Document Type

Article

Publication Date

1-1-2012

Abstract

The purpose of this article is to argue that the federal courts’ prevailing interpretation of Title VII with respect to religious attire in the workplace is inconsistent with the law. I maintain that Title VII prohibits employers from either placing employees in the back or refusing to hire individuals with conspicuous articles of faith due to any actual or perceived social discomfort with the employee’s religion-based appearance. I am persuaded of this for two independent reasons. First, placing an employee out of public view does not constitute a “reasonable accommodation” under Title VII because the statute’s general anti-discrimination provision expressly prohibits employers from “segregating” employees. There is no basis for suspecting that this clear, broad negative on employer conduct does not extend to employees whose appearance is dictated by their religious beliefs. To cure the defect in its approach, I encourage a court sitting in review of a religion-based segregation case to analyze an employer’s proffered “reasonable accommodation” in light of this general anti-discrimination provision. In doing so, the religious rights of employees would be maximized in accordance with their statutory limits. Second, an employer may not base its decision to segregate an individual with a religiously-mandated appearance on customers’ possible or demonstrated discriminatory preferences. Where courts enable employers to rely on such actual or perceived biases, they allow employers to give practical effect to those biases. By prohibiting customer bias from supporting the segregation described, courts would also clarify that religion-based appearance discrimination is on par with and deserves the same treatment as racial discrimination; in the civil rights era, courts did not permit customer bias to justify discrimination against African-Americans. While employers may contend that their practices reflect non-discriminatory corporate identities rather than customer stereotypes, in my estimation this sleight-of-hand falls flat—a corporate “brand” simply codifies and reflects consumer preferences, including stereotypes.

Publication Title

New York University Review of Law and Social Change

Volume

36

First Page

103

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