Religious discrimination is treating a person differently because of what they do and believe in. This kind of discrimination infringes the constitutional right of freedom of religion (Katz, 1952).
Equal Employment Opportunity Commission (EEOC) Vs Abercrombie and Fitch Stores Inc
In this case, a young Muslim woman claimed that Abercrombie and Fitch denied her a job because she wore a black headscarf to the interview.
Facts
Samantha Elauf, who is the Muslim woman, went to Abercrombie and Fitch Company for a job interview. During the job interview, the interviewer failed to inquire about her headscarf, but assumed she was Muslim. Therefore, Samantha did not ask the company whether they might offer her religious accommodation because of her headscarf. The Company rejected her application because it would violate their clothing policy, which was wearing caps, and black attire was prohibited. The EEOC sued the company on behalf of Elauf.
When the issue was brought before the federal judge, he sided with the teenage, Samantha who was seventeen years at the time. On appeal, the panel ruled in favor of the company because in its opinion Fitch and Abercrombie could not be held liable for not providing religious accommodation; this is because no employee or job applicant had ever given notice of clash between religious practices and workplace rules and regulations.
In the High Court, the main issue was on who bears the responsibility of identity an issue that might result in potential religious accommodation, is it an employer or job applicant. According to the deputy solicitor general, the burden lied on the employer to discuss the matter and come up with resolutions to solve the matter. To him, the company should have announced that it does not allow salesclerks to wear headscarves for it is not common knowledge. With such a notice, the job applicant goes ahead to apply for a religious accommodation.
Justice Scalia, Roberts and Kennedy raised a point of up to what level is there a potential clash and when is the accommodation allowed. Solicitor Gershengom reply was that where there is an assumption of a religious practice and acts upon it, then that is sufficient knowledge. This supports Elauf for the assistant manager did not question her attire, therefore, he presumed that she was Muslim. The Solicitor states where there is a potential clash then dialogue should come in to solve the matter, the company failed to do so.
The company argued that Samantha had inquired about the dress code from a friend. Justice Alito questioned the company's dress code by asking whether if another job applicant came for an interview with a black blouse will be denied the job. He also added that it was wrong for the company to assume that Elauf would be wearing a headscarf everyday if they did not take the step of first asking if she is Muslim. Maybe she was having a bad hair day and it was more convenient and presentable to cover her head for an interview. The matter is in the Supreme Court and is to be decided in June.
One of the defenses that the store can use is Bona Fide Occupational Qualification (BFOQ); it can claim that it was not being discriminatory, and was just following work policies and procedures which in this case is it does not allow head scarves and black clothing (Collins, 2003). Another defense available to the defense is failure to notify employer; it was up to Elauf to inform about how her religion requires having headscarves on and not the employer. In Elauf's defense, she can claim such a clothing restriction is not common knowledge and the employer should have asked her if she had a problem with the company's dress code.
This issue could have been mitigated through dialogue where the company could have taken the initiative to know her religion first without using assumptions. Depending, with her religion, both parties could have discussed whether a religious accommodation can be accepted (Smith, 2003). Factors such as work performance could have been key in deciding whether the religious accommodation could have been allowed. The law requires an employer to be reasonable in accommodating religion unless it brings a burden to work and affects operation in the workplace.
Religion discrimination is a different kind of work malpractice because it is cumbersome to prove. In this case, the store can end up being fined but not for religion discrimination for they can evade it by claiming Samantha failed the interview in other areas not just the dress code. Firms practicing religious discrimination use another regulation to prevent employees from a particular group from joining such companies.
References
Collins, H. (2003). Discrimination, equality, and social inclusion. The modern law review, 66(1), 16-43.
Cragun, R. T., Kosmin, B., Keysar, A., Hammer, J. H., & Nielsen, M. (2012). On the receiving end: Discrimination toward the non-religious in the United States. Journal of Contemporary Religion, 27(1), 105-127.
Katz, W. G. (1952). Freedom of Religion and State Neutrality. U. Chi. L. Rev., 20, 426.
Smith, A. D. (2003). Chosen peoples. New Jersey: John Wiley & Sons, Ltd.
