views have changed and we did in fact publish the print cover in january after the attack because it seemed like you have to do it and i wish we had in fact published the cartoons -- i'm speaking of personal capacity -- i wish we had to publish them in 2005 and 2006 and that every newspaper had done the same. ..

and didn't put any of the cartoons in there. and my reaction was disbelief because once not talking about taste anymore. this is what the book was about. and while perhaps you didn't have to publish every one of them it's hard to communicate what was going on if you don't do it. i mean, i had a letter in "the new york times" complaining about the fact that they didn't publish any of the cartoons at issue with respect to what we are talking about today. their stated position was, they have a policy against publishing

materials which by their nature are offensive and don't advance public discussion of some issue. my view was that they were newsworthy. how could they not be? and while one could make a determination that in the service of good taste, if you will, not to publish them all publishing none of them seemed to me to depriving the readers of the chance to make a more informed judgment, or at least have a better informed body of knowledge, as to what was going on. now, it may be that it was at the head of cnn who put it the most candidly. he said, i think of the wives and children of my employees.

that's why we are not doing it. now, you know, i'm not sending cnn into places they don't want to go but that's a surrender to terrorism, period. i mean, that's the way of saying they win. i think that's an unacceptable answer. >> i would, just for a briefly, the times when a decision not to publish the cartoons, it was pointed out that the times had previously published anti-semitic cartoons for the service of illustrating some of the cartoons that are routine in much of the arab world when it comes to their view of jews. and that was the right decision to publish the anti-semitic cartoons, and it made his decision not to publish the charlie hebdo cartoons that much

stranger, more curious in my view. i guess i could say just further to what floyd just said. you can't conduct editorial policy much less foreign policy as if you're in a harry potter novel where, you know, certain things cannot be named. this is not you are entering into a kind of a strange moral universe that moment that you do that, which is another argument for, right now we have a conference on violent extremism but we cannot speak of the violent extremism that we are, all of us aware of being engaged in a struggle with. so it's a slightly overwhelming world -- orwellian world. >> i have one more question and then we'll open it up. sylvie? >> i will be brief to clarify because i don't want to be misunderstood. my personal view is that we have

to publish those cartoons, and we did. again, but what i don't, and, of course, i don't approve self-censorship and i think we have to stand up to all this. that's pretty obvious to me. but i don't like the compulsory aspect of we all have to publish. i mean every editor takes his own decision and has the debate in his or her newsroom. but this i must say i don't like this idea that we all have to publish the same thing. it's a bit totally carrion tuning. >> so you're deciding as a broadcast whether to put a beheading on the news, and is clearly a vital interested controversy but it's also put whoever the terrorist group is doing it. yes, no?

>> no. >> floyd? >> no. >> a beheading, you broadcast on a? >> no. >> let's open up to the floor and it is going to start up front and we will work our way back. is there a microphone? and please identify yourself. >> i would like to slightly disagree with i guess -- [inaudible]

[inaudible] >> and so come and i think france has it's not about self-censorship or fear or anything. france has to accept it's now mostly these society and at a time when you're trying to disassociate the eight are sent or so muslim pockets relations of france from radical fundamentalist, i don't think it's the most, the smartest thing to do to publish a cartoon that insults the wide majority of the muslim community. so i think again i don't think we should change the law one side or the other but there's something broader than that. i think this debate is very important to have in france. >> next question but that wasn't the question. i think we read of questions i guess if people want to comment and that's fine. go it. was there another question?

[inaudible] >> you've got to -- >> hi. i'm poly, reporter with "newsweek," and i've been covering the middle east conflict and isa specific about a year and a half two years. as a younger reporter i was kind of curious how you think the social mediation, and particularly twitter, have changed, and example with charlie hebdo so much of the original report and the breaking news is coming out of social media. i was sort of curious how that was different from france and the united states? i found a lot of american publications were pretty much giving all of their news through the aggregation of french publication tweets specially "le monde" them and the cover, the new cover was, of charlie hebdo after the attacks, the one

with mohammad on the front holding je suis charlie. that was distributed through the "le monde," through their twitter account but i was curious if you could speak to the social media age the special when so many think tanks are kind of saying that a lot of these jihadists are coming through social media and the france is now considering that the should be some kind of cap on the internet? is it a cap on youtube videos? is a cap on twitter? is there a limit as far as the journalistic aspect of the code because that's also many of us share information. >> sylvie, do you want to take that one? >> the issue with twitter and facebook is and other social media, is that they are being used by the terrorist groups to communicate and also to spread their propaganda in a very, very nasty way.

now, as i said we are only at the beginning of this. i don't know how you can really put a cap on this legally politically. it's a very complicated issue and also technologically. i mean, twitter has been closing a lot of accounts after those attacks. but, you know, you close one account and they open another one. i'm not an expert on this technology so i don't know how it can work technically but it's a huge issue. i'm struck by the fact that i mean, i know you have this issue here in the states, and barack obama was in the silicon valley the other day and had addressed

this. apparently the high-tech companies are being very very reluctant to help him on this to collaborate. but the french government has been specific at all so far. it is still very, very vague and i'm not sure they know what to do actually. >> floyd, just while we have the question, our tweeters as protected under the first amendment as "the new york times" on the wall street joe? >> i'm glad you asked that rather than the last question to me, which i'm 20 20 years too old and sure, but the answer to your question is yes. >> is that generally true in france sylvie, if you know? >> we don't have a first amendment. >> if i want to go on twitter and say and do anything i want is there any distinction between what "le monde" can write and what i can write because it is a newspaper and i'm not? >> well, that's also something which is being debated by legal experts, whether -- that's also

a new territory. google recently was the european court of justice when it sentenced it on the issue of the right to be forgotten, the european court of justice decided that google would be controller of you know, that's a new stages. it's not on the search engine. it's a new legal status. so again legally we are i think trying to find the right qualifications and the right responsibilities, so i don't think in france it's a very, we have found the solution jet. >> are there other questions? >> i would add that the fact that everyone is now press everyone is now an editor is going to have come it has not yet had, a significant import for the first amendment. and it may not all be good.

certainly issues on which the press, as press, has received the considerable protection, confidential sources for example, of the journalists is one where it seems to me there's no way that everybody that says something on the internet is going to get the same level of protection. and the result of that may well be, because i continue to believe as i answered a moment ago, that everyone will wind up with the same protection at the end of the day. that the result of that may be that the press, the press may wind up with less protection than it has now because it would just be impossible, or the judges will be unwilling to draw lines between the person in pajamas who's on the internet

all day and a great newspaper. in a perverse sort of way that could wind up hurting freedom of the press. >> another question from the audience. we've got a microphone coming. >> my name is gary cole. question for the panel. u.s. courts have traditionally interpreted freedom of speech with the rubric of saying that speech is not protected by yelling fire in a crowded theater. can you not make the distinction between depicting the prophet mohammed in the charlie hebdo or some other publication and the french comedian who offers for the killing of jews and violence against the jews? >> well, you can make the

distinction between what constitutes incitement to criminal conduct, and we do that. a direct advocacy of incitement to criminal conduct with a high likelihood that it will occur is not protected, for example, by the first amendment. but that's a pretty polar extreme of speech and my reaction justice holmes who wrote that phrase, falsely by the way, falsely crying fire in a crowded theater was in effect stabilizing what that was -- trivializing. we give more protection to speech, not something like that. there's nothing that is more protected under american law

than commentary about how the world ought to function. who ought to be elected how government ought to behave, and assessments of people. so under our law at least, i don't believe that the fire in a crowded theater notion really helps too much. because if anything it understates the level of first amendment protection that is given and is needed with respect to political or socially relevant speech. >> but if i go on television and suggest that a really good idea would be to kill all the first amendment lawyers in the u.s., would you think that kind of speech would be protected? it's just an example. >> yeah.

it was a cartoon once in "the new yorker" which showed the supreme court sitting around a table, and one of the justices says, you ever have a day when everything seems unconstitutional? [laughter] that's what your question suggests to me. >> just one thing. je suis charlie is smarter than that. he doesn't call for killing the jews. he, you know, that would be easy to qualify as a crime. he says this well known jewish journalist, it's a pity he didn't perish in the gas chamber, so that he was charged with right? then the last thing he did was he put on his twitter account -- [speaking french] -- the killer of the kosher supermarket.

and that can be, that fits into the glorification of terrorism charge. but then again that sentence can be interpreted in different ways. so, you know, it's difficult. it's not black and white. >> does his prosecution for this kind of ask make him more popular among -- >> yes. yes, absolutely. to go back to the issue of anti-semitism, there is a strong streak of anti-semitism in the muslim community, and in the arab world. i mean, there's no denial of this. so it's not the anti-semitism that we knew in france in the bashir regime, in the 20th century. it's a different one.

there is unfortunately the result is the same but the origin is different. dieudonne is very popular in some segments of the french society, that's true. and so the more you, the more he is prosecuted, the more popular he is yes, in those segments. >> other items questions could ask the two journalists come in deciding to publish after the murders, how much was your own newspapers security in fear? how much would you say are we putting our employees and others in harm's way by inviting a violent act against us? >> we didn't take this into account. no. we had a discussion. we had a debate, including in the newsroom among editors and also in the newsroom but that

was not really a factor, as the people who went to the january 11 rally didn't take into account the fact that there might be more attacks. this was something we thought we should do. >> it was a major factor. i mean danny pearl was my colleague. so we thought long and hard about it, and we have i think the journal has more reporters overseas and all other u.s. newspapers combined. we have a lot of people in harm's way all the time, so give it a great deal of thought. and so the decision to publish the cover of charlie hebdo, the cover after the attacks was made with great deal of consideration and deliberation. by the way though i received the "newsweek" reporter after i

was on bill marr the other day someone sent me tweeted to me that he wants to buy me a plane ticket to syria so you can enjoy watching the be beheaded. so my response was to re-tweet it. i think that's the only way to answer these people. and exposure for who they are. >> i am a former -- i have much more of it, which is that with the freedom of speech comes up live the responsibility especially for newspapers and media organizations. and while we discuss whether something should or should not be published newspapers and

organizations should have a policy, some principles that at the end of the data producing a curator prodicus goes by service to the public. so whether or not you publish a beheading was not your be a racial epithet, the new york times does not do that because they believe it gets license other people to use that over and over again. those are questions about this surge of public and your audience. and overtime because we do live in a digital age everybody can publish, but now becomes incumbent on the consumer to i to decide what best serves his or her purposes. and so if i i did question i would just go back to the journalist in terms of, what are your editorial policies of them publishing this type of information, and how are they centered? are the center to actually serve the public? >> no, it's the point you make is an excellent one. we are agents, we are essentially at the journal we are the institutions

safeguarding the freedom of the press. and at the same time we are curators of culture, and what is taboo and what is not to do and what and how taboos evolves by the way. so there are we are a family newspaper. so we will avoid foul language whenever possible. they are or by the way occasions when you cannot escape using an epithet a foul word if it is intrinsic to understanding the story. them when you reach those moments, a judgment has to be made as to whether you can you can communicate the same information without offering the the explicit language or the explicit images. i mean, all i would say is there is no science to this. it's editors sitting around a table making often very

difficult judgment calls. as i said you know i wrote the editorial on why we would not publish the cartoons back in 2006. after charlie hebdo, it seemed like a different set of considerations were in effect. and people sort of look for hard and fast and relatively simple rules for how these things are done, and the truth is there are none. what we tried to be a responsible adults making series of judgments about difficult questions. -- serious judgments. anyone who suggests there's one simple font are one way or all the other is just not engaging in a serious conversation. >> can i ask one less question? there are many americans who never heard of charlie hebdo before the murders. i've seen it many times in paris and candidly didn't read it. what's the difference from

someone like yourself and other educated french people to what they thought of it then, how they came to think of it and what is the future of specifically charlie hebdo? >> i was not a regular reader of charlie hebdo. my brother is a subscriber. he's a teacher and we had these discussions sometimes that would joke with him and say how can you read this macho like magazine? and he said you know he would explain to me because of the irreverence street -- streak, which is the hallmark of "charlie hebdo." and i would conclude by saying well, i'm glad you can read it. it's good news. go on and subscribe to it. i think this is something, i think it's average circulation was 60000 copies a week.

it was something which is not mass circulation by people are happy with it to be a round. it's an important part of our life. and the nothing is that those cartoonists were very famous in the general public. some of them wrote comics for children. not the same, with not the same drawings but, you know some of the cartoons or comics i read as a child included drawings from them. they were also invited to tv shows like talk shows and they withdraw while people were debating. so they were really popular figures in french culture in the french public. and now it's going to go on.

of course, that are, they've collected quite a lot of money but i don't know how much, how long they can go on with this money. but they are trying to put together a newsroom which can produce regularly the paper again. and i think they have the next issue is in a week i think is next week yes. they are working out of another resume -- news or the it will go on indefinitely. >> can i go on in a different direction? we did have national lampoon in this country for many, many years. >> and mad magazine. >> mad magazine was more for children, less pornographic. but we have south park which i think is her own version of "charlie hebdo." and do yourself a favor, there's a wonderful version to episode

of south park which revolves around mohammad in a bear suit while the figures of jesus buddha and moses were busy snorting cocaine, look at pornographic magazines and it is just so brilliant and so profound in so many ways. and i would say it's her version of "charlie hebdo," just with a greater degree of genius. >> i want to thank everybody and invite alan act up. thanks to everybody for interesting and lively discussion. [applause] >> senator barbara mikulski says she will not seek reelection to a sixth term. the 78 year-old maryland democrat made the announcement today in baltimore. she is the longest serving pope and in congress and the republicans took over since she chaired the appropriations committee. she tells reporters that she'll still have two years in her current term. she says she hasn't written the last chapter in her career.

senate democratic leader harry reid tweeted at his reaction this one thing i came to the senate with the barbara mikulski and i have had no better time -- no better friend than barbara mikulski. the house and senate return to capitol hill to the house gaveled in at noon each of her speeches and legislative work at two. they will debate long-term care to veterans. the senate will be gathered in in about an hour. they will consider what's negotiable the house on homeland security funding. also this week the keystone xl oil pipeline. you can see that debate on c-span2. of course, the house live on c-span. israeli prime minister benjamin netanyahu said that his plans to address congress are not aimed at disrespecting president obama. he spoke at the annual meeting of the pro-israel lobbying group, the american israel public affairs committee in washington. you can see that speech on a website, c-span.org. also to bar the prime minister

will address congress begin speaking to a joint meeting in the morning at 10:45 a.m. eastern. that speech was arranged by republican leaders without consulting the white house. prime minister netanyahu will be live on c-span again at 10:45 a.m. eastern. the supreme court heard oral our to last wednesday in a case testing weather clothing retailer abercrombie and fitch discriminate against a muslim woman and he declined to hire her because she wore a headscarf to clash with the company's dress code. ..

>> rather than just correctly understand the need for an accommodation. neither requirement -- >> what is the difference between knowing and correctly understanding? >> your honor, the testimony it's a fair question. the tenth circus perceived the difference. what the testimony was was that ms. cook assumed that she needed to wear the head scarf because she was religious, she figured the head scarf signified that it was a religious head scarf. what the tenth circuit was that was insufficient, what was needed was actual knowledge. our figure is 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. >> [inaudible conversations] >> i'm sorry. is that subjective, or is it even relevant? meaning the issue is whether

they failed to hire her because of a religious practice. whether the person thinks it is is the issue. and that's why -- [inaudible] >> 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 she needed to wear the head scarf for religious reasons and 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 -- >> but getting pack to justice scalia's 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 treatment case the whole idea was that action was taken because of religion. you knew. why are you making it so confusing? >> your honor i -- with respect to it's our position it's the

tenth circuit that's made it confusing. >> it's your position that -- your statement that you opened with is he must understand. you stay away from the word "know," and justice and scalia asked you why you did that. i can't understand your answer. >> the answer, your honor, is we think 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 tenth circuit said was that is not sufficient that what is needed is something more approaching certainty. that's not -- >> so that does raise the question. if yours is less than certainty how much less than certainty is it? suppose i'm an employer, and i say 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 can explain how these cases come up, i think it would be the best way to answer your question. the answer in a situation like

this in which it's an applicant applying for a position and the employer suspects, thinks two-thirds that 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 here ms. elaf would have been hired. alternatively, if the employer feels like there's enough concern about how she'd be able to perform, they can start a dialogue. that's what congress p intended. what they can't do is what they did here and assume through a stereotype that there were going to be need for accommodation and then say having assumed that, i don't have any obligation to actually try to accommodate -- >> is that so -- >> go ahead. >> is that true even if it's under 50%? in other words say the employer says, you know, i really don't know, but i think there's, like 50/50 chance or even a 40% chance that this person has a

religious, that has 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? >> i think, your honor that that's what they cannot do. but i do think -- >> doesn't really depend on what the percentage chance is. >> so i think -- >> less than certain it could be 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 or fire whatever, because of that chance. >> so, your honor, 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 that the applicant won't be able to comply in the future 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 would be religious, the right thing for the employer to do is to assume there isn't a religious problem to not engage in the stereotyping and assume the person could comply, and they would with somebody who was wearing a head scarf or something else -- >> 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 the pun a religious belief that they wouldn't accommodate? >> so, your honor, i don't intend to fight justice kagan hypothetically, and on the facts of this case, i think it's

really quite easy. 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 the hard case and why i'm sort of -- >> you're confusing me nor mousily. >> okay. >> would you tell me what it is you want? you just say he understands. that doesn't do anything for me. what, he understands, knows believes suspects? what other verbs do you need? >> so, your honor, the tests that the courts have adopted for more than two decades which is the test that we asked 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 -- >> that's -- >> that's the test that the courts of appeals -- >> i don't care what they've used that doesn't make any sense to me. >> but, your honor the reason why i think it makes sense in this case is because it's sufficient knowledge for you to

actually act upon it. remember if -- the critical point here for be 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 hire. >> didn't she did the person the first woman -- the person responsible for suring didn't she say -- for hiring, didn't she say to the district manager i think she's wearing this head scarf 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 head scarves. >> that's right, your honor. >> so it seems that the district

manager is, his point of view is head scarves are out. this particular woman was wearing one, so it doesn't matter the reason we don't accommodate head scarves. >> your honor, that's exactly what congress said when it enacted -- [inaudible] >> there is no law against such a rule. any employer can have a rule, we don't allow head scarves. and until someone applies for a job who for a religious reason wants to wear a head scarf 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 rule. you can have that rule. we do not allow our employees to wear head scarves. nothing wrong with that rule. >> that's correct, your honor. >> so the fact that this supervisor said that doesn't prove a violation by the 'em employer. >> well, i don't agree with

that, your honor. i think once the, once it's clear that the employee is, foods an accommodation of that rule, that's exactly what title vi requires. that's what the court addressed in -- it was a neutral rule that you had to work on the sabbath -- >> the supervisor did not have that knowledge? >> oh, no, your honor, that's not correct. and i took from justice ginsburg's hypothetical -- 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 cook said remember, summary judgment has now been granted against us so the evidence read in our favor what cook said was i told johnson 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 shouldn't begin a dialogue i think is what -- but i think that may promote stereotypes to a far greater degree. i'm not saying you have someone of middle eastern appearance who shows up with an employer with a beard, and abercrombie & fitch doesn't like beards they don't like their models as they call them, having beards. so you think it's better for him to sit there and start asking this applicant questions he would not is anyone else about religion? why are you wearing a beard? is there a religious reason for that? it seems your solution causes more problems. >> your honor two responses. first, i don't think it's right that the solution causes more problems because i don't think congress would have preferred that the person not get hired than the dialogue be begun. i think it's clear congress wanted an accommodation of the religious practice. but i also think that your honor's 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 have had a no facial hair policy, but they don't not pursue free agents that have a beard they assume they can shave once -- >> isn't it reasonable for players 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. i don't care if it's for religious reason or not. the guy shows up with a beard, i'm not going to hire him. >> that's the hard question i think justice kagan was asking. if your policy is 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 thus far, it's all said. if the question is when someone comes to my office with a weird and i just -- with a beard and

it's i just think it's the unkempt, i'm not going to hire them regardless i think that's the question that presents is it one-third, is it two-thirds? it's not the question presented here and quite candidly, it's not the kinds of cases we see. >> you could avoid those hard questions, whether it's understand, believe, suspect by adopting the rule that the court of appeals adopted here. and that is if you want to sue me for denying you a job for a religious reason, the burden is on you to say i'm wearing the head scarf 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've got 'em. >> did the employer tell her, did the employer tell her that it had this look policy that the head scarf would violate? how could she ask for something when she didn't know -- [inaudible] >> that's exactly the problem,

justice ginsburg and justice so lea yahoo! in response to your question the reason it's insufficient is it is simply not the case 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 she did not know there was a look policy that prohibited the head scarf. >> well, this is not the place to get into the facts, but i thought her friends told her to wear at least a colored scarf so the subject came up. >> but actually justice kennedy -- >> again we're not fact finders. >> no, but it's important, but that, in fact supports our position. what her friend said was there's no problem with a head scarf it just shouldn't be black. and so, if anything, she was on to notice that there was no problem with the head scarf. so i actually think it cuts exactly the other way. and, justice ginsburg, what

makes it particularly inappropriate, i think, to put the burden on the applicant here is that the 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 head scarf. so actually, this was a situation in which the employer itself could have put elaf on notice, and then it's a very different situation. if the employer says we don't allow head scarfs and then the employee doesn't say anything, i think that's a very different -- >> to get back to my beard case if it's 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 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 -- [inaudible] >> could you please answer my question, please? >> sure. part of the answer is 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 that is what congress -- >> so why can't the employer just simply say we have a look policy that doesn't permit beards? can you comply with that policy? >> absolutely your honor. >> [inaudible] reasons or no reasons it doesn't really matter why. >> there are 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 then hire them or if you're concerned about it, you can ask a specific question. the eeoc has made clear -- >> 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 --

>> so that doesn't cover anything that's not immediately apparent by the appearance. they can have a code of conduct that presumably would go through several pagesser ooh, are all -- pages, here are all of the things we require. any problem with them? >> your honor, i actually think that this is -- 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 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 okay 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 avoid the

stereotyping. however, if the employer wishes what the court said is that a bilateral dialogue is what title vii is designed to accomplish. so picking up on justice sotomayor's point, you could raise the policy. and this is not a crazy idea, this is -- >> wait a second could i -- he can 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 religious reason. i guess i could take off my head scarf or what not, but it would be very inappropriate, religiously uncomfortable is that a -- 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 your honor. that is not what this case is

about. because -- >> what is that? you cannot ask the question you're telling them to ask, can you do it? yes, i guess i could but -- >> 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 -- >> 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 lawsuit -- >> she said, yes, i could. she could. >> well if she could then she was hired. when she says actually, now it's quite uncomfortable, that's a request for an accommodation and she the employer need to go into a discussion just like you would if you said i need this time out to attend a religious ceremony. that's just the back and forth of everyday employer and

employee -- >> couldn't the employer say we have a policy, no beards or whatever, do you have any problem with that in why do you have to -- why does it have to be phrased "could you do it,"? do you have any problem with it? are you willing to do it? >> it's a matter -- i think what title vii is about, what this court has recognized and what certainly the eeo to c has recognized is the actually accommodation back and forth is quite a process. it's designed to be collaborative. 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. that dialogue never happened here, and that is the problem with the case, as we see it. >> the respondent says that you switched theories in mid screen, that you started out with a

refusal to accommodate theory and then you abandoned that. is that -- >> that is not correct, justice ginsburg. from the very beginning our theory that has been that the respondent violated title vii by refusing to accommodate ms. elan. 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 theory we have proceeded under on all of our cases here. there has been no switch. the phrase religious accommodation appears 14 times -- >> so that disparate treatment plus failure to -- >> so they have seized on the displait -- if i could a1r0eud a yes/no and explain our position, justice kennedy. the phrase used in the brief was a failure to accommodate is the kind of disparate treatment that title vii was designed to prevent. we felt that is correct and accurate. what the congress meant to do was put people who needed an

accommodation like ms. elaf 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 there's a failure to accommodate theory. we did not -- and to highlight the difference, 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 wished to avoid a 1981-a question a question in which no court has ever adopted their theory and which at no point in this litigation have are 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, it was the only source of damages. they never waived it. our pretrial brief said we're proceeding under 1981-a the district court' pretrial listed -- >> i'm sorry. again, i'm a little confused. i didn't know -- i read your complaint, and it says the responsibility refused to hire -- respondent refused to hire ms. elaf because she wears a hijab and -- [inaudible] i looked at your brief, 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 treatment in our own brief is just not credible. that has been the theory. they appealed -- that's how the damages were done they never raised it on appeal -- >> well suppose they had. their argument is that you get damages only for intentional. >> so, your honor no court has ever addressed that, but our position is -- and this is how the courts have uniformly applied it -- that a this is intentional discrimination under is the 81-a, although it's not a question before this court. this is, i'm sorry your honor, it's in the red brief on page 1a and it's 42usc1981-aa. it distinguishes between unlawful and intentional discrimination not practice that is unlawful because of its disparate impact. the failure is not a disparate impact claim for exactly the reason that justice sotomayor

has said. it's the intentional refusal to hire because of the religious practice that you could reasonably accommodate. and this is not, as the amicus brief, some of the amicus briefs have said, just a disparate impact -- >> i'm sorry to be obtuse. i don't know why you don't just concede this, a form of disparate treatment. say you do accommodate, it's a form of disparate treatment. i don't accommodate you because of -- >> so, your honor, i think disparate treatment as we've used it in the act, i just want to distinguish the different views because under a disparate treatment approach there's a -- as the lower courts have used it, you would have to show 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 it -- if i could reserve the balance of my time. >> thank you counsel.

[inaudible] >> mr. chief justice and may it please the court the premise of the eeoc's argument today, as i understand it, is that abercrombie acted because of the religious basis from ms. elaf's head scarf. that is not correct as a factual matter, and the eeoc's theory in its brief does not depend on any such assumption. the eeoc's theory in its brief is that anytime an employer suspects a possible conflict or correctly understands such conflict, at that point it is on notice and must offer a religious accommodation. and so if you imagine a situation -- which is not a at all -- >> 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 that they must accommodate and depart

from a religion-neutral policy based on a near suspicion of a concern. >> no that's not -- we go back to their position. it's very simple because you're mischaracterizing it. their position is if you believe that someone believes, knows -- a lot of adjectives -- that someone will need a religious accommodation, then -- and won't comply with your policy just ask them. you have a -- just the way justice alito said, you know? we don't permit facial hair on the floor. you have a problem with that? >> justice sotomayor, as an initial matter their theory in 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 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 individualized and personal nature of religion -- >> all right let's say four people show up for a job interview at abercrombie, and this is going to sound like a joke but, you know, it's not. [laughter] so the first is a man wearing a turban, the second is a man wearing a hat, the third is a muslim woman, the fourth is a catholic nun in a habit. now, do 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?

[laughter] >> 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 -- >>, in fact, what? >> group interviews where there are multiple applicants at a time. so i think the reality is it's a lot more difficult than the government imagines to start having these individualized 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 the particular garb is likely warn for religious purposes. however, i would direct the court to joint appendix 130 and 131 which contain pick which ares of the sort of head scarf ms. elaf was 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. >> >> well, that could be the case

but i want to know the answer to the question whether the employee has to say i'm wearing this because of a religious reason or if you're willing to anytime that there are some circumstances in which the employer is charged with that chong based on that they observe? >> no, your honor. i think there are some circumstances where it is 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's applying, from the applicant unless you receive direct, explicit notice that what she wants to wear is based on religion and she wants ap accommodation unless you receive direct explicit notice from her, you're home free, do what you want. now, in their question with presented they say in the last few words of describing it, we think that's wrong.

now, i agree that we have to say when 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 that 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 in. >> justice breyer, i think what you just described is a rule for all cases, and it's one that is entirely unadmin central for courts employers and applicants at like. >> it's unadmin central to say that if the employer believes, thinks this woman is religious and needs an accommodation and he's right well do something.

unless you have an excuse. why is that -- >> your honor, i believe that's unadmin central because the eeoc does not explain what level of certainty is required for a belief versus a suspecting -- >> oh, no, you have to prove this is correct, you have to prove he has a brief. we probably in -- he has a belief. we probably in 250,000 cases a year 80,000 go to trial proving somebody has a belief or another is probably an issue with 90% of them. now, i'm making that up, that number -- [laughter] nonetheless, i don't think it's uncommon in the law that you have to prove somebody believes something. so we say the standard of believing is like any other case. >> i don't think this is because you're dealing with something religious belief which is inherently personal to the individual. and to charge employers with -- to charge employers with title vii liability and require them to come to an understanding of whether a particular practice is

religious -- >> so suppose an employer just doesn't want to hire any jews, and somebody walks in 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 vii -- >> that has got to be against the law right? [laughter] 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 vii violation. what's going on here, however is that the employer seeks to apply a religion-neutral dress code. religion, according to johnson -- >> title vii would be right if

all that title vii did was prevent business discrimination, but it makes a religious practice, a refusal to accommodate a religious practice is itself a violation of title vii. so we have -- and 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, 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 an employer did not intentionally discriminate on the basis of a religious practice by enforcing a religion-neutral dress code that would have been -- >> but the thing about my question was is that what this statute does is to say that if you are, in fact wearing a head scarf for religious reasons that your neutral policy really doesn't matter.

it only matters if you face 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 head scarf. the fact that you don't know i'm wearing it for religious reasons, if you only kind of assume that because most people do wear head scarf for religious reasons, it shouldn't make any more difference than the hypothetical i gave. >> your honor, it 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 scar and religious practice. not even the eeoc is claiming there's a duty to i come date in that situation -- accommodate in that situation. what level of knowledge does the employer have to have? for 40 years the eeoc's own guidance has put the burden on the employee because only the employee -- >> the employee knows the rule.

here 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 this head scarf? then everything -- [inaudible] the employer doesn't hear. the employer has not given her notice of this look policy, so how is she supposed to intrude the question and as far as all appearances go it's fine she's wearing a head scarf? there's no look policy that the employee knows she's violating. >> justice ginsburg, i respectfully disagree with what went on here. ms. elaf knew enough about abercrombie to understand it had a dress code knew enough to -- >> they had a dress coed? i was not aware of that.

>> she testified she knew she would have to wear abercrombie-style clothes, that's joint appendix 23. >> she did. in fact, she came in with an aber carom by-tube shirt, right? >> she did. but she also knew they did not sell head scarfs -- >> she asked a friend who worked for abercrombie whether the head scarf 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 refused to accommodate her religious belief? >> justice sotomayor she asked a friend who in turn asked

another abercrombie employee who was not involved in the hiring process. and each the advice -- >> i think it was a store manager. >> who, but a store manager who was not involved in the hiring process. she had an opportunity before ms. cook who interviewed her to to ask any questions about the look policy after ms. cook described the policy at the interview -- >> did not mention the head scar ever? >> these interviews are scrummed interviews are -- >> show me where in the script. because i remember reading this, and she, in fact, said we don't discuss the look pole at the interview -- the look policy at the interview. >> if you look at joint amen kicks 33 and joint appendix 100-101, that's cook's testimony, that she head a summary of the look policy and gave ms. elaf an opportunity to ask any questions. >> but this was no mention of a head scarf in what she read. >> it did not specifically

mention the head scarf, however it described the look policy in general. it was a matter of common sense that abercrombie requires their employees to wear clothes that look like abercrombie style. >> let's say somebody comes in for an interview, and this person has no luck. if you wanted to, you know, draw the person who has the look this is the person who has the look. looks just like this mythical preppy or somebody who came off the beach in california -- [laughter] only one problem the person is wearing a black blouse which is against the abercrombie rules. now, would abercrombie fire -- 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 perp's appearance at -- the person's appearance at the interview. if i walked in wearing a suit

presumably, abercrombie could tell me when you come to work please don't wear the suit, please wear our clothes. but ld be equally rational to say if this person's wearing the institute, that's not compatible with our style. and likewise for the head scarf. johnson's testimony is he would have taken the same action for somebody who came into an interview wearing a head scarf, a baseball cap, a helmet or another religious symbol. >> he said specifically somebody comes in applies for a job with a yamaka, no questions asked. that was his testimony. >> that's right. and that shows religion is not the basis for the action here. rather, abercrombie at most was completely indifferent to -- >> but that doesn't work in a case like this. it's not a question of are you treating everybody the same, you have an obligation to accommodate people with religious practice or belief.

to say we would have treated somebody with a baseball cap the same way doesn't to me, seem responsive. >> for purposes of an intentional discrimination claim, it does matter that you would treat everybody the same, and that's the theory that the eeoc's pursuing here. >> as i understand it's intentional disinformation because you failed to accommodate. and i would submit that that is an incomprehensible understanding of what intentional discrimination means. >> again, how we get into all that if you want to add something to it. it seems we're in the kind of minutiae. what's wrong with saying if you correctly believe she's religious and needs accommodation, fine, that's the end of it? you're in the statute and move and excuse? 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 in fact, or didn't pay enough to

college graduates did he correctly believe that this applicant applied to -- 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. why is it our job here to say what the right way of proving correct belief is? i mean, we can say it's something wrong. you don't have to form late your correct belief just because she told you. you can argue that one. that's the only way to prove it. i'm open to that argument. i'd like to hear it. once we're beyond that if i'm right, 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 --

>> [inaudible] with respect. i'm with you only where they correctly believe or understand or know. those three things seem good enough to me. now, i repeated this three times, but i want to hear the answer why they're not good enough. >> the reason they're not -- justice breyer 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 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 -- >> 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 if you wear a black scarf of, it's because of a religious belief. >> your honor, i don't believe that she acted on that stereotype. i believe that johnson instructed her not to hire ms. elaf because she was noncompliant with the work policy. >> no, he hired her because under the look policy, he believed you could not accommodate that religious belief. >> i think -- >> or that religious practice.

>> i mean, that just seems very very unlikely. >> the case that the government gives us an example is one in which an employer learned of an applicant's religious practice from the applicant's reference -- >> and the applicant's reference didn't know the applicant? >> the applicant's reference did know the applicant. >> okay. >> and so that is traceable to the applicant. but the problem with -- >> 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 a 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 -- >> i am so totally confused. so he hears it from ms. cook, and that's not enough? >> that's right, because ms. cook herself testified that she did not know ms. elaf wore the head scarf for religious reasons. what we want to avoid is to start stereotyping about whether employers think, guess or suspect -- all they have to do is say -- >> all they have to do is say this is what our look policy is, do you have any problem with it? as justice alito pointed out a while back. don't have to probe anything about religion. i thought -- [inaudible] when he said i would do the same thing with a man who came in with a yamaka. so the person who came in with the yamaka got the same

treatment. sorry, i was -- [inaudible] i would want to hire you but i can't. that was the answer that he gave. there's no difference between the head scarf or the yamaka or the sheikh's you are the -- 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 -- if there's going to be a requirement for the job, doesn't the employer have an obligation to tell the employee what the job requirements are? >> no, your honor, not under title vii. title vii is not a civil service statute that requires employees who violate workplace rules to be given a chance to explain themselves before adverse action is taken -- >> this is what i don't

understand about your position with respect to this particular case. as i understand it, abercrombie does not have a policy that an interviewee must comply with the look policy, is that correct? >> the look policy itself does not apply at the interview. >> all right. so 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. maybe she's just having a bad hair day so so she comes in with a scar. but -- scarf. but she doesn't have any religious reason for doing that. would you reject her for that? no. because you assumed she was going to do it every day, and only reason why she would do it every day is because she has a religious belief. >> this had not been the theory

of the eeoc, and if she had been, they could have questioned johnson specifically about that. what would he have done if somebody would have come in wearing a ball cap? comparative evidence about what happened when people came in wearing nonreligious head wear? so the eeoc's theory, which it had every opportunity to prove has not been -- >> asked anything about nonreligious? title vii doesn't require accommodating baseball caps but it does require accommodating religious practices. so the employer is not, as i said, this was not just -- [inaudible] there's a religious practice, i must accommodate it. that's a distinct requirement. >> the premise of justice alito's question 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 covering.

so if the eeoc had wanted to prove the role of assumptions about religion -- >> so why when you just said they don't require people at the interview stage to conform to the look policy -- >> on its face the look policy itself did not require that, but johnson, the decision maker here in effect was judging people based -- >> you were about to tell us what the eeoc's theory of the case was. i was eager to the hear that. could you tell us? what 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 anytime 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. elaf'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 applicant or correctly understood as justice breyer prefers, correctly understood that the applicant wore 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 look policy applied at the interview is this would be a duty to accommodate -- there would be a duty to accommodate at the interview. the problem with that rule is that employers, norgd 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 -- >> well, i don't understand what you're about to saw. would you finish your -- to say. what would you finish your thoughts? >> the only way 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 explain -- >> you're essentially saying the problem with the rule is that it requires abercrombie to engage in what might be thought of as awkward conversation to ask some questions. now, people can disagree whether someone with can answer those questions, but you're saying we should structure the whole legal system to make sure there's no possibility of that conversation ever taking place. but the alternative to that rule is a rule where abercrombie just gets to say we're going to stereotype people and prevent them from getting the jobs. we'll never have the awkward conversation because we're just going to cut these people out and make sure they never become abercrombie employees. now, between those two options the option of using the stereotype to make sure somebody never gets a job and using the stereotype to have an awkward conversation, which does the statute seem to think the is the

worst problem? >> the problem is not having the awkward conversation, the problem is that the eeoc's rule would lead employers to treat people differently based on their religion which is precisely opposite of what title vii -- >> title vii requires them to treat people who have religious practice differently. you don't have to accommodate a baseball cap, you do have to accommodate a yamaka. >> but title vii requires that only after as the eeo crushes 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 eeoc raises here that we're going to have applicants who are completely in the dark about work policies -- >> okay, is this right? i've got i think, your argument. your argument is it may sound odd to want a specific life 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 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 can, 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 mess getting sued left right and center. have i got the essence of your argument? >> that's right. and even after the neutral sounding sort of question can you comply with the work rule even that is treating applicants differently -- >> no, that isn't the end of the world, perhaps. you would say, look, we have thousands of managers and, goodness knows, they're going to start getting resentful. i mean, i just want to be sure identify got the argument. >> that is the essence of it.

but part of the reason i think this is very significant is that under the eeoc's own regulations 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 eeoc will infer that -- >> this is such an unusual case because it's very rare that you have a interviewer like ms. 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 -- this young woman wasn't about to sue until she heard this information. most people don't pursue when 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 all almost all title vii case 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 stereotype 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 two factual points to clear up confusion in the record. first of all, there was some discussion about who, in the, you needed to comply with the look policy. the policy applies to all store employees, but applicants are not required to be in compliance at the tame of the interview. or there was some question about whether cook knew or didn't know about the head scarf. it is crystal clear that she did not know. the district court said it is -- i'm sorry, that elaf did or did not know. it is undisputed, this is at

97-a of the court's opinion, it is undisputed that cook did not tell her abercrombie would not permit models to wear head scarfs or black clothing. plaintiff's exhibit 4 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 rile. but the look policy is there and consistent with the testimony, it does not mention head scarfs. >> do you want to 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 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. the it's the tenth -- it's the tenth circuit that has applied these two new requirements. secondly, an employer can structure an interview to make

sure the critical rules are followed and the 'em p employer if it wants -- employer can make no assumptions about religion. justice sotomayor, i what's important about this case 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 accommodation would be needed and just never told. and it's precisely why -- >> in a lawsuit, of course. >> it doesn't, your honor -- [inaudible conversations] >> people find out in the course of discovery. >> they certainly could -- >> and it happens often, doesn't it? >> no, your honor i'm not sure that it does and i think that's what takes this a very -- what makes this a very important case. applicants are at a serious informational disvan. they don't know -- disadvantage. they don't know the work rules.

and in this case it's undisputed that she did not. and if i could disclose picking up on something justice cay tan was -- kagan was pointing out, what makes this case particularly strong is that this is belief plus an assumption where they acted on that belief and they assumed that she would need an accommodation from the work rule. the tenth circuit was wrong to conclude otherwise. >> thank you counsel. the case is submitted. >> well, the u.s. senate is about to gavel in on this monday. lawmakers are expected to debate whether to move forward on a motion 40 -- to go into negotiations with the house over homeland security spending. the house bill has provisions to block the president's immigration orders, the senate bill does not. last week congress gave itself one week to work out the differences. the department runs out of money this coming friday. a vote on moving forward on the motion to go to conference is

scheduled for 5:30 eastern today. see live coverage right here on c-span2, and see the house this afternoon when they gavel in on c-span. and now to live coverage of the u.s. senate. the president pro tempore: the senate will come to order. the chaplain dr. barry black will lead the senate in prayer. the chaplain: let us pray. guide us, great god for we are pilgrims in this land. we're weak but you're mighty. guide us with your powerful hands. transform our memory. so that whenever