What the Supreme Court Said About Religious Expression at Work

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June 3, 2015
Jennifer C. Pizer

The Supreme Court agrees with the EEOC: Nondiscrimination means religious pluralism and problem-solving, not conformity and exclusions

On Monday the Supreme Court ruled in EEOC v. Abercrombie & Fitch, a case brought by the federal Equal Employment Opportunity Commission.

The case challenged an employer’s use of a supposedly neutral employee “look” policy against caps to refuse to hire a young Muslim woman, Samantha Elauf, because she wears a headscarf.

Learn More: Supreme Court Victory for Workers

The federal equal employment opportunity law— called “Title VII”—forbids employers from screening out job applicants because of race, color, sex or national origin, to ensure we have a fair and integrated workforce.

It also requires that employers “accommodate” workers’ religious needs when a workplace rule or practice would tend to exclude religious minorities. This is because standard social and business norms usually meet the needs of religious majorities automatically. Evenhandedness for minority faiths requires that employers be flexible, when doing so won’t create much burden on the business or other employees. That way, as long as true business needs are met, everyone can have a fair chance to make a living and contribute to our society and economy regardless of their religion.

Lambda Legal filed a friend-of-the-court brief in the case, explaining the lower court’s mistake when it rejected Ms. Elauf’s claim. That court said she should have volunteered her religious reasons for wearing the headscarf during her job interview, asked if it posed a problem and, if so, engaged the company’s representative in a discussion about what accommodation might reconcile her need for a head covering with the company’s business methods. But this “anticipate a religion problem and voice it” requirement?  The lower court invented it.

Like anyone else in her position, Ms. Elauf did not initiate a discussion about religion during her interview, because it went well, and there was no obvious reason to do so. It also did not occur to her to proactively bring religion into her interview, because she had been told in advance that her scarf would pose no problem. She certainly had no way of knowing that her interviewer’s decision to hire her was overridden later by a more senior manager — with whom Ms. Elauf had no interaction — who had a different opinion about her headscarf.

We were concerned about the court of appeals’ illogical, invented barrier to suit for at least three reasons:

  1. It has been a problem for decades that some federal judges impose limiting rules that block potentially valid employment claims. For LGBT people, this has come in the form of decisions saying it cannot be unlawful sex discrimination if a person was considered qualified for a job when presenting as a man, but no longer qualified when presenting as a woman, consistently with her true identity after gender-confirmation care.

    Likewise, courts have said it is not unlawful sex discrimination when a manager fires his subordinate, let’s call her “Janet,” after learning that the person she has been dating, “Robin,” is a woman, contrary to the manager’s gender-stereotyped view that Janet should date men and not other women.

    The EEOC and an increasing number of courts are seeing the error in both types of rejection of facially obvious sex discrimination claims. But these judge-made limits on who can challenge sex discrimination remain a problem on which we are focused intensely. The Abercrombie case considered the same type of problem in a related context. Monday’s Supreme Court decision is likely to help our work.

  2. Some employers believe homogeneity in the workforce reduces intergroup tensions and makes for easier management. But such employer preferences for conformity often are a problem for LGBT people. Some of us have a limited ability to adhere to gender-based stereotypes, and others feel wretchedly stifled when forced to conform just so supervisors or coworkers feel more comfortable.

    At the same time, social science research finds that encouraging diversity fosters creativity and productivity. So when our nondiscrimination laws allow pushback against employer preferences for sameness, those laws can enhance not just fairness but also the bottom line. That message is an important one for our movement.

  3. Employers’ desire for workplace conformity concerning religious expression is a problem for many of a minority faith.

    LGBT people often have parallel concerns about religion-related expression and expectations at work. Many feel that “most major faiths are unwelcoming.”

Religious Composition by Self-Reported Sexual Identity

We respect and support religious pluralism and co-existence—including at the jobs where Americans spend much of their time—because it is an essential feature of life in a free, diverse society. We also respect religious pluralism because LGBT people exist within all communities and all faith traditions. But not least, we respect religious pluralism because it is essential for the security and freedom of LGBT people, whether they are religious or not.

Lambda Legal’s longstanding work to oppose misuse of religion for discrimination centrally includes that religious liberty is not a right to insist that others conform to one’s own faith.

Each of us may choose a religiously inspired way of life, with minimal or extensive personal commitments. But among those commitments may not be refusing to do business, to hire or to rent housing, or otherwise to treat others less favorably than those who share and conform to one’s own religious beliefs, practices and expectations.

Given the power that bosses often have over workers, Monday’s decision was welcome confirmation that the EEOC is doing its job with an accurate compass and that we should continue to litigate to enforce the words on the page of our civil rights laws.

Lambda Legal is grateful to the Anita May Rosenstein Foundation for partially funding the work of the Law and Policy Project.