THE BLOG

Our Brother's Keeper

12/12/2013 03:05 pm ET | Updated Feb 11, 2014
  • Dwayne Leslie Director of Legislative Affairs, General Conference of Seventh-day Adventists

Americans are given extremely wide latitude in terms of how they are able to worship and express their beliefs (or whether to worship at all). While not exclusively an American phenomenon, it is fair to say that the United States does better than most other countries around the world in the area of religious freedom.

That's why cases like Equal Employment Opportunity Commission v. Abercrombie & Fitch, filed after a young Muslim woman was denied a sales position in 2008 because her head covering did not comply with the retailer's "look" policy -- despite having scored high enough during her interview to have been hired both overall and on "look" -- are extraordinarily disturbing.

After a federal district court provided a summary judgment in favor of the EEOC and Samantha Elauf in 2011, the United States Court of Appeals for the Tenth Circuit recently reversed that decision, placing an unfairly high burden on applicants who need religious accommodation from a prospective employer in the process.

Because one of the tenets of our church is to actively protect religious liberty not only for our members, but also for other Christians and non-Christians alike, the General Conference of Seventh-day Adventists today filed an amicus, or "friend of the court," brief in support of the EEOC's petition for rehearing. The brief has been joined by several other religious and public policy organizations committed to the protection of religious freedom, including some that are rarely on the same side of an issue, such as the American Civil Liberties Union and the National Association of Evangelicals.

Key facts of this case are not in dispute:

  1. In 2008, Ms. Elauf interviewed for a sales position at an Abercrombie & Fitch store in Tulsa, Oklahoma, and wore a hijab during the interview.
  2. The store manager with whom she interviewed (and had hiring authority) scored Ms. Elauf high enough both "overall" and on "look" to meet the store's hiring criteria.
  3. While the store manager never asked Ms. Elauf about her head covering, she later testified that she assumed the young woman was Muslim and dressed as she did for religious reasons.
  4. Because the store manager was unfamiliar with Abercrombie & Fitch's policy on head coverings, she consulted with her manager. This person also was unfamiliar with the policy and elevated the query to her own manager.
  5. This manager's manager responded that headwear did indeed violate store policy and that Ms. Elauf's score should be changed so that she was ineligible to be hired.

At the trial court level, the EEOC and Ms. Elauf's argument that Abercrombie & Fitch had engaged in religious discrimination in violation of Title VII of the Civil Rights Act of 1964 prevailed, and Ms. Elauf was awarded $20,000 in the damages-only jury trial. The Tenth Circuit's recent decision has now overturned this verdict.

For a variety of reasons, the Adventist Church et al., takes strong exception to the Tenth Circuit's ruling.

First, despite a number of relevant precedents, the court has placed the burden on an applicant to proactively ask for accommodation for her or his religious beliefs. Yet, in this and virtually any other potentially similar future case, how could the applicant possibly know of the employer's specific dress code? Our position (and one we believe is fully supported by Title VII) is that for applicants who meet a company's hiring standards but for whom the company has any reason to believe that a religious accommodation may be needed, it is incumbent upon the employer to raise this issue, not the individual. Under the Tenth Circuit's new standard, employers would be able to insulate themselves from the duty to accommodate via willful ignorance.

Second, this standard has a negative impact not just in "groom & garb" cases, but also on scheduling. Many national employers have implemented an online application process that inquires about availability. These employers often make adverse decisions regarding applicants based upon their unavailability, for example, on a Saturday (during which Jews, Adventists and Seventh Day Baptists would decline to work for religious reasons) yet provide no means by which to apprise the employer of the religious nature of a limited schedule, or to ask for a religious accommodation in the online application.

Finally, we believe that the Tenth Circuit failed to consider the wide-ranging impact of their decision. As the large number of organizations supporting this amicus brief demonstrates, there is tremendous concern well beyond the Muslim community about the weakening of Title VII that will take place if this ruling is to stand.

History shows that extreme vigilance is required where matters of religious liberty are concerned. When one established right is weakened or worse, it's that much easier to erode additional rights. That is why cases like EEOC v. Abercrombie & Fitch -- despite the fact that no members of our own faith are involved -- motivate the Adventist Church to action... and why we are proud to stand shoulder to shoulder with so many other people of faith and public policy organizations to advocate for a just outcome in this important case.

After all, are we not, as the Scriptures admonish, our brother's (and sister's) keeper?

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