Posted on by Marc O. DeGirolami

Supreme Court Rules Against Abercrombie & Fitch in Headscarf Case

The Supreme Court yesterday decided a case we’ve discussed here at CLR Forum (including in this podcast), EEOC v. Abercrombie & Fitch, concerning the department store’s decision not to hire a job applicant because her head scarf conflicted with the store’s “look policy,” which prohibited all “caps.”  The rejected applicant sued pursuant to a federal nondiscrimination provision that prohibits “disparate treatment” on the basis of religion, among other categories. There was a dispute in the case about what the employer knew about the applicant’s reasons for wearing the headscarf and about whether the prospective employee must so inform the employer before bringing a claim.

The decision is short and not especially interesting. In an opinion by Justice Scalia, the Court held (8-1, with Justice Alito concurring only in the judgment and Justice Thomas concurring in part and dissenting in part) that in order to prevail on a disparate treatment claim under the “disparate treatment” provision of Title VII, a plaintiff need not show that a defendant had “actual knowledge” of the plaintiff’s need for a religious accommodation. The plaintiff need only show that the need for an accommodation was a “motivating factor” in the decision. Much of the rest of the majority’s opinion was consumed with interpreting the meaning of “because of” in the statutory phrase, “fail or refuse to hire…any individual…because of such individual’s…religion….” According to the Court, the provision prohibits certain motives, irrespective of the actor’s state of knowledge. The decision accords with what many scholars believe is the primary function of antidiscrimination statutes–to smoke out and punish illicit motivations, irrespective of what is known or not known as a factual matter.

One mildly interesting section of the opinion responds to Abercrombie’s claim that a religion-neutral policy like the Look Policy cannot “intentionally discriminate” against religion. As in the case of the Religious Freedom Restoration Act, Title VII, said the Court, requires more than a neutral policy:

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-neutral policies to give way to the need for an accommodation.

Justice Alito concurred only in the result, arguing that the statute does impose a knowledge requirement but that there was sufficient evidence in the record to defeat summary judgment on the question whether Abercrombie knew that the applicant needed a religious accommodation. Justice Thomas dissented on the ground that application of a religion-neutral policy cannot constitute “intentional discrimination.”

Posted on by Mark Movsesian

Brady, “The Distinctiveness of Religion in American Law”

The recent Pew survey reveals that the percentage of Americans without a bradyreligious affiliation–the Nones–continues to grow. As I’ve written here on the blog, the rise of the Nones may pose a threat to religious freedom in America. By definition, Nones do not see organized religion as worthwhile; consequently, they may be less likely to endorse special legal protection for it. Supporters of religious freedom will have to work harder to convince our fellow citizens that religious liberty remains a vital asset, even for those who do not formally adhere to a particular religion.

Next month, Cambridge University Press will release what looks to be an interesting book on the subject, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, by Kathleen A. Brady (Emory). The publisher’s description follows:

In recent decades, religion’s traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion’s uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.

Posted on by Mark Movsesian

Thomson, “Private Doubt, Public Dilemma”

Last week, Princeton University Press released Private Doubt, Public Dilemma, 9780300203677by Keith Thomson (Oxford). The publisher’s description follows:

Each age has its own crisis—our modern experience of science-religion conflict is not so very different from that experienced by our forebears, Keith Thomson proposes in this thoughtful book. He considers the ideas and writings of Thomas Jefferson and Charles Darwin, two men who struggled mightily to reconcile their religion and their science, then looks to more recent times when scientific challenges to religion (evolutionary theory, for example) have given rise to powerful political responses from religious believers.

Today as in the eighteenth century, there are pressing reasons for members on each side of the religion-science debates to find common ground, Thomson contends. No precedent exists for shaping a response to issues like cloning or stem cell research, unheard of fifty years ago, and thus the opportunity arises for all sides to cooperate in creating a new ethics for the common good.