's cable companies and brought you as a service. >> tomorrow, house majority leader kevin mccarthy and democratic whip address the 2015 america israel public affairs conference. live coverage begins at 5:00 p.m. eastern here on c-span. >> keep track of the republican congress and follow the new members through the first session. new congress, best access on c-span c-span2, c-span radio and c-span.org. on wednesday, the supreme court heard oral arguments in a case testing whether clothing retailer abercrombie & fitch discriminated against a muslim woman because she wore a headscarf.

the court decision could set a standard of one employers are expected to offer accommodations about when employers are expected to offer accommodations for religious practice or if it is the responsibility of the employee to inform business of a conflict. this is what our. -- one hour. >> the argument first this morning, the equal opportunity employment commission versus abercrombie & fitch stores. >> me it please the court. the 10th circuit imposed requirements that eliminated liability for the respondent's refusal to accommodate. first, the applicant herself verbally request the accommodations. second, that the employee know rather than correctly understand the requirement. by the requirement -- >> what is the difference? >> it is a fair question.

reject circuit perceives the difference -- the 10th circuit perceives the difference. mrs. smith figured that the headscarf signified that it was a religious headscarf. what the 10th circuit said was that was insufficient, what was needed was actual knowledge. our position is that when you assume when it signifies to you that in accommodation is needed that is sufficient notice. >> does that -- 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. that is why they acted. >> that is why we think that

makes this a straightforward case. what the employer did here is active on the assumption that she needed to wear the headscarf for religious reasons and later claimed refuge that it did not have efficient knowledge that sufficient knowledge or certainty for the, -- sufficient knowledge or certainty for the process. >> i think there is substantial forced to your argument that the employee does not have to mention this first but why do we use the term understand instead of know? action was taken because of religion, you know. why are you making it confusing? >> it is our position -- it is the 10th circuit that made it confusing. >> your statement that you opened with is that you must understand, you stay away from the word kniowow. >> the answer is that we think

there is sufficient knowledge, notice when somebody understands that when somebody assumes a practices religious and act upon it that that is sufficient. what the 10th circuit said is that that is not sufficient, what is needed is something approaching certainty. >> that does raise the question, if yours is less than certainty how much less is it? suppose i am an employer and i say i do not honestly know. i think, it is two out of three. is that sufficient? >> your honor, if i can explain that would be the best way to answer your question. the answer in a situation like this in which it is an applicant applying for a position and the employer suspects that there is a religious problem or conflict, the employer has to options. you can assume there is -- two

options. it can assume there is no conflict and higher on the merits in which case she would have been hired. alternatively if they think there is enough concern about how they would be able to perform victim start a dialogue. that is what -- performance a cam start a dialogue. that is what was intended. what they cannot do is assume there would be a need for accommodation and having assumed that say there is no need to make accommodation. >> is that true if it is under 50%? an employer says, i really do not know but i think that there is a 50-50 chance or even a 40% chance that this person has a religious this practices religious -- practice is religious than i do not feel like getting into accommodation stuff so i will not hire this person. >> i think that this is what

they cannot do. >> that would really be found on what the percentage chance is. certain, less than certain, as long as the employer says there is some chance and i am not going to hire or promote or fighter because of that insurance -- fire because of that chance. >> i would like to separate out to different situations that could arise, only one of which we think happens commonly. one is that the employer has a work and is concerned that the applicant will not be able to comply with the work rule because they perceive the person is religious. the dilemma that your honor is posing is a false one. if the employer really has a small understanding or thinks it is very unlikely, the right

thing for the employer to do is to assume that there is not a religious problem to not engage in stereotyping can assume the person would comply as they would was wearing a headscarf for non- -- >> i do not understand what you are fighting justice kagan's question. isn't the issue of the reason that they acted? the refused to hire someone because they have a 1% belief that they have a religious -- part of the own -- -- pardon the pun --a religious belief that they would not accommodate. >> the reason i am trying to separate the two is that i think the situation here is the easy case and i will get to the heart case. -- hard case. >> you are confusing me enormously.

you said he understands, but does not do anything for me. -- he does not -- that does not do anything for me. what other verbs do you need? >> the trust that the courts of appeals have adopted which is the cost -- test that the court of appeals have adopted which is the test that we have asked the court to adopt is that they permit the employer to understand the existence of a conflict. that is the test. >> that does not make any sense to me. >> the reason i think it makes sense in this case is if it is sufficient knowledge for you to act upon it -- remember, the critical point here for us is if they had not, if the employer had not assumed that this is religious, have not believed it, they would have hired her.

the default rule is hire. >> didn't she, didn't the person responsible for hiring, didn't she say to the district manager "i think she is learning the headscarf -- wearing the headscarf for religious reasons and that is why i am checking it out with you." the answer she got back is that it does not matter, we do not accommodate people who wear headscarfs. >> that is right, your honor. >> the district manager his point of view is headscarfs are out. this particular woman was wearing one for religious reasons but it does not matter, we do not accommodate.

>> i think that is right your honor and that is what congress says. >> any employer can have a rule, we do not allow headscarf's. and until somebody applies for a job for a religious reason wants to wear a headscarf and the employer knows it is for a religious reason or suspects or believes or understands whatever verb you want to use there has been no violation. you can have that rule. we do not allow employees to wear headscarfs. so the fact that the supervisor said that does not prove a violation by the employer. >> i do not agree with that. once it is clear that the employee needs an accommodation of that rule, that is exactly what title vii requires. that is what the court

addressed, a neutral rule that you have to work on the senate. -- sabbath. >> the supervisor did not have that knowledge. >> that is incorrect. i took from ginsburg's question that they conveyed to the supervisor that it was for a religious reason. there is a dispute in testimony about what c -- but what cook said is that i told johnson it was for religious reasons and johnson's head if we allow this than someone will pay themselves grain and we cannot -- paint themselves green and we cannot allow it. >> your solution that you suggested is that if there is some doubt, the employer should begin a dialogue. but i think that might promote stereotypes to a far greater degree than what you are

objecting to. someone of middle eastern appearance shows up for an interview with a beard and the employer does not like beards, they do not want the models having beards. he does not know of the beard is therefore a religious reason. is it better for him to start asking the applicant questions he would not ask anyone else about religion? why are you wearing a beard? seems that your solution causes more problems? >> i have two responses i want to say. first i do not think it is right that the solution causes more problems because i do not think that congress would have preferred that the person not be higher than a dialogue being begun. but i also think that your honor's hypothetical points out quite nicely, it is a somewhat artificial situation here. what the employer is saying is that i do not want a beard when the person is on the floor but that is not a reason to hire someone who walks in the door with a beard.

the new york yankees have for decades had a no beards policy but they do not refused to pursue free agents with beards. >> i am going to say can you shave it and he is going to say no. i don't care if it is for a religious reason or not, the guy shows up with a beard, i will not hire him. >> that is the hard question that justice kagan is asking and i think it is a tougher question. if your policy is that you have a work rule you are concerned i think that for the reasons thus far, it is all said. if someone comes to the office with a beard and i think it is unkempt, i will not hire them if they comply, that is the situation, one thirds or two thirds but it is not the one presented here and the cases that we see.

the much more or the work role -- are the work rule. >> you could avoid that was what the court of appeals did -- with what the court of appeals did where the burden is on you to say i am wearing the headscarf for a religious reason or i am wearing the beard for a religious reason. that eliminates all the problems once you notify the employer. then you have them. >> did the employer tell her that they have this policy that the headscarf would violate? oguchi as for something when she did not -- how could she ask for something when she did not know? >> that is exactly the issue. it is not the case that the superior knowledge is with the applicant in that situation, they are not on notice what the

work rules are and the controversy was uncontroverted that she did not know there was a policy prohibiting the headscarf. >> this is not the place to get into the facts but i thought her friend told her to wear at least a colored scarf when the subject came up. again, we are not factfinders. >> it is important your honor because that supports our position because what her friend said is that there is no problem with the headscarf, it should not be black. if anything she was on notice that there was no problem with the headscarf. i think it cuts the other way. justice ginsburg, what makes it particularly inappropriate i think to put the burden on the applicant is that it is the employer that structures the interview and the employer here read some birds and of the top -- version of the policy but did not mention the headscarfs.

of employer itself could have put her on notice and then it is a different situation. if the employer says i do not allow headscarves and the employee does not say anything, that is a different situation. >> to get back to the barricades, somebody with a middle -- beard case, somebody with a middle eastern appearance, you start a dialogue. in other words, he will be asking religious questions of some people. >> want not ask about religious -- why not ask about religious? >> could you answer my question? >> i do not think the employer does, the right approach to avoid the subject is to assume that the person of middle eastern descent, just like the person of not middle eastern dissent, -- descent as the

beard for personal reasons. . that is what is critical. >> why can't the employer simply say, we have a policy? can you comply with that? >> absolutely. >> reasons are no reasons, -- or no reasons, it does not matter. >> you can assume the person does not warrant for religious reasons that hire them or if you are concerned, you can ask a specific question, they have made clear. >> the question is supposed to be while you are wearing a beard? >> the question is supposed to be we have a work rule prohibiting facial hair on the floor. >> that does not cover anything immediately apparent. you would have a code of conduct with several pages, here are all of the things we require. any problem? >> your honor, i actually think

that the employer is at no risk of liability if he asks no questions but makes no assumptions and stereotypes. and that is why i do not think what your honor is hypothesizing turns out to be a problem in practice. what is going on is that in the cases, what we see is that you are talking about a work rule, you must wear pass at work and there is a religious objection you are talking about a longhair policy. of the employer does not have to run down the questions -- the employer does not have to run down the questions. however, if the employer wishes, a bilateral dialogue is what title vii is designed to accomplish. that you up on justice sotomayor's point, you could raise -- picking up on justice

sotomayor was point, you could raise the issue. >> can you do it, is that the only religious preference that has to be honored? i can but you know really i would like not to for a religious reason. i guess i could take off my headscarf or whatnot but it would be very inappropriate religiously uncomfortable. is that a -- you would knowledge and that the only accommodation that has to be made is an accommodation for -- or you would knowledge and got the only accommodation that has to be made is what they have to? >> that is not what the case is about. >> you cannot ask the question, can you do it? >> that is the exact dialogue that is supposed to happen.

that is what this court says should happen. for congress wanted when it asked a reasonable accommodation ireland is precisely for the employer and the employee -- >> she says that she can and later says, i couldn't but boy it is uncomfortable for me to do that -- could but boy it is uncomfortable for me to do that. would she have a lawsuit? >> she wouldn't. that is a request for an accommodation and she on the employer need to go -- and of the employer need to go into a discussion just like you needed time off for a religious conservat -- religious conversion ceremony. >> what if they say they have a policy, no beards, do you have a problem? why does it have to be at phrase, could you do it? are you willing to do it? >> what title vii is about and

what the court has recognized is the actual accommodation is quite a flexible process designed to be collaborative. there is not a fixed role that you have to freeze it this way or that way, the point is to initiate a dialogue and have that happened we would be talking about a different point about whether there is a reasonable accommodation that could be done. but 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 midstream. that you started out with a refusal to accommodate theory and then you abandoned that. >> that is not correct, justice ginsburg. from the very beginning our theory has been that the respondent violated title vii by

refusing to accommodate. that was the theory presented in the complaint, that we got judgment and damages. is the theory that we defended in the court of appeals and the theory we have proceeded under with all of the cases. there has been no switch, the phrase appears 14 times. >> disparate treatment plus failure to accommodate. >> if i could avoid a yes or no, explain on disparate treatment. the phrase used in the brief was that failure to accommodate is the kind of disparate treatment title vii was designed to prevent, we think that is correct and accurate. what congressman to do is to put people who need of accommodation -- meant to do is to put people who need an accommodation on the same footing as those who do not meet headgear. however, we recognize that the

eoc and lower courts have used disparate treatment in another way which is the failure to accommodate theory. to highlight the difference, disparate treatment would be that you allow all hats and not religious fats, that is disparate treatments -- religious hats, that is disparate treatments. we did not at any point in this case abandon or change the theory from the failure to accommodate. what the other side has done is a certain that not only that we did that but that we did it for some motive because we wish to avoid in 1981 -- a 1981a question which at no point did they raise even though 1981a was the only theory through which we could get damages we have a trial and it was the only source of damages. they never raised it, the preacher's trial said we were

proceeding and it was lifted. >> i'm sorry, again i am a little confused. i read your complaint and it says that the respondent refused to hire her because she wears a hijab and failed to accommodate religious belief by making an accommodation. i looked at your brief, i looked at the jury chart, and it seems like the two were tied. the failure to hire it because they refused to accommodate her -- was because they refused to accommodate her. >> that is correct. that 1981a magically became a part of the case is just not credible. that is how the damages were done, they never raised on appeal. >> supposed they had.

you get damages only for intentions. >> no court has ever addressed that but our position is and this is how the courts have applied it, that this is intentional discrimination under 1981a although that is not before the court because it distinguishes between -- i am sorry, this is in the red brief on page 1a, 42usc, it distinguishes between unlawful intentional discrimination, not a unlawful process. it is not a disparate impact claim and it is intentional discrimination for what justice sotomayor or sai -- so are -- justice sotomayor said. this is not as the amicus brief said a disparate impact claim. >> i do not know why you do not

concede that this is a form of disparate treatment. at another not accommodate you because of your religion disparate treatment -- i do not accommodate you because of your religion, disparate treatment. >> i just want to distinguish the different theories because under a disparate treatment approach as the lower courts have used it, you would have to show that it is because of the religious nature of the practice that you did not accommodate it. i allow hats for everyone but not if you have a religious hat . if i could reserve the balance of my time. >> thank you counsel. >> mr. chief justice and may it please the court. the premise of the eeoc argument today is that abercrombie acted

because of the religious basis for the headscarf. that is not correct as a factual matter and the eeoc theory does not depend on any such assumption. the eeoc says that anytime an employer suspects a conflict or correctly understands a conflict, at that point it is on notice and must offer religious accommodation. >> we do not have to offer a religious accommodation if they have a reasonable basis not to. follow the statute. you only have to accommodate if it is not a burden. >> that is true they have the undue burden defense but after the undue burden they must accommodate and it must depart from a religion neutral policy based on a mirror suspicion -- mere suspicion. >> go back to their position. is very simple but you are mischaracterizing it.

their position is that if you believe that someone believes -- a lot of adjectives -- that someone will need a religious accommodation, and will not comply with your policy, just ask them. just the way justice alito said. we do not permit facial hair on the floor. view of a problem with that? -- do you have a problem with that? >> as an initial matter, the theory of the risk does not depend on an assumption on whether the applicant would later comply with the rule. in the theory expressed in the brief, if they have a policy in which the look policy applied at the interview. >> you think the employee has to say i am dressed the way i am for a religious reason? >> not necessarily, however the

employer knowledge has to be traced to the employee in some way. in the difficulties that will come directly from the employee because of the personal nature of religion. >> four people show up for a job interview. is also like a joke but it is not -- this will sound like a joke but it is not. [laughter] the first is a man wearing a turban, e second is a hasidic man wearing a hat, before fourth is a catholic non-unit -- the fourth is a catholic nun in a habit. you think that they have to tell you that they are dressed in a religious life? -- religious way? >> one aspect is not a joke and that is that many of the interviews are in fact group interviews.

group interviews where there are multiple applicants at a time so i think the reality is that it is more different than the government imagines to have these individual dialogues. going to your point about those religious outfits, one can certainly imagine cases in which it is more obvious than others that of particular garb is likely worn for religious purposes. however i would direct the court if i could to join appendix 130 and 131 which contain pictures of the headscarf that she was wearing in this case. those sorts of situations where it is far more ambiguous whether a particular outward symbol is religious in nature or not, will be former common -- >> that could be the case but the answer to the question is that there are some circumstances

where the employer is trying to get that knowledge based on what they observe? >> i think there are some circumstances where it is more likely than others but the question before the court is to devise a rule across the board. >> i did not think that was the question. about the question presented was that the 10th circuit have said employer -- i thought the question presented was that each of the cap circuit have said employer, unless you receive direct -- terms circuit have said employer, unless you receive direct explicit notice from her, you are home free to do what you want. now, in the question presented they say in the last few words of describing it that we think that is wrong. now 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 they say here is what it is.

if the employer correctly infers correctly understands and i would add or correctly believes that the practices is religious and accommodation is necessary, that is it. that they have to accommodate unless they have the excuses under the statute. what is wrong with that? >> justice breyer, i think what you just described is a rule for all cases and one that is entirely on administer all for courts and employers and applicants -- unadministerable forecourts and employers and applicants. >> if they think they need the accommodation and they are right, do something unless you have an excuse. >> i believe that is unadministerable because --

>> you have to prove they have a belief. we have probably in 235 federal cases a year of the 80,000 that go to trial, proving a belief is an issue and 90%. -- in 90%. i am making that up but nonetheless it is not uncommon so we say that the standard of proof in you believe is like in any other case -- proving a belief is not like any other case. >> i do not believe it is like other cases because religious belief is personal. to charge employers with title vii liability and require them to come to an understanding of whether a particular practice is religious -- >> suppose an employer just does not want to hire any jews.

somebody watson and his name is no one goldberg and he looks kind -- somebody walks in and his name is noah goldberg. he does not say anything about being jewish but the employer operates under an assumption so he does not get a job. is that a violation? >> that is a disparate treatment violation. >> that has got to be against the law. [laughter] does not matter if the employer knows it for an absolute certainty. >> absolutely because in that situation what is relevant is the employer intent. if the employer intends to discriminate but is a title vii violation. -- that is a title vii violation. what is going on here is that they are attempting to imply -- apply a religious neutral dress code. >> that would be right if that was all title vii did but it makes a religious practice, a refusal to accommodate a

religious practice, is itself a violation of title vii. and that was done deliberately, was it not? so that religious practices would have to be accommodated. >> two points in response to that. we are not contending that religious practices do not have to be accommodated. what we are contending as an initial matter is that an employer does not intentionally discriminate for religious practice by enforcing a religion neutral dress code. >> the thing about my question is that what the statute does is to say but if you are wearing a headscarf for religious reasons -- that if you are running a headscarf for religious reasons your policy does not matter. except for that, it really does not matter, you just have to hire me, even if i am wearing a headscarf. the fact that you do not know i

am worried it for religious reasons, if you only assume that because people do, it should not make any more difference than in the hypothetical i gave. >> on that logic it would make no difference if the employer had absolutely no idea that the headscarf was born for religious reasons because it would still be a religious headscarf and a religious practice. not even the eeoc is claiming there is a duty to accommodate in that situation. the question for the court is, what level of knowledge does the employer have to have? for 40 years guidance has put burden to initiate on the employee. >> the employee knows the role. but -- rule. but the employee had no reason to think there was anything offensive. potency say, by the way i have -- how can she say, by the way

i have a religious reason for wearing the headscarf? the employer has not given her notice of the policy so how is she supposed to include the question went as far as she knows it is fine she is wearing a headscarf, there is no look policy she knows they are violating. >> i respectfully disagree with that description. she knew enough to understand that it had a dress code, new would have to unde -- knew enough in advance to ask -- >> i was not aware of that. >> she testified that she knew she would have to wear that style of clothes, that they did not sell headscarves. >> she came in with a shirt.

>> she knew they did not sell headscarves. >> she asked her friend whether the headscarf was a problem and befriends that no -- the friend said no. so why would she suspect that if she is qualified and has the personality of your looking for in his dressed appropriately, -- they are looking for and is dressed appropriately that the company would fail to hire her because they refused to accommodate? >> she asked a friend who in turn asked another employee not involved in the hiring process. >> for was these or manager. -- i think it was the store manager. >> but not one involved in the

hiring process. she had the opportunity to ask questions about the look policy. >> did not mention the headscarf? >> the interviews are scripted interviews. >> show me in the script because i remember reading this and she in fact said we do not discuss the look policy at the interview. >> if you look at joint appendix 33 and joint appendix 100 to 101, that is cook's testimony that she read the policy. >> there was no mention of the headscarf. >> and did not specifically mention the headscarf that it describes the look policy in general -- but it describes the look policy in general. it is a matter of common sense that the company requires them to where clothing in the style -- wear clothing in the style.

>> someone comes in for an interview and i have the look -- they have the look. looks like this mythical preppie . [laughter] only one problem, this person is wearing a black blouse which is against the rules. would they 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 do not think abercrombie needs to make that assumption about what the person would do later to make a judgment based on the appearance at the interview. if i walked into an abercrombie interview wearing a suit, presumably they could tell me when you come to work, please do not wear the suit. but it would also be equally rational for abercrombie to say this person is coming in wearing a suit and that is not compatible.

likewise with the headscarf. johnson's testimony which they did not challenges that he would have taken the same action for someone who came in with a headscarf, a baseball cap, a helmet, or another religious symbol. >> somebody comes in and applies for a job with a yarmulke, no question that violates the policy. that is the testimony. >> what it shows is that religion is not the basis for the action. abercrombie was at most completely indifferent. >> it is not a question of if you are treating everybody the same, you have an obligation to accommodate people with a particular belief. that it would have treated somebody with a baseball cap the same way, that is not responsive. >> for purposes of an intentional discrimination claim, it doesn't matter and that -- does matter and that is the theory the eeoc is pursuing.

>> it is in control discrimination because you failed to accommodate -- intentional dissemination because you failed to accommodate. >> that is a misunderstanding. >> it seems we are in minutia. what is wrong with saying that if he correctly believes that she is religious, fine, that is the end of it, you are in the statute. is correct police can arise in a thousand context -- a correct belief can arise in a thousand contexts. did he correctly believe the drug was heroine? did the manager you are trying to fire, did he correctly believe that this applicant graduated from princeton? that is abercrombie. [laughter] did he correctly believe that he had authority under the

delegation of agency to sign a check? there are thousands of things. while using our job here to say what the right way -- why is it our job here to say the right way of proving belief? is not have to formulate the correct believe just because she told you, you can argue that one. i am open to that. once we are beyond that, why do we have to say? >> in this context, suspecting a possible conflict will inevitably lead employers -- >> i am with you with respect. i am with you only where they correctly believe that. or understand. or know. those three things seem good enough for me.

i have repeated this three times but i want to hear the answer why they are not good enough. >> reason, -- the reason justice breyer, is that there is no way the employer can no about a religious practice -- know about a religious practice unless the information is traceable to the employee and having the standard will inevitably lead employers to stereotype because a factfinder might later -- >> isn't that what cook says she did? she saw her in a scarf and she assumed that it was worn because of religious beliefs so she acted on a stereotype. that if you were a black scarf it is because of a religiously -- ware -- wear a black scarf, it

is because of a religious belief. >> johnson instructed her to not hire her because of the book policy. >> no it is because they believed they could not accommodate that religious belief. that religious practice. >> i think the reason that he did not hire her, joint appendix 134, is that she was not compliant with the look policy. >> now you have me interested in this. when you mean traceable with the woman it is pretty hard to think of a case where it would not be. i can imagine a case for you found out about this woman from an fbi agent who was making it up but that seems unlikely. >> the case the government gives as an example is one where the employer learned from the applicants reference --

applicant's reference. >> they did not know the applicant? >> they did know the applicant and that was traceable to the applicant. >> i am still confused. you do not think that there could ever be discrimination based on a neutral policy because what does it matter if she told him that this was because of religious belief? if he is only firing her or not hiring her because of the look policy then he has not discriminated. >> if you had told him this is for religious belief -- she had told him this is for religious belief there would be a duty to accommodate but the question here -- >> i am confused. she hears it from ms. cook and that is not enough? >> she testified that she did

not know that she wore the headscarf for religious reasons. what we want to avoid as a rule that leads employers to stereotype about whether they suspect that somebody is doing something -- >> only have to do is say this is -- all they have to do is say this is what they look policy is, do you have a problem with this? when he said, i would do the same thing with a man who came in with a yarmulke, became in with the yarmulke, he got the same treatment -- he came in with the yarmulke, he got the same treatment. i would want to hire you but i cannot. that was the answer that you gave so there is no difference between a headscarf or a yarmulke or a turbine.

-- turban. >> to answer one of the policy, that is not a solution because it is asking employers to treat applicants differently based on stereotypes or assumptions. >> it could be a requirement for the job doesn't the employer have an obligation to tell the employee with the job requirements are? >> no, not under title vii. title vii is not a civil service statute that requires applicants or employees to violate rules to have a chance to explain themselves before adverse action is taken. >> this is what i do not understand about your position for this case. as i understand it ever probably doesn't -- abercrombie does not have a policy that the interviewee needs to comply to the look policy? >> that is correct.

>> there would be no reason for not hiring the individual unless you assumed that she was going to wear a scarf everyday. just because she wore a headscarf on that one day would not mean that she was going to wear it every day. maybe she was just having a bad hair day so she comes in with a headscarf. but she does not have a religious reason. you reject or for that? -- her for that? the reason she was rejected is because you assume that she would do it every day because of a religious reason. >> but has not been the eeoc theory of the case and if it had been, there would have been ways to prove that. we could have questioned johnson specifically about that -- very good have questioned johnson specifically about that -- they could have questioned johnson

specifically about that. the theory has not been that johnson -- newmont >> it does not say anything about nonreligious. -- johnson >> it does not say anything about nonreligious. it does not require accommodating based all caps. -- baseball caps. that is a discrete requirement. >> the premise of the question as i understood it is that abercrombie only did not hire this person because you have scarf religious and what i am suggesting is that abercrombie might well have not hired anyone who wore any head cover. if the eeoc wanted to prove that -- >> you just said they do not require people at the interview stage to conform to the look policy. >> on its face the look policy

does not require that but johnson in effect was judging people. >> you were about to tell us would be eeoc theory of the case was. -- what the eeoc theory of the case was. i and yo -- and eager to hear that. >> there is duty to accommodate a religious practice anytime the employer has a correct understanding or suspicion of that practice. the theory has not been that abercrombie acted based on assumptions about the religion. i think one way that we know that it is, let's assume that the policy did apply at the interview. under the eeoc theory, if the interviewer suspected that the applicant or correctly understood as justice breyer prefers, though the applicant wore it for religious purposes, there would be a duty to accommodate.

regardless of whether abercrombie did or did not make assumptions. if the policy apply to the interview, there would be a duty to accommodate based on that understanding. the problem with that rule is that employers to protect themselves in the future from having a jury find that they must have correctly understood that a particular -- >> what is the difference between that? >> could you finish your thought? >> the only way that employers could protect themselves is by training managers to stereotype about possible religious beliefs because a judge or jury might later find that abercrombie correctly understood or must have correctly understood under an objective test that they do not disclaim. >> you are essentially saying that the problem with the rule is that requires abercrombie to

engage in an awkward conversation. people can disagree about whether one can ask those questions in a way that is not awkward but you were saying we should structure of the legal system to make sure there is no possibility of that taking place. the alternative to that rule is one where abercrombie gets to say, we are going to stereotype people and prevent them from getting jobs. we will never have the awkward conversation because we will cut these people at and make sure they never become employees -- out and make sure they never become employees. between these options never getting the job and having the conversation, which is the worst problem in the statute? >> the problem is not having awkward conversations, the problem is that the eeoc rule would lead employers to treat people differently based on religion which is precisely the opposite of title vii. >> title vii would want them to

treat people with religious practices differently. you do not have to accommodate a baseball cap, you do have to accommodate yarmulke. >> only after the employee puts religion on the table. title vii does not want employers to make the judgment before the employee raises the issue. the concern the eeoc raises fear that we will have applicants completely in the dark has not been borne out. >> i have your argument. it may be odd to look for a special rule with believers. there are millions of people were practicing one religion or another, you get a clue of that from the name or the dress or whatever it is. whatever we have such a person implied -- applying, and they do not say anything, we will get

sued. and we do not want all of those lawsuit. isn't that a burden, if you want the accommodation, tell us. we get to administrative issues tell us. we will be in an administrative mess. >> even asking the neutral sounding sort of questions, can you comply with the work role, that is treating applicants -- wulem, -- rule, that is trading applicants differently. >> i just want to be sure i have the argument. >> that is the essence of it but part of why doesn't it is significant is that under eeoc regulations, -- why i think it is significant is that under eeoc regulation, if they ask and

then hire them for a different reason, the eeoc will infer. >> this is unusual because it is rare when you have an interviewer like mrs. cook who is honest. [laughter] the only reason there is a suit is that she was honest and came in and told somebody else. the stunt woman was not about to sue until she heard the information -- this young woman was not about to sue until she heard this information. if you have a policy that conflicts with religious practice and the person knows that you will wear a yarmulke, you might get sued. >> many if not all title vii cases do originate without any sort of admission by the employer about what the reason was for not hiring the individual. and i think that the rule that places a burden on employers to stereotype and raise these issues is one that will

undermine the purposes of title vii. >> you have five minutes left. >> thank you mr. chief justice. i would like to make two quick factual points to clear up the record. first of all there was discussion about whether you needed to comply with policy. i point the court to 94a the policy applies to all store employees but applicants are not required to be in compliance at the time of the interview. there was some question about whether cook knew it is crystal clear that she did not know. -- that eloth did or did not know. it is undisputed that cook did not tell her. they look policy -- the look pli

is exhibit forcy -- policy is exhibit four. consistent with the testimony it does not mention headscarves. >> the administrative argument? >> i think that cuts in our favor. first of all, the suggestion that there are problems is not plausible, this has been the rule for two decades. it is the 10th circuit that for the first time has imposed new requirements. second, i do not think it is un it a minister -- un administerable. the employer can make no assumptions about religion. justice sotomayor, why we think the case is important is

precisely that it is unusual. what is unusual is that the applicant find out -- found out why she was not hired. . the time the person just never finds out that no one -- most of the time the person just never finds out. it is precisely why -- >> in a lawsuit, of course. >> they certainly could. >> and it happens often. >> i am not certain it does and that is why this is the case. applicants are at a serious informational disadvantage. they do not know the work rules and in this case it is undisputed that she did not. if i could close with something that justice kagan was pointing out, that the background of title vii is that belief is sufficient.

what makes this case strong is that this is belief plus an assumption be acted on that belief and assume she would need an accommodation. -- very active on this belief and assumed it she would need an accommodation. >> the case is submitted. >> coming up tonight on c-span, a discussion on press freedom in how it is affected by the terrorist threat. when a look at the announcer: the french american foundation recently held a discussion on radicalism on press freedom. they talk about january's deadly terrorist attack at the french satirical magazine "charlie hebdo" and how the press has