At the High Court, rare win for workplace religious freedom

June 10, 2015

By Charles C. Haynes
Inside the First Amendment 

     "This is really easy."

     So said Justice Antonin Scalia when he announced last week's Supreme Court 8-1 ruling in Equal Employment Opportunity Commission v. Abercrombie & Fitch.

     The case involved Samantha Elauf, an American Muslim who claimed that Abercrombie & Fitch denied her a job because she wore a headscarf to a job interview.

     In siding with Elauf, the justices relied on Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring.

     Abercrombie had argued that allowing head coverings would violate the "look policy" required of all employees. Moreover, since Elauf didn't inform the company that she wore a headscarf for religious reasons, she had no grounds for claiming religious discrimination.

     A majority of the justices, however, found it easy to reject the clothing company's argument since there was ample evidence that Abercrombie officials knew Elauf's headscarf was a religious practice — and their decision not to hire her was motivated by a desire to avoid accommodating that practice.

     Under Title VII, the court concluded, "an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."

     Now that the Supreme Court has ruled that Elauf had a cause of action, the case goes back to the appeals court where it is very likely Elauf will prevail.

     The decision in E.E.O.C. v. Abercrombie may help prevent future religious discrimination in hiring — and that's a good thing. The Court has made it clear that a Muslim cannot be rejected as a job applicant because of his or her dress or grooming. This ruling will help protect the religious expression of other religious groups including Sikhs, Jews and others.

     At the very least, the Court's decision should push employers to re-think dress codes — and add religious exceptions if they have none. Abercrombie itself has already changed its "look policy" to allow more flexibility and, in the years since this lawsuit was filed, the company has made any number of religious accommodations.

     But beyond religious garb and grooming, it remains to be seen to what extent the Court's ruling will encourage business owners to work harder to accommodate other requests for religious accommodation on such issues as religious holidays and Sabbath observance.

     Title VII requires religious accommodation only if it doesn't cause "undue hardship on the conduct of the employee's business." Unfortunately, past court decisions have set a low bar for "undue hardship," allowing companies to refuse accommodation if it causes more than a minimal burden.

     In other words, employers may now be more careful about dress codes but still do little to accommodate other religious practices of people they hire citing "undue hardship."

     For more than 15 years, a bipartisan coalition in Congress — supported by many religious groups — has tried without success to strengthen the requirement for religious accommodation by amending Title VII.

     Called the the Workplace Religious Freedom Act, the amendment would require employers to accommodate religious practice unless it causes "a significant difficulty or expense on the conduct of the employer's business" — much tougher than the existing standard.

     The Supreme Court's decision in E.E.O.C. v. Abercrombie sends a needed message to employers warning against religious discrimination in hiring. But given the pattern of discrimination experienced by many religious workers over the years, more needs to be done to expand religious freedom in the workplace.

     Samantha Elauf's case should remind business owners that for many religious Americans, head coverings are not fashion statements, Saturdays are not simply "days off," and holy days are more than holidays.

     Religious obligations are not mere preferences or lifestyle choices — religious obligations are matters of conscience.

     In a country committed to protecting liberty of conscience, workers should not have to choose between practicing their religion and keeping their job.

Charles C. Haynes is vice president of the Newseum Institute and executive director of the Religious Freedom Center. Web:www.religiousfreedomcenter.org E-mail: chaynes@newseum.org

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