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Abercrombie Religious Freedom Ruling a Victory for Social Justice Movements

June 11, 2015

On June 1, the Supreme Court championed two values at the core of our social justice work — religious freedom and workplace non-discrimination protections. In EEOC v. Abercrombie & Fitch, a Muslim woman was denied employment at the retail clothing store because her headscarf violated the store’s policy against “caps” and other headwear. Writing for the majority, Justice Scalia held that “if the applicant actually requires an accommodation of [her] religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates [Title VII’s prohibition against intentional discrimination]”. In other words, an employer cannot avoid granting religious accommodations by simply not hiring someone it suspects would need the accommodation.

Samantha Elauf, plaintiff (Photo: Reuters/Jim Bourg)

Samantha Elauf, plaintiff in EEOC v Abercrombie & Fitch (Photo: Reuters/Jim Bourg)

By highlighting the core purpose of religious freedom – to protect people against discrimination – this decision affirms the values of the LGBTQ community. Upholding workplace protection for religious minorities reinforces the importance of similar protections for queer, trans, and gender non-conforming employees.

In particular, the Court’s clarification of the mens rea requirement for Title VII Intentional Discrimination claims bodes especially well for LGBTQ employees. The court held that an “unsubstantiated suspicion” of one’s religious affiliation is sufficient to constitute an improper motive in violation of the statute. Actual knowledge of a person’s religious affiliation is not necessary for a claim. Applying this to the LGBTQ context, prospective employees would not need to “out” themselves in order to state a claim for discrimination in hiring. Refusing to hire someone due to a mere suspicion of his or her queer, trans, or gender non-conforming status violates Title VII.

The Abercrombie decision is a form of religious freedom that should be celebrated. Laws that support a right to express one’s religious identity safeguards religious liberty by protecting people against discrimination. Employees can “be themselves” so long as their religious identity and practices do not unduly burden their employer.

This genre of religious freedom, however, stands in stark contrast to other kinds of religious accommodations, wherein people use their religious beliefs to exclude others from a good, service, or right. The magistrate opt-out provision (SB2) that just passed in North Carolina, for example, allows magistrates with religious objections to refuse to perform same-sex marriages. It does not protect magistrates from discrimination, nor does it reflect a desire to express one’s religious identity. As Governor McCrory articulated before he vetoed the bill–and before his veto was overriden by the House–, magistrates are simply being asked to do their jobs.

Instead, the opt-out provision recently passed in North Carolina perpetuates discrimination against the LGBTQ community and potentially many others.

Social justice requires that we distinguish between two kinds of religious freedoms: those that protect people from discrimination and those that are harmful to others. Accommodations that prevent discrimination and allow people to express their religious identities are important victories in the fight for social justice. Those that subvert this intention and inflict harm on others are missteps on this path. Let us celebrate the Court for supporting the former.

by Courtney Miller,Holley Law Fellow, National LGBTQ Task Force and Beckham Rivera, Holley Law Fellow, National LGBTQ Task Force

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