U.S. Supreme Court Pennsylvania Coal Co. v. Mahon, 260
U.S. 393 (1922) Pennsylvania Coal Company v.
Mahon No. 549 Argued November 14,
1922 Decided December 11,
1922 260
U.S. 393 ERROR TO THE SUPREME COURT OF THE
STATE OF PENNSYLVANIA Syllabus 1. One consideration in deciding whether limitations on private
property, to be implied in favor of the police power, are exceeded,
is the degree in which the values incident to the property are
diminished by the regulation in question, and this is to be
determined from the facts of the particular case. P. 260 U. S.
413 .

															2. The general rule, at least, is that, if regulation goes too
far, it will be recognized as a taking for which compensation must
be paid. P. 260 U. S.
415 .

															3. The rights of the public in a street, purchased or laid out
by eminent domain, are those that it has paid for. P. 260 U. S.
415 .

															4. Where the owner of land containing coal deposits had deeded
the surface with express reservation of the right to remove all the
coal beneath, the grantees assuming the risk and waiving all claim
to damages that might arise from such mining, and the property
rights thus reserved, and contracts made, were valid under the
state law, and a statute, enacted later, forbade mining in such a
way as to cause subsidence of any human habitation or public street
or building, etc., and thereby made commercially impracticable the
removal of very valuable coal deposits still standing unmined, held, that the prohibition exceeded the police power,
whether viewed as a protection to private surface owners or to
cities having only surface rights, and contravened the rights of
the coal owner under the Contract Clause of the Constitution and
the Due process Clause of the Fourteenth Amendment. * P. 260 U. S.
413 .

															274 Pa.St. 489 reversed.

															Error to a decree of the Supreme Court of Pennsylvania, for the
defendants in error, in their suit to enjoin the Coal Company from
mining under their property in such a way as to remove supports and
cause subsidence of the surface and of their house. Page 260 U. S. 412 MR. JUSTICE HOLMES delivered the opinion of the Court.

															This is a bill in equity brought by the defendants in error to
prevent the Pennsylvania Coal Company from mining under their
property in such way as to remove the supports and cause a
subsidence of the surface and of their house. The bill sets out a
deed executed by the Coal Company in 1878, under which the
plaintiffs claim. The deed conveys the surface, but, in express
terms, reserves the right to remove all the coal under the same,
and the grantee takes the premises with the risk, and waives all
claim for damages that may arise from mining out the coal. But the
plaintiffs say that, whatever may have been the Coal Company's
rights, they were taken away by an Act of Pennsylvania, approved
May 27, 1921, P.L. 1198, commonly known there as the Kohler Act.
The Court of Common Pleas found that, if not restrained, the
defendant would cause the damage to prevent which the bill was
brought, but denied an injunction, holding that the statute, if
applied to this case, would be unconstitutional. On appeal, the
Supreme Court of the State agreed that the defendant had contract
and property rights protected by the Constitution of the United
States, but held that the statute was a legitimate exercise of the
police power, and directed a decree for the plaintiffs. A writ of
error was granted bringing the case to this Court.

															The statute forbids the mining of anthracite coal in such way as
to cause the subsidence of, among other Page 260 U. S. 413 things, any structure used as a human habitation, with certain
exceptions, including among them land where the surface is owned by
the owner of the underlying coal and is distant more than one
hundred and fifty feet from any improved property belonging to any
other person. As applied to this case, the statute is admitted to
destroy previously existing rights of property and contract. The
question is whether the police power can be stretched so far.

															Government hardly could go on if, to some extent, values
incident to property could not be diminished without paying for
every such change in the general law. As long recognized, some
values are enjoyed under an implied limitation, and must yield to
the police power. But obviously the implied limitation must have
its limits, or the contract and due process clauses are gone. One
fact for consideration in determining such limits is the extent of
the diminution. When it reaches a certain magnitude, in most if not
in all cases, there must be an exercise of eminent domain and
compensation to sustain the act. So the question depends upon the
particular facts. The greatest weight is given to the judgment of
the legislature, but it always is open to interested parties to
contend that the legislature has gone beyond its constitutional
power.

															This is the case of a single private house. No doubt there is a
public interest even in this, as there is in every purchase and
sale and in all that happens within the commonwealth. Some existing
rights may be modified even in such a case. Rideout v.
Knox, 148 Mass. 368. But usually, in ordinary private affairs,
the public interest does not warrant much of this kind of
interference. A source of damage to such a house is not a public
nuisance even if similar damage is inflicted on others in different
places. The damage is not common or public. Wesson v. Washburn
Iron Co., 13 Allen 95, 103. The extent of Page 260 U. S. 414 the public interest is shown by the statute to be limited, since
the statute ordinarily does not apply to land when the surface is
owned by the owner of the coal. Furthermore, it is not justified as
a protection of personal safety. That could be provided for by
notice. Indeed, the very foundation of this bill is that the
defendant gave timely notice of its intent to mine under the house.
On the other hand, the extent of the taking is great. It purports
to abolish what is recognized in Pennsylvania as an estate in land
-- a very valuable estate -- and what is declared by the Court
below to be a contract hitherto binding the plaintiffs. If we were
called upon to deal with the plaintiffs' position alone, we should
think it clear that the statute does not disclose a public interest
sufficient to warrant so extensive a destruction of the defendant's
constitutionally protected rights.

															But the case has been treated as one in which the general
validity of the act should be discussed. The Attorney General of
the State, the City of Scranton, and the representatives of other
extensive interests were allowed to take part in the argument
below, and have submitted their contentions here. It seems,
therefore, to be our duty to go farther in the statement of our
opinion, in order that it may be known at once, and that further
suits should not be brought in vain.

															It is our opinion that the act cannot be sustained as an
exercise of the police power, so far as it affects the mining of
coal under streets or cities in places where the right to mine such
coal has been reserved. As said in a Pennsylvania case, "For
practical purposes, the right to coal consists in the right to mine
it." Commonwealth v. Clearview Coal Co., 256 Pa.St. 328,
331. What makes the right to mine coal valuable is that it can be
exercised with profit. To make it commercially impracticable to
mine certain coal has very nearly the same effect for
constitutional purposes as appropriating or destroying it. This Page 260 U. S. 415 we think that we are warranted in assuming that the statute
does.

															It is true that, in Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 , it
was held competent for the legislature to require a pillar of coal
to the left along the line of adjoining property, that with the
pillar on the other side of the line would be a barrier sufficient
for the safety of the employees of either mine in case the other
should be abandoned and allowed to fill with water. But that was a
requirement for the safety of employees invited into the mine, and
secured an average reciprocity of advantage that has been
recognized as a justification of various laws.

															The rights of the public in a street purchased or laid out by
eminent domain are those that it has paid for. If in any case its
representatives have been so short sighted as to acquire only
surface rights without the right of support, we see no more
authority for supplying the latter without compensation than there
was for taking the right of way in the first place and refusing to
pay for it because the public wanted it very much. The protection
of private property in the Fifth Amendment presupposes that it is
wanted for public use, but provides that it shall not be taken for
such use without compensation. A similar assumption is made in the
decisions upon the Fourteenth Amendment. Hairston v. Danville
& Western Ry. Co., 208 U. S. 598 , 208 U. S. 605 .
When this seemingly absolute protection is found to be qualified by
the police power, the natural tendency of human nature is to extend
the qualification more and more, until at last private property
disappears. But that cannot be accomplished in this way under the
Constitution of the United States.

															The general rule, at least, is that, while property may be
regulated to a certain extent, if regulation goes too far, it will
be recognized as a taking. It may be doubted how far exceptional
cases, like the blowing up of a house to stop a conflagration, go
-- and, if they go beyond the general rule, Page 260 U. S. 416 whether they do not stand as much upon tradition as upon
principle. Bowditch v. Boston, 101 U. S.
16 . In general, it is not plain that a man's misfortunes
or necessities will justify his shifting the damages to his
neighbor's shoulders. Spade v. Lynn & Boston R.R. Co., 172 Mass. 488, 489. We are in danger of forgetting that a strong
public desire to improve the public condition is not enough to
warrant achieving the desire by a shorter cut than the
constitutional way of paying for the change. As we already have
said, this is a question of degree -- and therefore cannot be
disposed of by general propositions. But we regard this as going
beyond any of the cases decided by this Court. The late decisions
upon laws dealing with the congestion of Washington and New York,
caused by the war, dealt with laws intended to meet a temporary
emergency and providing for compensation determined to be
reasonable by an impartial board. They were to the verge of the
law, but fell far short of the present act. Block v.
Hirsh, 256 U. S. 135 ; Marcus Brown Holding Co. v. Feldman, 256 U.
S. 170 ; Levy Leasing Co. v. Siegel, 258 U. S. 242 .

															We assume, of course, that the statute was passed upon the
conviction that an exigency existed that would warrant it, and we
assume that an exigency exists that would warrant the exercise of
eminent domain. But the question at bottom is upon whom the loss of
the changes desired should fall. So far as private persons or
communities have seen fit to take the risk of acquiring only
surface rights, we cannot see that the fact that their risk has
become a danger warrants the giving to them greater rights than
they bought. Decree reversed. * The following summary of the statute involved is taken from
the opinion of the Pennsylvania Supreme Court:

															The statute is entitled: "An act regulating the mining of
anthracite coal; prescribing duties for certain municipal officers;
and imposing penalties."

															Section 1 provides that it shall be unlawful

															"so to conduct the operation of mining anthracite coal as to
cause the caving-in, collapse, or subsidence of (a) any public
building or any structure customarily used by the public as a place
of resort, assemblage, or amusement, including, but not being
limited to, churches, schools, hospitals, theatres, hotels, and
railroad stations; (b) any street, road, bridge, or other public
passageway dedicated to public use or habitually used by the
public; (c) any track, roadbed, right of way, pipe, conduit, wire,
or other facility used in the service of the public by any
municipal corporation or public service company as defined by the
Public Service Company Law; (d) any dwelling or other structure
used as a human habitation, or any factory, store, or other
industrial or mercantile establishment in which human labor is
employed; (e) any cemetery or public burial ground."

															Sections 2 to 5, inclusive, place certain duties on public
officials and persons in charge of mining operations to facilitate
the accomplishment of the purpose of the act.

															Section 6 provides that act

															"shall not apply to [mines in] townships of the second class
[ i.e., townships having a population of less than 300
persons to a square mile], nor to any area wherein the surface
overlying the mine or mining operation is wild or unseated land,
nor where such surface is owned by the owner or operator of the
underlying coal and is distant more than one hundred and fifty feet
from any improved property belonging to any other person."

															Section 7 sets forth penalties, and § 8 reads: "The courts of
common pleas shall have power to award injunctions to restrain
violations of this act." P.L. 1921, p. 1198.

															MR. JUSTICE BRANDEIS dissenting.

															The Kohler Act prohibits, under certain conditions, the mining
of anthracite coal within the limits of a city in such a manner or
to such an extent

															"as to cause the . . . Page 260 U. S. 417 subsidence of . . . any dwelling or other structure used as a
human habitation, or any factory, store, or other industrial or
mercantile establishment in which human labor is employed."

															Coal in place is land, and the right of the owner to use his
land is not absolute. He may not so use it as to create a public
nuisance, and uses, once harmless, may, owing to changed
conditions, seriously threaten the public welfare. Whenever they
do, the legislature has power to prohibit such uses without paying
compensation, and the power to prohibit extends alike to the
manner, the character, and the purpose of the use. Are we justified
in declaring that the Legislature of Pennsylvania has, in
restricting the right to mine anthracite, exercised this power so
arbitrarily as to violate the Fourteenth Amendment?

															Every restriction upon the use of property imposed in the
exercise of the police power deprives the owner of some right
theretofore enjoyed, and is, in that sense, an abridgment by the
state of rights in property without making compensation. But
restriction imposed to protect the public health, safety or morals
from dangers threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious use. The property
so restricted remains in the possession of its owner. The state
does not appropriate it or make any use of it. The state merely
prevents the owner from making a use which interferes with
paramount rights of the public. Whenever the use prohibited ceases
to be noxious -- as it may because of further change in local or
social conditions -- the restriction will have to be removed and
the owner will again be free to enjoy his property as
heretofore.

															The restriction upon the use of this property cannot, of course,
be lawfully imposed unless its purpose is to protect the public.
But the purpose of a restriction does not cease to be public
because, incidentally, some private Page 260 U. S. 418 persons may thereby receive gratuitously valuable special
benefits. Thus, owners of low buildings may obtain, through
statutory restrictions upon the height of neighboring structures,
benefits equivalent to an easement of light and air. Welch v.
Swasey, 214 U. S. 91 . Compare Lindsley v. Natural Carbonic Gas Co., 220 U. S.
61 ; Walls v. Midland Carbon Co., 254 U.
S. 300 . Furthermore, a restriction, though imposed for a
public purpose, will not be lawful unless the restriction is an
appropriate means to the public end. But to keep coal in place is
surely an appropriate means of preventing subsidence of the
surface; and ordinarily it is the only available means. Restriction
upon use does not become inappropriate as a means merely because it
deprives the owner of the only use to which the property can then
be profitably put. The liquor and the oleomargine cases settled
that. Mugler v. Kansas, 123 U. S. 623 , 123 U. S.
668 -669; Powell v. Pennsylvania, 127 U.
S. 678 , 127 U. S. 682 . See also Hadacheck v. Los Angeles, 239 U.
S. 394 ; Pierce Oil Corporation v. City of Hope, 248 U. S. 498 . Nor
is a restriction imposed through exercise of the police power
inappropriate as a means, merely because the same end might be
effected through exercise of the power of eminent domain, or
otherwise at public expense. Every restriction upon the height of
buildings might be secured through acquiring by eminent domain the
right of each owner to build above the limiting height; but it is
settled that the state need not resort to that power. Compare
Laurel Hill Cemetery v. San Francisco, 216 U.
S. 358 ; Missouri Pacific Railway Co. v. Omaha, 235 U. S. 121 . If,
by mining anthracite coal, the owner would necessarily unloose
poisonous gases, I suppose no one would doubt the power of the
state to prevent the mining, without buying his coal fields. And
why may not the state, likewise without paying compensation,
prohibit one from digging so deep or excavating so near the
surface, as to expose the community to Page 260 U. S. 419 like dangers? In the latter case, as in the former, carrying on
the business would be a public nuisance.

															It is said that one fact for consideration in determining
whether the limits of the police power have been exceeded is the
extent of the resulting diminution in value, and that here the
restriction destroys existing rights of property and contract. But
values are relative. If we are to consider the value of the coal
kept in place by the restriction, we should compare it with the
value of all other parts of the land. That is, with the value not
of the coal alone, but with the value of the whole property. The
rights of an owner as against the public are not increased by
dividing the interests in his property into surface and subsoil.
The sum of the rights in the parts can not be greater than the
rights in the whole. The estate of an owner in land is
grandiloquently described as extending ab orco usque ad
coelum. But I suppose no one would contend that, by selling
his interest above 100 feet from the surface, he could prevent the
state from limiting, by the police power, the height of structures
in a city. And why should a sale of underground rights bar the
state's power? For aught that appears, the value of the coal kept
in place by the restriction may be negligible as compared with the
value of the whole property, or even as compared with that part of
it which is represented by the coal remaining in place and which
may be extracted despite the statute. Ordinarily a police
regulation, general in operation, will not be held void as to a
particular property, although proof is offered that, owing to
conditions peculiar to it, the restriction could not reasonably be
applied. See Powell v. Pennsylvania, 127 U.
S. 678 , 127 U. S. 681 , 127 U. S. 684 ; Murphy v. California, 225 U. S. 623 , 225 U. S. 629 .
But even if the particular facts are to govern, the statute should,
in my opinion be upheld in this case. For the defendant has failed
to adduce any evidence from which Page 260 U. S. 420 it appears that to restrict its mining operations was an
unreasonable exercise of the police power. Compare Reinman v.
Little Rock, 237 U. S. 171 , 237 U. S. 177 , 237 U. S. 180 ; Pierce Oil Corporation v. City of Hope, 248 U.
S. 498 , 248 U. S. 500 .
Where the surface and the coal belong to the same person,
self-interest would ordinarily prevent mining to such an extent as
to cause a subsidence. It was, doubtless, for this reason that the
legislature, estimating the degrees of danger, deemed statutory
restriction unnecessary for the public safety under such
conditions.

															It is said that this is a case of a single dwelling house, that
the restriction upon mining abolishes a valuable estate hitherto
secured by a contract with the plaintiffs, and that the restriction
upon mining cannot be justified as a protection of personal safety,
since that could be provided for by notice. The propriety of
deferring a good deal to tribunals on the spot has been repeatedly
recognized. Welch v. Swasey, 214 U. S.
91 , 214 U. S. 106 ; Laurel Hill Cemetery v. San Francisco, 216 U.
S. 358 , 216 U. S. 365 ; Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 .
May we say that notice would afford adequate protection of the
public safety where the legislature and the highest court of the
State, with greater knowledge of local conditions, have declared,
in effect, that it would not? If the public safety is imperiled,
surely neither grant nor contract can prevail against the exercise
of the police power. Fertilizing Co. v. Hyde Park, 97 U. S. 659 ; Atlantic Coast Line R.R. Co. v. North Carolina, 232 U. S. 548 ; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372 ; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269 . The
rule that the state's power to take appropriate measures to guard
the safety of all who may be within its jurisdiction may not be
bargained away was applied to compel carriers to establish grade
crossings at their own expense, despite contracts to the contrary; Chicago, Burlington & Quincy R.R. Co. v. Nebraska, 170 U. S. 57 ; Page 260 U. S. 421 and, likewise, to supersede, by an Employers' Liability Act, the
provision of a charter exempting a railroad from liability for
death of employees, since the civil liability was deemed a matter
of public concern, and not a mere private right. Texas &
New Orleans R.R. Co. v. Miller, 221 U.
S. 408 . Compare Boyd v. Alabama, 94 U. S.
645 ; Stone v. Mississippi, 101 U.
S. 814 ; Butchers' Union Co. v. Crescent City
Co., 111 U. S. 746 ; Douglas v. Kentucky, 168 U. S. 488 ; Pennsylvania Hospital v. Philadelphia, 245 U. S.
20 , 245 U. S. 23 .
Nor can existing contracts between private individuals preclude
exercise of the police power. "One whose rights, such as they are,
are subject to state restriction cannot remove them from the power
of the state by making a contract about them." Hudson Water Co.
v. McCarter, 209 U. S. 349 , 209 U. S. 357 ; Knoxville Water Co. v. Knoxville, 189 U.
S. 434 , 189 U. S. 438 ; Rast v. Van Deman & Lewis Co., 240 U.
S. 342 . The fact that this suit is brought by a private
person is, of course, immaterial. To protect the community through
invoking the aid, as litigant, of interested private citizens is
not a novelty in our law. That it may be done in Pennsylvania was
decided by its Supreme Court in this case. And it is for a state to
say how its public policy shall be enforced.

															This case involves only mining which causes subsidence of a
dwelling house. But the Kohler Act contains provisions in addition
to that quoted above; and as to these also, an opinion is
expressed. These provisions deal with mining under cities to such
an extent as to cause subsidence of --

															"(a) Any public building or any structure customarily used by
the public as a place of resort, assemblage, or amusement,
including, but not limited to, churches, schools, hospitals,
theaters, hotels, and railroad stations."

															"(b) Any street, road, bridge, or other public passageway,
dedicated to public use or habitually used by the public. " Page 260 U. S. 422 "(c) Any track, roadbed, right of way, pipe, conduit, wire, or
other facility, used in the service of the public by any municipal
corporation or public service company as defined by the Public
Service Law."

															A prohibition of mining which causes subsidence of such
structures and facilities is obviously enacted for a public
purpose, and it seems likewise clear that mere notice of intention
to mine would not in this connection secure the public safety. Yet
it is said that these provisions of the act cannot be sustained as
an exercise of the police power where the right to mine such coal
has been reserved. The conclusion seems to rest upon the assumption
that, in order to justify such exercise of the police power, there
must be "an average reciprocity of advantage" as between the owner
of the property restricted and the rest of the community, and that
here such reciprocity is absent. Reciprocity of advantage is an
important consideration, and may even be an essential, where the
state's power is exercised for the purpose of conferring benefits
upon the property of a neighborhood, as in drainage projects, Wurts v. Hoagland, 114 U. S. 606 ; Fallbrook Irrigation District v. Bradley, 164 U.
S. 112 ; or upon adjoining owners, as by party wall
provisions, Jackman v. Rosenbaum Co., ante, 260 U. S. 22 . But
where the police power is exercised not to confer benefits upon
property owners but to protect the public from detriment and
danger, there is, in my opinion, no room for considering
reciprocity of advantage. There was no reciprocal advantage to the
owner prohibited from using his oil tanks in 248 U. S. 248 U.S.
498; his brickyard, in 239 U. S. 239 U.S.
394; his livery stable, in 237
U. S. 237 U.S. 171; his billiard hall, in 225 U. S. 225 U.S.
623; his oleomargarine factory, in 127 U. S. 127 U.S.
678; his brewery, in 123 U. S. 123 U.S.
623; unless it be the advantage of living and doing business in a
civilized community. That reciprocal advantage is given by the act
to the coal operators.


EEOC v. Abercrombie & Fitch Stores, Inc.

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–86

															_________________

															EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
PETITIONER v. ABERCROMBIE & FITCHSTORES, INC.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 1, 2015]

															Justice Scalia delivered the opinion of the
Court.

															Title VII of the Civil Rights Act of 1964
prohibits a prospective employer from refusing to hire an applicant
in order to avoid accommodating a religious practice that it could
accommodate without undue hardship. The question presented is
whether this prohibition applies only where an applicant has
informed the employer of his need for an accommodation.

															I

															We summarize the facts in the light most
favorable to the Equal Employment Opportunity Commission (EEOC),
against whom the Tenth Circuit granted summary judgment. Respondent
Abercrombie & Fitch Stores, Inc., operates several lines of
clothing stores, each with its own “style.” Consistent with the
image Abercrombie seeks to project for each store, the company
imposes a Look Policy that governs its employees’ dress. The Look
Policy prohibits “caps”—a term the Policy does not define—as too
informal for Abercrombie’s desired image.

															Samantha Elauf is a practicing Muslim who,
consistent with her understanding of her religion’s requirements,
wears a headscarf. She applied for a position in an Abercrombie
store, and was interviewed by Heather Cooke, the store’s assistant
manager. Using Abercrombie’s ordinary system for evaluating
applicants, Cooke gave Elauf a rating that qualified her to be
hired; Cooke was concerned, however, that Elauf’s headscarf would
conflict with the store’s Look Policy.

															Cooke sought the store manager’s guidance to
clarify whether the headscarf was a forbidden “cap.” When this
yielded no answer, Cooke turned to Randall Johnson, the district
manager. Cooke informed Johnson that she believed Elauf wore her
headscarf because of her faith. Johnson told Cooke that Elauf’s
headscarf would violate the Look Policy, as would all other
headwear, religious or otherwise, and directed Cooke not to hire
Elauf.

															The EEOC sued Abercrombie on Elauf’s behalf,
claiming that its refusal to hire Elauf violated Title VII. The
District Court granted the EEOC summary judgment on the issue of
liability, 798 F. Supp. 2d 1272 (ND Okla. 2011), held a trial
on damages, and awarded $20,000. The Tenth Circuit reversed and
awarded Abercrombie summary judgment. 731 F. 3d 1106 (2013).
It concluded that ordinarily an employer cannot be liable under
Title VII for failing to accommodate a religious practice until the
applicant (or employee) provides the employer with actual knowledge
of his need for an accommodation. Id., at 1131. We granted
certiorari. 573 U. S. ___ (2014).

															II

															Title VII of the Civil Rights Act of 1964
78Stat. 253, as amended, prohibits two categories of employment
prac-tices. It is unlawful for an employer:

															“(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion,
sex, or national origin; or

															(2) to limit, segregate, or classify his
employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race,color, religion, sex,
or national origin.” 42 U. S. C. §2000e–2(a).

															These two proscriptions, often referred to as
the “disparate treatment” (or “intentional discrimination”)
provision and the “disparate impact” provision, are the only causes
of action under Title VII. The word “religion” is defined to
“includ[e] all aspects of religious observance and practice, as
well as belief, unless an employer demonstrates that he is unable
to reasonably accommodate to” a “religious observance or practice
without undue hardship on the conduct of the employer’s business.”
§2000e( j).[ 1 ]

															Abercrombie’s primary argument is that an
applicant cannot show disparate treatment without first showing
that an employer has “actual knowledge” of the applicant’s need for
an accommodation. We disagree. Instead, an applicant need only show
that his need for an accommodation was a motivating factor in the
employer’s decision.[ 2 ]

															The disparate-treatment provision forbids
employers to: (1) “fail . . . to hire” an applicant (2) “because
of” (3) “such individual’s . . . religion” (which includes his
religious practice). Here, of course, Abercrombie (1) failed to
hire Elauf. The parties concede that (if Elauf sincerely believes
that her religion so requires) Elauf’s wearing of a headscarf is
(3) a “religious practice.” All that remains is whether she was not
hired (2) “because of” her religious practice.

															The term “because of” appears frequently in
antidiscrimination laws. It typically imports, at a minimum, the
traditional standard of but-for causation. University of Tex.
Southwestern Medical Center v . Nassar , 570 U. S.
___ (2013). Title VII relaxes this standard, however, to prohibit
even making a protected characteristic a “motivating factor” in an
employment decision. 42 U. S. C. §2000e–2(m). “Because
of” in §2000e–2(a)(1) links the forbidden consideration to each of
the verbs preceding it; an individual’s actual religious practice
may not be a motivating factor in failing to hire, in refusing to
hire, and so on.

															It is significant that §2000e–2(a)(1) does not
impose a knowledge requirement. As Abercrombie acknowledges, some
antidiscrimination statutes do. For example, the Americans with
Disabilities Act of 1990 defines discrimination to include an
employer’s failure to make “reason-able accommodations to the known physical or mental limitations” of an applicant.
§12112(b)(5)(A) (emphasis added). Title VII contains no such
limitation.

															Instead, the intentional discrimination
provision prohibits certain motives , regardless of the state
of the actor’s knowledge. Motive and knowledge are separate
concepts. An employer who has actual knowledge of the need for an
accommodation does not violate Title VII by refusing to hire an
applicant if avoiding that accommodation is not his motive .
Conversely, an employer who acts with the motive of avoiding
accommodation may violate Title VII even if he has no more than an
unsubstantiated suspicion that accommodation would be needed.

															Thus, the rule for disparate-treatment claims
based on a failure to accommodate a religious practice is
straightforward: An employer may not make an applicant’s religious
practice, confirmed or otherwise, a factor in employment decisions.
For example, suppose that an employer thinks (though he does not
know for certain) that a job applicant may be an orthodox Jew who
will observe the Sabbath, and thus be unable to work on Saturdays.
If the applicant actually requires an accommodation of that
religious practice, and the employer’s desire to avoid the
prospective accommodation is a motivating factor in his decision,
the employer violates Title VII.

															Abercrombie urges this Court to adopt the Tenth
Circuit’s rule “allocat[ing] the burden of raising a religious
conflict.” Brief for Respondent 46. This would require the employer
to have actual knowledge of a conflict between an applicant’s
religious practice and a work rule. The problem with this approach
is the one that inheres in most incorrect interpretations of
statutes: It asks us to add words to the law to produce what is
thought to be a desirable result. That is Congress’s province. We
construe Title VII’s silence as exactly that: silence. Its
disparate-treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious
practice. A request for accommodation, or the employer’s certainty
that the practice exists, may make it easier to infer motive, but
is not a necessary condition of liability.[ 3 ]

															Abercrombie argues in the alternative that a
claim based on a failure to accommodate an applicant’s religious
practice must be raised as a disparate-impact claim, not a
disparate-treatment claim. We think not. That might have been true
if Congress had limited the meaning of “religion” in Title VII to
religious belief —so that discriminating against a particular
religious practice would not be disparate treatment though
it might have disparate impact. In fact, however, Congress defined
“religion,” for Title VII’s purposes, as “includ[ing] all aspects
of religious observance and practice, as well as belief.” 42
U. S. C. §2000e(j). Thus, religious practice is one of
the protected characteristics that cannot be accorded disparate
treatment and must be accommodated.

															Nor does the statute limit disparate-treatment
claims to only those employer policies that treat religious
practices less favorably than similar secular practices.
Abercrombie’s argument that a neutral policy cannot constitute
“intentional discrimination” may make sense in other contexts. But
Title VII does not demand mere neutrality with regard to religious
practices—that they be treated no worse than other practices.
Rather, it gives them favored treatment, affirmatively obligating
employers not “to fail or refuse to hire or discharge any
individual . . . because of such individual’s” “religious
observance and practice.” An employer is surely entitled to have,
for example, a no-headwear policy as an ordinary matter. But when
an applicant requires an accommodation as an “aspec[t] of religious
. . . practice,” it is no response that the sub-sequent “fail[ure]
. . . to hire” was due to an otherwise-neutral policy. Title VII
requires otherwise-neutralpolicies to give way to the need for an
accommodation.

															*  *  *

															The Tenth Circuit misinterpreted Title VII’s
requirements in granting summary judgment. We reverse its judgment
and remand the case for further consideration consistent with this
opinion.

															It is so ordered. Notes 1 For brevity’s sake, we
will in the balance of this opinion usuallyomit reference to the
§2000e( j) “undue hardship” defense to the accom-modation
requirement, discussing the requirement as though it is
absolute. 2 The concurrence
mysteriously concludes that it is not the plaintiff ’s burden
to prove failure to accommodate. Post , at 5. But of course
that is the plaintiff’s burden, if failure to hire “because
of” the plaintiff’s “religious practice” is the gravamen of the
complaint. Failing to hire for that reason is synonymous with refusing to accommodate the religious practice. To accuse the
employer of the one is to accuse him of the other. If he is willing
to “accommodate”—which means nothing more than allowing the
plaintiff to engage in her religious practice despite the
employer’s normal rules to the contrary—adverse action “because of”
the religious practice is not shown. “The clause that begins with
the word ‘unless,’” as the concurrence describes it, ibid. ,
has no function except to place upon the employer the burden of
establishing an “undue hardship” defense. The concurrence provides
no example, not even an unrealistic hypothetical one, of a claim of
failure to hire because of religious practice that does not say the
employer refused to permit (“failed to accommodate”) the religious
practice. In the nature of things, there cannot be
one. 3 While a knowledge
requirement cannot be added to the motive requirement, it is
arguable that the motive requirement itself is not met unless the
employer at least suspects that the practice in question is a
religious practice— i.e., that he cannot discriminate
“because of” a “religious practice” unless he knows or suspects it
to be a religious practice. That issue is not presented in this
case, since Abercrombie knew—or at least suspected—that the scarf
was worn for religious reasons. The question has therefore not been
discussed by either side, in brief or oral argument. It seems to us
inappropriate to resolve this unargued point by way of dictum, as
the concurrence would do. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–86

															_________________

															EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
PETITIONER v. ABERCROMBIE & FITCHSTORES, INC.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 1, 2015]

															Justice Alito, concurring in the judgment.

															This case requires us to interpret a provision
of Title VII of the Civil Rights Act of 1964 that prohibits an
employer from taking an adverse employment action (refusal to hire,
discharge, etc.) “against any individual . . . because
of [[ 1 ]] such individual’s
. . . religion.” 42 U. S. C. §2000e–2(a).
Another provision states that the term “religion” “includes all
aspects of religious observance and practice, as well as belief,
unless an employer demonstrates that he is unable to reasonably
accommodate to an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the
employer’s business.” §2000e( j). When these two provisions
are put together, the following rule (expressed in somewhat
simplified terms) results: An employer may not take an adverse
employment action against an applicant or employee because of any
aspect of that individual’s religious observance or practice unless
the employer demonstrates that it is unable to reasonably
accommodate that observance or practice without undue hardship.

															In this case, Samantha Elauf, a practicing
Muslim, wore a headscarf for a religious reason when she was
interviewed for a job in a store operated by Abercrombie &
Fitch. She was rejected because her scarf violated Abercrombie’s
dress code for employees. There is sufficient evidence in the
summary judgment record to support a finding that Abercrombie’s
decisionmakers knew that Elauf was a Muslim and that she wore the
headscarf for a religious reason. But she was never asked why she
wore the headscarf and did not volunteer that information. Nor was
she told that she would be prohibited from wearing the headscarf on
the job. The Tenth Circuit held that Abercrombie was entitled to
summary judgment because, except perhaps in unusual circumstances,
“[a]pplicants or employees must initially inform employers of their
religious practices that conflict with a work requirement and their
need for a reasonable accommodation for them.” 731 F. 3d 1106,
1142 (2013) (emphasis deleted).

															The relevant provisions of Title VII, however,
do not impose the notice requirement that formed the basis for the
Tenth Circuit’s decision. While I interpret those provisions to
require proof that Abercrombie knew that Elauf wore the headscarf
for a religious reason, the evidence of Abercrombie’s knowledge is
sufficient to defeat summary judgment.

															The opinion of the Court states that
“§2000e–2(a)(1) does not impose a knowledge requirement,” ante , at 4, but then reserves decision on the question
whether it is a condition of liability that the employer know or
suspect that the practice he refuses to accommodate is a religious
practice, ante , at 6, n. 3, but in my view, the answer
to this question, which may arise on remand,[ 2 ]2 is obvious. I would hold that an employer
cannot be held liable for taking an adverse action because of an
employee’s religious practice unless the employer knows that the
employee engages in the practice for a religious reason. If
§2000e–2(a)(1) really “does not impose a knowledge requirement,” ante at 4, it would be irrelevant in this case whether
Abercrombie had any inkling that Elauf is a Muslim or that she wore
the headscarf for a religious reason. That would be very
strange.

															The scarves that Elauf wore were not articles of
clothing that were designed or marketed specifically for Muslim
women. Instead, she generally purchased her scarves at ordinary
clothing stores. In this case, the Abercrombie employee who
interviewed Elauf had seen her wearing scarves on other occasions,
and for reasons that the record does not make clear, came to the
(correct) conclusion that she is a Muslim. But suppose that the
interviewer in this case had never seen Elauf before. Suppose that
the interviewer thought Elauf was wearing the scarf for a secular
reason. Suppose that nothing else about Elauf made the interviewer
even suspect that she was a Muslim or that she was wearing the
scarf for a religious reason. If “§2000e–2(a)(1) does not impose a
knowledge requirement,” Abercrombie would still be liable. The
EEOC, which sued on Elauf’s behalf, does not adopt that
interpretation, see, e.g., Brief for Petitioner 19, and it
is surely wrong.

															The statutory text does not compel such a
strange result. It is entirely reasonable to understand the
prohibition against an employer’s taking an adverse action because
of a religious practice to mean that an employer may not take an
adverse action because of a practice that the employer knows to be
religious. Consider the following sentences. The parole board
granted the prisoner parole because of an exemplary record
in prison. The court sanctioned the attorney because of a flagrant violation of Rule 11 of the Federal Rules of Civil
Procedure. No one is likely to understand these sentences to mean
that the parole board granted parole because of a record that,
unbeknownst to the board, happened to be exemplary or that the
court sanctioned the attorney because of a violation that,
unbeknownst to the court, happened to be flagrant. Similarly, it is
entirely reasonable to understand this statement—“The employer
rejected the applicant because of a religious practice”—to
mean that the employer rejected the applicant because of a practice
that the employer knew to be religious.

															This interpretation makes sense of the statutory
provisions. Those provisions prohibit intentional discrimination,
which is blameworthy conduct, but if there is no knowledge
requirement, an employer could be held liable without fault. The
prohibition of discrimination because of religious practices is
meant to force employers to consider whether those practices can be
accommodated without undue hardship. See §2000e( j). But the
“no-knowledge” interpretation would deprive employers of that
opportunity. For these reasons, an employer cannot be liable for
taking adverse action because of a religious practice if the
employer does not know that the practice is religious.

															A plaintiff need not show, however, that the
employer took the adverse action because of the religious nature of
the practice. Cf. post , at 4 (Thomas, J., concurring in part
and dissenting in part). Suppose, for example, that an employer
rejected all applicants who refuse to work on Saturday, whether for
religious or nonreligious reasons. Applicants whose refusal to work
on Saturday was known by the employer to be based on religion will
have been rejected because of a religious practice.

															This conclusion follows from the reasonable
accommodation requirement imposed by §2000e( j). If neutral
work rules ( e.g. , every employee must work on Saturday, no
employee may wear any head covering) precluded liability, there
would be no need to provide that defense, which allows an employer
to escape liability for refusing to make an exception to a neutral
work rule if doing so would impose an undue hardship.

															This brings me to a final point. Under the
relevant statutory provisions, an employer’s failure to make a
reasonable accommodation is not an element that the plaintiff must
prove. I am therefore concerned about the Court’s statement that it
“ is the plaintiff’s burden [to prove failure to
accommodate].” Ante, at 3 n. 2. This blatantly
contradicts the language of the statutes. As I noted at the
beginning, when §2000e–2(a) and §2000e( j) are combined, this
is the result:

															“It shall be an unlawful employment
practice for an employer . . . to fail or refuse to hire
. . . any individual . . . because of [any
aspect of] such individual’s . . . religious
. . . practice . . . unless an employer
demonstrates that he is unable to reasonably accommodate to [the]
employee’s or prospective employee’s religious . . . practice . . . without undue hardship on the
conduct of the employer’s business. ” (Emphasis added.)

															The clause that begins with the term “unless”
unmistakably sets out an employer defense. If an employer chooses
to assert that defense, it bears both the burden of production and
the burden of persuasion. A plaintiff, on the other hand, must
prove the elements set out prior to the “unless” clause, but that
portion of the rule makes no mention of accommodation. Thus, a
plaintiff need not plead or prove that the employer wished to avoid
making an accommodation or could have done so without undue
hardship. If a plaintiff shows that the employer took an adverse
employment action because of a religious observance or practice, it
is then up to the employer to plead and prove the defense. The
Court’s statement subverts the statutory text, and in close cases,
the Court’s reallocation of the burden of persuasion may be
decisive.

															In sum, the EEOC was required in this case to
prove that Abercrombie rejected Elauf because of a practice that
Abercrombie knew was religious. It is undisputed that Abercrombie
rejected Elauf because she wore a headscarf, and there is ample
evidence in the summary judgment record to prove that Abercrombie
knew that Elauf is a Muslim and that she wore the scarf for a
religious reason. The Tenth Circuit therefore erred in ordering the
entry of summary judgment for Abercrombie. On remand, the Tenth
Circuit can consider whether there is sufficient evidence to
support summary judgment in favor of the EEOC on the question of
Abercrombie’s knowledge. The Tenth Circuit will also be required to
address Abercrombie’s claim that it could not have accommodated
Elauf’s wearing the headscarf on the job without undue
hardship. Notes 1 Under 42
U. S. C. §2000e–2(m), an employer takes an action
“because of” religion if religion is a “motivating factor” in the
decision. 2 2 Cooke testified that she
told Johnson that she believed Elauf wore a head scarf for a
religious reason, App. 87, but Johnson testified that Cooke did not
share this belief with him, id., at 146. If Abercrombie’s
knowledge is irrelevant, then the lower courts will not have to
decide whether there is a genuine dispute on this question. But if
Abercrombie’s knowledge is relevant and if the lower courts hold
that there is a genuine dispute of material fact about
Abercrombie’s knowledge, the question will have to be submitted to
the trier of fact. For these reasons, we should decide this
question now. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–86

															_________________

															EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
PETITIONER v. ABERCROMBIE & FITCHSTORES, INC.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 1, 2015]

															Justice Thomas, concurring in part and
dissenting in part.

															I agree with the Court that there are two—and
only two—causes of action under Title VII of the Civil Rights Act
of 1964 as understood by our precedents: a disparate-treatment (or
intentional-discrimination) claim and a disparate-impact claim. Ante, at 3. Our agreement ends there. Unlike the majority, I
adhere to what I had thought before today was an undisputed
proposition: Mere application of a neutral policy cannot constitute
“intentional discrimination.” Because the Equal Employment
Opportunity Commission (EEOC) can prevail here only if Abercrombie
engaged in intentional discrimination, and because Abercrombie’s
application of its neutral Look Policy does not meet that
description, I would affirm the judgment of the Tenth Circuit.

															I

															This case turns on whether Abercrombie’s
conduct constituted “intentional discrimination” within the meaning
of 42 U. S. C. §1981a(a)(1). That provision allows a
Title VII plaintiff to “recover compensatory and punitive damages”
only against an employer “who engaged in unlawful intentional
discrimination (not an employment practice that is unlawful because
of its disparate impact).” The damages award EEOC obtained against
Abercrombie is thus proper only if that company engaged in
“intentional discrimination”—as opposed to “an employment practice
that is unlawful because of its disparate impact”—within the
meaning of §1981a(a)(1).

															The terms “intentional discrimination” and
“disparate impact” have settled meanings in federal employment
discrimination law. “[I]ntentional discrimination . . .
occur[s] where an employer has treated a particular person less
favorably than others because of a protected trait.” Ricci v. DeStefano , 557 U. S. 557, 577 (2009) (internal
quotation marks and alteration omitted). “[D]isparate-impact
claims,” by contrast, “involve employment practices that are
facially neutral in their treatment of different groups but that in
fact fall more harshly on one group than another and cannot be
justified by business necessity.” Raytheon Co. v. Hernandez , 540 U. S. 44, 52 (2003) (internal quotation
marks omitted). Conceived by this Court in Griggs v. Duke
Power Co. , 401 U. S. 424 (1971) , this “theory of
discrimination” provides that “a facially neutral employment
practice may be deemed illegally discriminatory without evidence of
the employer’s subjective intent to discriminate that is required
in a disparate-treatment case,” Raytheon, supra, at 52–53
(internal quotation marks and alteration omitted).

															I would hold that Abercrombie’s conduct did not
constitute “intentional discrimination.” Abercrombie refused to
create an exception to its neutral Look Policy for Samantha Elauf’s
religious practice of wearing a headscarf. Ante, at 2. In
doing so, it did not treat religious practices less favorably than
similar secular practices, but instead remained neutral with regard
to religious practices. To be sure, the effects of
Abercrombie’s neutral Look Policy, absent an accommodation, fall
more harshly on those who wear headscarves as an aspect of their
faith. But that is a classic case of an alleged disparate impact.
It is not what we have previously understood to be a case of
disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared
unable to comply with the company’s Look Policy. See ibid. ;
App. 134, 144. Because I cannot classify Abercrombie’s conduct as
“intentional discrimination,” I would affirm.

															II

															A

															Resisting this straightforward application of
§1981a, the majority expands the meaning of “intentional
discrimination” to include a refusal to give a religious applicant
“favored treatment.” Ante, at 6–7. But contrary to the
majority’s assumption, this novel theory of discrimination is not
commanded by the relevant statutory text.

															Title VII makes it illegal for an employer “to
fail or refuse to hire . . . any individual
. . . because of such individual’s . . .
religion.” §2000e–2(a)(1). And as used in Title VII, “[t]he term
‘religion’ includes all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that
he is unable to reasonably accommodate to an employee’s or
prospective employee’s religious observance or practice without
undue hardship on the conduct of the employer’s business.”
§2000e( j). With this gloss on the definition of “religion” in
§2000e–2(a)(1), the majority concludes that an employer may violate
Title VII if he “refuse[s] to hire . . . any individual
. . . because of such individual’s . . .
religious . . . practice” (unless he has an “undue
hardship” defense). See ante, at 3–4.

															But inserting the statutory definition of
religion into §2000e–2(a) does not answer the question whether
Abercrombie’s refusal to hire Elauf was “because of her religious
practice.” At first glance, the phrase “because of such
individual’s religious practice” could mean one of two things.
Under one reading, it could prohibit taking an action because of
the religious nature of an employee’s particular practice. Under
the alternative reading, it could prohibit taking an action because
of an employee’s practice that happens to be religious.

															The distinction is perhaps best understood by
example. Suppose an employer with a neutral grooming policy
forbidding facial hair refuses to hire a Muslim who wears a beard
for religious reasons. Assuming the employer applied the neutral
grooming policy to all applicants, the motivation behind the
refusal to hire the Muslim applicant would not be the religious
nature of his beard, but its existence. Under the first reading,
then, the Muslim applicant would lack an intentional-discrimination
claim, as he was not refused employment “because of” the religious
nature of his practice. But under the second reading, he would have
such a claim, as he was refused employment “because of” a practice
that happens to be religious in nature.

															One problem with the second, more expansive
reading is that it would punish employers who have no
discrimina-tory motive. If the phrase “because of such individual’s
religious practice” sweeps in any case in which an employer takes
an adverse action because of a practice that hap-pens to be
religious in nature, an employer who had no idea that a particular
practice was religious would be penalized. That strict-liability
view is plainly at odds with the concept of intentional
discrimination. Cf. Raytheon , supra, at 54, n. 7
(“If [the employer] were truly unaware that such a disability
existed, it would be impossible for her hiring decision to have
been based, even in part, on [the applicant’s] disability. And, if
no part of the hiring decision turned on [the applicant’s] status
as disabled, he cannot, ipso facto , have been subject to
disparate treatment”). Surprisingly, the majority leaves the door
open to this strict-liability theory, reserving the question
whether an employer who does not even “suspec[t] that the practice
in question is a religious practice” can nonetheless be punished
for intentional discrimination. Ante, at 6, n. 3.

															For purposes of today’s decision, however, the
majority opts for a compromise, albeit one that lacks a foothold in
the text and fares no better under our precedents. The majority
construes §2000e–2(a)(1) to punish employers who refuse to
accommodate applicants under neutral policies when they act “with
the motive of avoiding accommodation.” Ante , at 5. But an
employer who is aware that strictly applying a neutral policy will
have an adverse effect on a religious group, and applies the policy
anyway, is not engaged in intentional discrimination, at least as
that term has traditionally been understood. As the Court explained
many decades ago, “ ‘Discriminatory
purpose’ ”— i.e., the purpose necessary for a claim of
intentional discrimination—demands “more than . . .
awareness of consequences. It implies that the decisionmaker
. . . selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Personnel
Administrator of Mass. v. Feeney , 442 U. S. 256,
279 (1979) (internal citation and footnote omitted).

															I do not dispute that a refusal to accommodate
can, in some circumstances, constitute intentional discrimination.
If an employer declines to accommodate a particular religious
practice, yet accommodates a similar secular (or other
denominational) practice, then that may be proof that he has
“treated a particular person less favorably than others because of
[a religious practice].” Ricci , 557 U. S., at 577
(internal quotation marks and alteration omitted); see also, e.g., Dixon v. Hallmark Cos. , 627 F. 3d 849, 853
(CA11 2010) (addressing a policy forbidding display of “religious
items” in management offices). But merely refusing to create an
exception to a neutral policy for a religious practice cannot be
described as treating a particular applicant “less favorably than
others.” The majority itself appears to recognize that its
construction requires something more than equal treatment. See ante, at 6–7 (“Title VII does not demand mere neutrality
with regard to religious practices,” but instead “gives them
favored treatment”). But equal treatment is not disparate
treatment, and that basic principle should have disposed of this
case.

															B

															The majority’s novel theory of intentional
discrimination is also inconsistent with the history of this area
of employment discrimination law. As that history shows, cases
arising out of the application of a neutral policy absent religious
accommodations have traditionally been understood to involve only
disparate-impact liability.

															When Title VII was enacted in 1964, it
prohibited discrimination “because of . . . religion” and
did not include the current definition of “religion” encompassing
“religious observance and practice” that was added to the statute
in 1972. Civil Rights Act of 1964, §§701, 703(a), 78Stat. 253–255.
Shortly thereafter, the EEOC issued guidelines purporting to create
“an obligation on the part of the employer to accommodate to the
religious needs of employees.” 31 Fed. Reg. 8370 (1966). From an
early date, the EEOC defended this obligation under a
disparate-impact theory. See Brief for United States as Amicus
Curiae in Dewey v. Reynolds Metals Co. , O. T.
1970, No. 835, pp. 7, 13, 29–32. Courts and commentators at
the time took the same view. See, e.g., Reid v. Memphis
Publishing Co. , 468 F. 2d 346, 350 (CA6 1972); Dewey v. Reynolds Metals Co. , 300 F. Supp. 709,
713 (WD Mich. 1969), rev’d, 429 F. 2d 324 (CA6 1970), aff’d by
an equally di-vided Court, 402 U. S. 689 (1971) ( per
curiam ); 1 B. Lindemann & P. Grossman, Employment
Discrimination Law 187–188 (3d ed. 1976).

															This Court’s first decision to discuss a refusal
to accommodate a religious practice, Trans World Airlines,
Inc. v. Hardison , 432 U. S. 63 (1977) , similarly
did not treat such conduct as intentional discrimination. Hardison involved a conflict between an employer’s neutral
seniority system for assigning shifts and an employee’s observance
of a Saturday Sabbath. The employer denied the employee an
accommodation, so he refused to show up for work on Saturdays and
was fired. Id., at 67–69. This Court held that the employer
was not liable under Title VII because the proposed accommodations
would have imposed an undue hardship on the employer. Id. ,
at 77. To bolster its conclusion that there was no statutory
violation, the Court relied on a provision of Title VII shielding
the application of a “ ‘bona fide seniority or merit
system’ ” from challenge unless that application is
“ ‘the result of an intention to discriminate because of
. . . religion.’ ” Id., at 81–82 (quoting
§2000e–2(h)). In applying that provision, the Court observed that
“[t]here ha[d] been no suggestion of discriminatory intent in th[e]
case.” Id., at 82. But if the major-ity’s view were
correct—if a mere refusal to accommodate a religious practice under
a neutral policy could constitute intentional discrimination—then
the Court in Hardison should never have engaged in such
reasoning. After all, the employer in Hardison knew of the
employee’s religious practice and refused to make an exception to
its neutral seniority system, just as Abercrombie arguably knew of
Elauf’s religious practice and refused to make an exception to its
neutral Look Policy.[ 1 ]*

															Lower courts following Hardison likewise
did not equate a failure to accommodate with intentional
discrimination. To the contrary, many lower courts, including the
Tenth Circuit below, wrongly assumed that Title VII creates a
freestanding failure-to-accommodate claim distinct from either
disparate treatment or disparate impact. See, e.g., 731
F. 3d 1106, 1120 (2013) (“A claim for religious discrimination
under Title VII can be asserted under several different theories,
including disparate treatment and failure to accommodate” (internal
quotation marks omitted)); Protos v. Volkswagen of Am.,
Inc. , 797 F. 2d 129, 134, n. 2 (CA3 1986) (“In
addition to her religious accommodation argument, [the plaintiff]
maintains that she prevailed in the district court on a disparate
treatment claim”). That assumption appears to have grown out of
statements in our cases suggesting that Title VII’s definitional
provision concerning religion created an independent duty. See, e.g., Ansonia Bd. of Ed. v. Philbrook , 479 U. S.
60 , n. 1 (1986) (“The reasonable accommodation duty was
incorporated into the statute, somewhat awkwardly, in the
definition of religion”). But in doing so, the lower courts
correctly recognized that a failure-to-accommodate claim based on
the application of a neutral policy is not a disparate-treatment
claim. See, e.g., Reed v. International Union, United
Auto, Aerospace and Agricultural Implement Workers of Am. , 569
F. 3d 576, 579–580 (CA6 2009); Chalmers v. Tulon Co.
of Richmond , 101 F. 3d 1012, 1018 (CA4 1996).

															At least before we granted a writ of certiorari
in this case, the EEOC too understood that merely applying a
neutral policy did not automatically constitute intentional
discrimination giving rise to a disparate-treatment claim. For
example, the Commission explained in a recent compliance manual, “A
religious accommodation claim is distinct from a disparate
treatment claim, in which the question is whether employees are
treated equally.” EEOC Compliance Manual §12–IV, p. 46 (2008).
Indeed, in asking us to take this case, the EEOC dismissed one of
Abercrombie’s supporting authorities as “a case addressing
intentional discrimination, not religious accommodation.” Reply to
Brief in Opposition 7, n. Once we granted certiorari in this case,
however, the EEOC altered course and advanced the
intentional-discrimination theory now adopted by the majority. The
Court should have rejected this eleventh-hour request to expand our
understanding of “intentional discrimination” to include merely
applying a religion-neutral policy.

															*  *  *

															The Court today rightly puts to rest the
notion that Title VII creates a freestanding
religious-accommodation claim, ante, at 3, but creates in
its stead an entirely new form of liability: the
disparate-treatment-based-on-equal-treatment claim. Because I do
not think that Congress’ 1972 redefinition of “religion” also
redefined “intentional discrimination,” I would affirm the judgment
of the Tenth Circuit. I respectfully dissent from the portions of
the majority’s decision that take the contrary view. Notes 1 * Contrary to the EEOC’s
suggestion, Trans World Airlines, Inc. v. Hardison ,
432 U. S. 63 (1977) , did not establish that a refusal to
accommodate a religious practice automatically constitutes
intentional discrimination. To be sure, Hardison remarked
that the “effect of ” the 1972 amendment expanding the
definition of religion “was to make it an unlawful employment
practice under [§2000e–2(a)(1)] for an employer not to make
reasonable accommodations, short of undue hardship, for the
religious practices of his employees and prospective employees.” Id., at 74. But that statement should not be understood as a
holding that such conduct automatically gives rise to a
disparate-treatment claim. Although this Court has more recently
described §2000e–2(a)(1) as originally creating only
disparate-treatment liability, e.g., Ricci v. DeStefano , 557 U. S. 557, 577 (2009) , it was an open
question at the time Hardison was decided whether
§2000e–2(a)(1) also created disparate-impact liability, see, e.g., Nashville Gas Co. v. Satty , 434
U. S. 136, 144 (1977) ; General Elec. Co. v. Gilbert , 429 U. S. 125 –155 (1976) (Brennan, J.,
dissenting). In fact, both the employee and the EEOC in Hardison argued before this Court that the employer had
violated §2000e–2(a)(1) under a disparate-impact theory. See Brief
for Respondent 15, 25–26, and Brief for United States et al.
as Amici Curiae 33–36, 50, in Trans World Airlines,
Inc. v. Hardison , O. T. 1976, No. 75–1126 etc. In any
event, the relevant language in Hardison is dictum. Because
the employee’s termination had occurred before the 1972 amendment
to Title VII’s definition of religion, Hardison applied the
then-existing EEOC guideline—which also contained an “undue
hardship” defense—not the amended statutory definition. 432
U. S.,at 76, and n. 11. Hardison ’s comment about
the effect of the 1972 amendment was thus entirely beside the
point.