Justices debate religious liberty in workplace

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WASHINGTON — The U.S. Supreme Court grappled with the responsibility of employers to know about and accommodate the religious practices of potential employees in oral arguments Feb. 25.

The justices considered the contrasting views of a federal agency, the Equal Employment Opportunity Commission, and Abercrombie & Fitch regarding the refusal of a store in the clothing retailer’s chain to hire a young Muslim woman who wears a headscarf.

The high court reviewed the case on appeal from the 10th Circuit Court of Appeals, which overruled a federal judge’s opinion in determining Abercrombie did not unlawfully discriminate and thereby violate Title VII of the federal Civil Rights Act. That section says an employer must “reasonably accommodate” the religious exercise of an employee or potential employee if it does not cause “undue hardship” in business.

The 10th Circuit’s decision elicited opposition from religious freedom advocates who feel that the ruling diminishes free exercise of religion.

A friend-of-the-court brief filed by a diverse coalition told the justices the appeals court erred by devising a new mandate that says the employee or prospective employee must directly provide the employer with “actual knowledge” of a need for a religious accommodation. The 10th Circuit also invented a new requirement when it decided the accommodation must be provided when the practice is mandatory, not just encouraged, in the worker or applicant’s religion.

After the oral arguments, Russell Moore, president of the Ethics & Religious Liberty Commission, said he prays the high court “does the right thing in an era when fewer and fewer people seem to recognize the value of religious liberty.”

“Religious liberty is not a prize to be won by those with the most votes,” said Moore in written comments. “Religious liberty is a natural right, granted by God. We are glad to stand with others in contending for soul freedom for everyone, not just for those who are part of our churches.”

Eric Baxter, senior counsel of the Becket Fund for Religious Liberty, said in a written statement, “Religion is part of the human experience and carries into all aspects of life for persons of faith. Employees shouldn’t have to wear a sign that says ‘I’m religious’ before they are protected by our civil rights laws that prohibit religious discrimination.”

The case involves Samantha Elauf, who sought a job at an Abercrombie store in Tulsa, Okla., when she was 17 years old. Reportedly, she knew before an interview with a store manager the retailer’s dress code banned hats but also understood the company had hired a Jewish worker who wore a yarmulke. She wore a headscarf to the interview but did not tell the interviewer she wore it as a part of her Muslim faith. The store manager did not ask Elauf why she wore the headscarf. Elauf was not informed Abercrombie refused to let employees — known as “models” in the chain — wear headscarves.

The store manager recommended her hiring, but the district manager made her lower Elauf’s ratings to avoid hiring her when he learned about her headscarf.

During oral arguments, Ian Gershengorn, deputy solicitor general with the Department of Justice, said the EEOC’s position is when the need for a religious accommodation is demonstrated “that is sufficient notice for an employer to be on notice.”

That should begin a dialogue between the employer and prospective employee, he told the justices. “What they can’t do is what they did here and assume through a stereotype that there was going to be a need for accommodation, and then say, having assumed that, ‘I don’t have any obligation to actually try to accommodate that,'” he said.

Associate Justice Antonin Scalia seemed to echo the 10th Circuit’s reasoning, saying the difficult questions could be avoided by placing the burden on the potential employee to say, “I’m wearing the headscarf for a religious reason.”

Scalia said, “That avoids all problems. Once you notify the employer that it’s for a religious reason, you got ’em.”

Representing Abercrombie, Shay Dvoretzky told the justices, “[T]he employer’s knowledge has to be traced to the employee in some way. In the typical case, that is going to come directly from the employee because of the individualized and personal nature of religion.”

Ruth Bader Ginsburg said, “But here the employee had no reason to think that there was anything offensive about her dress. How can she say, by the way, ‘I have a religious reason for wearing this headscarf,’ when from everything, from all appearances, the employer doesn’t care.”

After the arguments, Elauf expressed her gratitude to the EEOC for taking her case to court. “I am not only standing up for myself, but for all people who wish to adhere to their faith while at work,” she said. “Observance of my faith should not prevent me from getting a job.”

The high court is expected to issue an opinion in the case before the end of its term, which likely will be in late June.

The case is EEOC v. Abercrombie & Fitch.

— by Tom Strode | BP