Written by Don Byrd
The Baptist Joint Committee joined other religious liberty advocates in a friend-of-the-court brief last week in the case of E.E.O.C. v. Abercrombie & Fitch. Abercrombie is accused of violating the civil rights of a prospective employee by denying her a job due to her headscarf. Samantha Elauf wears the head covering (a “hijab”) in accordance with her faith. A jury initially awarded her $20,000 in damages, but the 10th Circuit Court of Appeals ruled in favor of Abercrombie.
The BJC’s brief urges the Supreme Court to overturn the 10th Circuit’s ruling, which would relieve prospective employers of religious accommodation requirements unless directly informed of the need for accommodation by the applicant. In this case, Elauf wore the hijab to her interview but did not tell her interviewer – who in turn did not ask – of its religious significance, or of her need for a religious accommodation as provided by Title VII of the Civil Rights Act.
Contrary to the 10th Circuit’s view, prospective employees should not bear the burden of initiating a conversation about a religious accommodation in such a case, the brief argues. Here is a snippet:
The Tenth Circuit may well have believed it fair to place that burden on an employee rather than the employer, given that the employee will often be in a better position to know why a particular work requirement conflicts with her religious beliefs. But . . . that is generally not true of job applicants, who typically will not learn about the pertinent work requirement unless and until the employer tells them. In any event, the Tenth Circuit’s burden-shifting scheme is not the approach Congress adopted. And the Tenth Circuit has no authority to amend the statutory scheme—especially in light of the principle . . . that civil rights statutes are to be broadly construed in favor of accomplishing their remedial objectives.
In short, there simply is no statutory justification for imposing on the employee the burden of proving in every case that she personally gave the employer “particularized actual knowledge” of the relevant work-religion conflict. . . .
The brief goes on to dispute the 10th Circuit’s holding that an employee’s religious belief must be accommodated only if it is an inflexible religious “requirement.” Such a distinction would improperly force courts to determine which religious beliefs are central and which are peripheral. Quoting the 7th Circuit in a different case, the brief argues that “a religious believer who does more than he is strictly required to do is nevertheless exercising his religion.”
You can read the brief here (pdf). A press release regarding the brief is here.
The Supreme Court is expected to hear oral arguments in the case sometime in the Spring.
