end of it. you are in the statute. >> correct belief in the context, did he correctly believe the drug that was being sold, the white powder was heroin, did the manager you are trying to fire, did he correctly believe or didn't pay enough for college graduates, did he believe this applicant graduated from princeton? or abercrombie? did he correctly believe that he had authority under the delegation of agency to sign a check? thousands of things. why is it our job to say what

the right way is? we can say something wrong you don't have to formulate your correct leave because she told you. you can argue that one. that is the only way to prove it. i am open to that argument but once we are beyond that if i am right that isn't the only way to prove, why do we have to say? >> in this particular context, having a standard belief or suspecting possible conflict will inevitably lead employers -- >> that is -- >> i am with you only where they correctly believe -- or understand. or no. those three things i repeated this three times and wants to hear the answer. >> the reason they are not good

enough is there is no way the employer can know about religious practice unless that is traceable to the employee and having debt correctable the standard will inevitably lead employers to stereotype because a fact finder. >> if you wear a black scarf, >> i don't believe they acted on that stereotype. johnson instructed her not to hire her because she was non compliant with the work policy. >> the look, under the look

policy, she believed you could not accommodate the religious beliefs. >> that religious practice. >> it seems to me traceable, and at least that much. pretty hard to think of a case where it wouldn't be. i could imagine a case where you found out about this from an fbi agent who was making it up. it seems very unlikely. >> the case of the government gives us an example, learned of an applicant's religious practice. it is traceable to the

applicants. >> i'm still very confused. don't think there should never be in discrimination based on general neutral policy. what does it matter if she told him that this was because of religious belief. if easily firing her or not hiring her was because of the nook policy. >> >> i am so totally confused. if he hears it from this cook. that is not enough. >> that is right because ms. cook herself testified she did not know that she wore the head are for what it is reasons. and leads employers to have

liability to start stereotyping about weather is a thing, guess or suspect that somebody -- >> what they have to do is this is what the look policy is to many problems. i thought what he said was the same thing. i was -- would want to hire you. that was the answer. there's no difference between the head scarf or a seat turben in mr. johnson's to you. >> that is right. to answer your question about why the employer can't just disclose the policy.

that is asking employers to treat applicants differently based on stereotypes or function, likely religious practice. >> this is a requirement for the job. does the employer have an obligation to tell the employee what the job requirements are. >> not under title 7. the statute requires africans or employees who violate workplace rules to give a chance to explain themselves and told the requirements before adverse action is taken again. >> the position with respect to this particular case. abercrombie does not have a policy that an interview must have with the work policy. >> the work policy does not apply at the interview. >> there would be no reason for not hiring the individual involved here unless you assume

she was going to wear a scarf everyday. just because she wore a head start that one day would mean she necessarily -- maybe she is having a bad hair day so she comes in with the head scarf but didn't have any religious reason for doing it would you reject her for that? >> no. the reason she was rejected is you assumed she would do this every day and the reason she would do it every day is because she had a religious reason. >> that has not been the e o c's theory of this case and if there had been there would be ways to prove that. they could have questioned johnson specifically about that. they could have gotten comparative about when people come in wearing nonreligious headwear. they had every opportunity to prove -- >> anything about nonreligious,

title vii doesn't require baseball caps but does require religious practices. so the employer -- religious practices, to accommodate it. that is a discreet requirement. >> the premise of justice of the no's question is abercrombie didn't hire this person because the head start is religious and what i am suggesting is abercrombie might well not have hired anybody who walked in without wearing head covers. v e l c, and at the interview stage. >> the decision maker here was judging people. >> you were about to tell us what the eeoc's theory of the

case was. could you tell us? >> the theory of the case. >> i think there theory of the case was the duty to accommodate religious practice any time an employer has correct understanding or suspicion of that practice. the theory based on assumptions about religion and one way in which we know that is let's assume the look policy did apply at the interview. if an interviewer suspected the applicants or correctly understood, correctly understood the applicant or a head bar for religious purposes at that point there would be a duty to accommodate. whether abercrombie did or did not make assumptions about future compliance of the policy applied at the interview there would be a duty to accommodate

the correct understanding at the interview. employers in order to protect themselves in the future from having a jury finding that they must have correctly understood a particular -- >> what is the difference between that -- >> i don't understand. would you finish your thought to >> the only way employers can protect themselves is by training managers to stereotypes about possible religious belief because the judge or jury might later find abercrombie wore an employer correctly understood or must have correctly understood under an objective test. >> you are saying the problem with the rule is it requires to engage in what might be thought of as an awkward conversation. people can disagree with anyone can ask those questions that you are saying we should structure

the whole legal system, but the alternative to that is a world where abercrombie gets to say, and we will cut these people out and make sure they never become abercrombie employees. between those options, the option of using the stereotype to make sure somebody never gets a job and using the serious side to have an awful conversation. which is the worst problem? >> is not having awkward conversations. the problem is the eeoc's rule would lead employers to treat people differently based on their religion which is precisely the opposite of what title vii wants. >> it requires them to take people who have religious practice differently. don't have to accommodate --

>> title vii requires that after the eeoc said for 40 years or the employee or applicant places religion on the table. title vii does not want employers to make those judgments before the employee raises the issue and the concern they raise here that we are going to have applicants who are completely in the dark about work policy has not been borne out. >> your argument is it may sound odd, for administrative reasons we have to have it. millions of people practicing one religion or another. or a dress or whatever it is. whenever we have such a person applying and we don't hire them or know if we are going to get the suit. it isn't that big a burden to say to the person who wants the accommodation, tell us.

we get into some a administrative rule about how to elicit it from her without a simple rule telling us we will be in a real lead ministry of -- the essence of your argument. >> can you comply the work will even that is treating applicants differently based -- >> that is not the end of the world. we have thousands of managers, goodness knows they will get resentful. i want to be sure i got the argument. >> that is the essence of the. part of the reason it is significant is under the eeoc's own regulations if the applicant, if the employer asks and chooses, and the eeoc will infer. >> very rare to have an interviewer like miss cook who

is honest. the only reason there was a suit here was because she was honest and came in and told someone else. this young woman wasn't about to sue, most people don't presume they were hired because of religious practice but if you have a policy that conflicts with religious practice and the person knows you will wear a yarmulkes, you might get to. >> the cases to originate without any sort of admission by the employer about what the reason was for not hiring the individual. the rules that places a burden on employers to raise these issues is one that will undermine title vii. >> thank you. you have five minutes left. >> two quick fact will points to

clear up some confusion in the record. there was some discussion about whether you need to comply with the look policy. i point of the court to 94 a in which the district court, the policy applies to all employees but applicants are not required to be in compliance at the time of the interview. there was some question about whether coke knew or didn't know that the head scarf, it is crystal clear she did not know, the district court did or did not know, it is undisputed. 97 a in a court's opinion is undisputed but cook did not tell her abercrombie would not permit her to wear a head scarves or black clothes. the policy script, should the court wish to look at it, exhibit iv in the trial, i will cost -- caution is not in summary judgment record, it was in the damages trial but the work policy is there and consistent with all the

testimony. it does not mention head starnes. >> the administrative argument -- >> the it ministry of argument in a couple ways suggestion of a practical problem isn't plausible. this has been lower role, the tenth circuit for the first time imposed these requirements. it is it miserable for the same questions we talked about my first time up here. an employer can structure an interview to make sure critical rules are followed and the employer can make no assumptions about religion. sonia sotomayor, on your point, what is important about this case is precisely that it is unusual. what is unusual is the applicant found out why she was not hired and most of the time the person

never finds out no accommodation was made. the employers in the accommodation would be needed and never told. >> in a lawsuit of course. >> and then find out. >> face certainly could. >> it happens often. >> i am not sure it does. that makes this an important case. most applicants unlike employees who are not positioned to go back and forth with their employer and understands applicants are at an informational disadvantage. they don't know the work rules and in this case it is undisputed did she did not. picking up on something elena kagan was pointing out, the background rule is belief is sufficient but what makes this case particularly strong is this is believed plus assumption, acted on that belief and assumed she would need accommodation

from work will and they were wrong to conclude otherwise. >> the case is submitted. >> the house and senate have a temporary spending measure to fund a land security for one week. after the house rejected a three week hatch both chambers passed the short-term bill which funds the departments until friday march 6th. the house returns for legislative business monday at noon. the senate is back monday at 2:00 p.m. eastern and at 5:30 we take a vote whether to go to conference with house to work out differences between their separate versions of spending and controversial language dealing with the president's executive action on immigration. live coverage of the house on c-span and the senate on c-span2. >> here are some of our featured programs on the c-span network.

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