What the Abercrombie Bias Case Might Mean for Obamacare

A prequel on the question of how to interpret federal statutes

Samantha Elauf (center), her mother, Majda Elauf, and Equal Employment Opportunity Commission General Counsel David Lopez leave the U.S. Supreme Court after the court heard oral arguments in EEOC v. Abercrombie & Fitch on Feb. 25, 2015, in Washington.

Samantha Elauf (center), her mother, Majda Elauf, and Equal Employment Opportunity Commission General Counsel David Lopez leave the U.S. Supreme Court after the court heard oral arguments in EEOC v. Abercrombie & Fitch on Feb. 25, 2015, in Washington.

Photographer: Chip Somodevilla/Getty Images

The Supreme Court barely broke a sweat rebuffing preppy clothier Abercrombie & Fitch in Monday’s hiring-bias decision. In an 8 to 1 ruling, the high court used a suit by a young woman in a Muslim headscarf to remind businesses they have to take the initiative to avoid religious discrimination.

Apart from the immediate result—a victory for employees who favor devotional garb—the most interesting passage in Justice Antonin Scalia’s majority opinion teed up the central issue in a ruling on the fate of Obamacare expected by the end of June.

First, the basics of the headscarf case: Abercrombie rejected a 17-year-old named Samantha Elauf for a job because she wore a hijab in violation of the retailer’s “look policy.” Abercrombie acknowledged it knew Elauf wore the scarf for religious reasons, but the company claimed it should be immune from a bias suit because she hadn’t explicitly announced that her Muslim practice required the garment.

“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” Scalia wrote. Title VII, the statute in question, requires employers to accommodate religious practices, when feasible, Scalia explained. Only Justice Clarence Thomas dissented.

Worker advocates applauded. “Employers can no longer defend ‘look policies’ that have served as pretext for discrimination for decades,” noted Amandeep Sidhu, a partner at the law firm McDermott Will & Emery and co-founder of the Sikh Coalition, a civil rights organization. “Employers should welcome and accommodate religious diversity, not shut their doors to it,” added Steven Shapiro, national legal director of the American Civil Liberties Union (ACLU).

Stepping back from the particulars of the Abercrombie case, Justice Scalia offered more general observations about statutory interpretation relevant to the pending challenge to President Obama’s health-reform program.

Abercrombie had urged the justices to adopt a lower-court ruling that plaintiffs in religious-bias suits must show they alerted a potential employer to their religious needs. “This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule,” Scalia noted. “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.”

Here’s the Obamacare connection: The latest conservative attack on the Affordable Care Act (ACA) could turn on whether five words in that statute, enacted in 2010, are read literally—as Justice Scalia urged in the Abercrombie case—or with some contextual finesse, as Abercrombie would have wished. In the ACA case, the key words are: “exchange established by the state.” The ACA authorized tax subsidies for people who purchase health insurance via an exchange established by the state. But most states have not set up their own exchanges; the federal government has had to step in and do it for them.

In the health-care case, the Obama administration argued that the critical words in the ACA should be read in the context of the 900-page statute, which is meant to make health care affordable for all. Opponents of Obamacare contend that Congress must be taken at its literal words—even if the words don’t make sense—and that tax subsidies should go only to citizens of the 16 states that have established exchanges on their own.

The four more liberal members of the Supreme Court—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—all concurred in Scalia’s Abercrombie opinion. Does that commit the liberals to his literal approach to statutory interpretation (if Congress didn’t say it, we can’t make it up)? One might think so, but one would be wrong. More than nonlawyers would expect, the justices are fair-weather textualists, demanding strict adherence to congressional language when it suits them and inferring hidden implications when that’s more convenient. 

Justice Scalia may well cite his opinion from Abercrombie if he nixes the administration's loose interpretation of the Obamacare exchange provision. But count on the liberal justices to find reason in the ACA case to emphasize context over literal meaning. The fate of Obamacare remains uncertain.

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