Right to religious freedom is a fundamental human right which has been enshrined in several international human rights treaties such as Article 1 of the UN Charter, Article 18 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) along with Article 27 of the ICCPR, Article 9 of the European Convention for the protection of Human Rights (ECHR), etc. and several other regional human rights treaties. Freedom of religion include freedom of religious belief and practice, thought and conscience (absolute right/forum internum) and the freedom to manifest one’s religious belief (not absolute/forum externum). Being member states of such treaties, a state is obliged to give such religious freedom to its citizens, regardless of whether under the domestic law such freedom is guaranteed or not. The terms religion or religious beliefs etc. however, have not been explicitly defined in these international treaties and therefore the understanding of what constitutes as religious freedom has been varied and had differing implications in different national contexts.
The concept of separation of the state and religious institutions or secularism is adopted by many nations today as their national stand on religion. Secularism and the related notion of state neutrality, even though is based on the same concept of the separation of the state and the church, has different meanings and implications in different countries, depending on their constitutional and other statutory protections or lack thereof that can be found. The United States was founded on the constitutional ideals of religious freedom, and liberty and justice for all and the first western country to declare themselves as an explicitly secular nation. In this backdrop, I discuss the case of EEOC v. Abercrombie & Fitch Stores Inc. to analyze the nature of American secularism, how American courts have viewed neutrality with regards to secularism and finally, the right to religious freedom and its link with right against religious discrimination.
The brief background of the case:
Samantha Elauf had applied for a job at her local Abercrombie and Fitch store (A&F). In her interview she was given a grade by her interviewer which qualified her to be hired. Elauf, as practicing Muslim wears a headscarf and did so that day in her interview as well. Under A&F’s ‘looks policy’ the employees were required to follow the ‘no caps’ rule. It applied to all employees equally. During Elauf’s interview, there was no discussion of anything about Elauf’s religion and religious practices or the stores looks policy. To make her final decision regarding Elauf, she informed the district manager that she believed, Elauf wore a headscarf because of her religious beliefs. Consequently, the district manager told her not to hire Samantha since her wearing her headscarf would be in violation of the looks policy of the store. Following this, the Equal Employment Opportunity Commission (EEOC) sued Abercrombie and Fitch stores on behalf of Elauf on the grounds of disparate treatment claim under Title VII of the Civil Rights Act of 1964.
The district court rejected Abercrombie’s arguments and delivered a judgement in favour of the EEOC, awarding Samantha a compensation of $20,000. Thereby Abercrombie appealed in the Tenth Circuit Court where the court reversed the decision of the district court and gave a summary judgement in favour of Abercrombie. The reasoning given was that because Elauf did not discuss her need for a religious accommodation, the employer could not have possessed actual knowledge that there was any requirement for it. In the absence of such actual knowledge, there cannot be a case of intentional discrimination. EEOC appealed again and the ended up in the Supreme Court (SCOTUS) where the EEOC won on the grounds of intentional discrimination and Abercrombie’s arguments failed. It was held that the establishment of actual knowledge of an employee’s need for some religious accommodation is not necessary to bring in a claim of disparate treatment. The claimant just needs to prove that their religion was a ‘motivating factor’ to deprive them of the opportunity, in cases where such religious accommodation could have been made without facing undue business hardships. Motive is the essential ingredient here.
The First Amendment of the United States Constitution prohibits the establishment of any national religion and guarantees the protection of citizens’ religious expression or non-expression, indicating the separation of the church and state. Also known as the establishment clause and the free exercise clause respectively as ascertained through Supreme Court interpretations. Having the effect of making all religions equal before the eyes of law. In other words, it can be said that the US constitutional secularism establishes state neutrality or non- preference on the subject of religion. This idea of state neutrality as a related concept of secularism, has also been adopted by several other nations as well, such as France, Germany, Turkey, etc. However, state neutrality has differing meanings and therefore, their implications are also varied. For example, the French idea of secularism is Laïcité which establishes strict separation of the state and the church and the enforced the French collective public identity over making religious exceptions. This is evident from the recent decision of France to place a complete ban on burkhas. Turkey also follows laïcité secularism with strict divide. Both establish state neutrality in the sense that as a matter of public policy the state shall not engage with any religion. Religion and state follow absolute non-interference. For example in the Leyla Sahin case, a student approached the ECtHR and claimed that Trukey’s ban on headscarves in universities is discriminatory and in contravention with the ECHR. It also deprived her from getting an education and therefore in violation of domestic law as well. It was held that Turkey had a legitimate aim to restrict religious manifestation such as wearing of the headscarf which was to safeguard its secular values and by the rule of margin of appreciation, this interference with the right of religious freedom by the Turkish govt. was permissible and not in violation with the international treaty and also ruled that there was no restriction on her right to get education.
In contrast, countries such as Germany and the United States, secularism means that while the state has to maintain neutrality with regards to religious bias, religious pluralism is a reality which is respected and also protected in the public sphere and not only in private sphere. Therefore, neutrality in this sense refers to non-preferentially accommodate religion and religious practices and establishes a beneficial relationship between religion and government. In other words the state cooperates and promotes religious pluralism in a neutral, manner.
Title VII of the Civil Rights Act makes it illegal for an employer to discriminate on the basis of a person’s gender, race, colour, national origin and religion. The meaning of religion includes religious beliefs and practices. I asserted that the First Amendment establishes secularism in USA but it is not strict in the sense of having complete separation of the government from religion. In the famous Lemon v. Kutzman case, it was held that separation of the church and the state cannot be absolute and some form of engagement was a possibility. The lemon test which was carved out of this case, highlighted the importance of neutrality even in such situations, neither advance or restrict any religion or make any law which results in excessive juxtaposition with religion. In the Abercrombie case, the court ruled that under Title VII of the Civil Rights Act, religious practices are given a favoured treatment because it lays down the need to consider religious accommodations which are possible without disrupting the business. I assert that secularism is two-fold in the US. One that the constitution ascribes with regards to state practices- the 1st amendment and the separation of church and the state but not in a very strict divide, as discussed above. In this way, allowing religious expression and manifestation. But the statue relating illegal employment practices, promoting equal opportunity paints a slightly different language- the language of Title VII, as the majority held in the Abercrombie case, the neutrality of secularism doesn’t mean complete separation but instead active engagement to accommodate religious rights and beliefs in an equal manner. In this way, the statue not only ensures religious freedom, but also links it to having a right against religious discrimination with regards to employment opportunities.
The Abercrombie decision by highlighting the accommodation duty in cases of religious beliefs and practices have however, essentially widens the scope of a disparate treatment claim or intentional discrimination under Title VII. With this judgement, the SC holds that even in cases of neutral policies they must make accommodation when necessary. The implication then becomes that suppose an employer always had a policy on their employees always having to wear nail paint while working, however, because of a person’s religious belief the person refuses to wear nail paint and she gets rejected for the position since it is an essential store policy. Even though the rule was made without any malafide intention, because the employer has the knowledge that the employee’s religious beliefs comes in conflict with important store rules, has to reject them. The employer can now be sued for disparate treatment. The only possible defense available to the employer now would be to argue the difficulty in accommodating the complainant’s religious beliefs without causing undue business harm. Something that has the possibility of being extremely subjective and so application of arbitrary standards would be a strong possibility. Earlier the understanding was that a neutral policy could give rise to a disparate impact claim, i.e., rules that are facially neutral in character but fall harshly on certain groups or communities. Now it all comes down to the motive of the employer and if accommodations which could have been reasonable made, were not made. Under Title VII of the Civil Rights Act, intentional discrimination without knowledge of the practice which happens to be religious does not stand since it is designed to combat improper motive. Lastly, in this case the court did not go into the question whether reasonable accommodation could have been made by A&F to decide if such a neutral policy was essential to the business. It is important to note that no advertising is done by Abercrombie and marketing depends on ‘a holistically brand based sensory experience in the store’. Therefore, looks of the employees become an essential business policy of the brand, which in my opinion cannot be accommodated without compromising the brand’s outlook.
Several shortcoming also arise in this analysis however, the cases from EU were tried in international courts for violation of treaty provisions while here the discussion was only about US laws by the SCOTUS. For example in the case were facts broadly the same as the Abercrombie case was brought to the Court of Justice of the European Union (CJEU ). Here the CJEU after analyzing the relevant EU treaty provision, held that neutral laws which apply indiscriminately cannot amount to direct discrimination. Also in the Abercrombie case, state itself was not challenged in this case therefore, the question of national interest or national identity was not considered.
 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html %5Baccessed 29 September 2021]
 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 18;
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 18 and 27
 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9
 Peter Danchin, ‘Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law’ (2008) Yale Journal of International Law 1-66
 Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., 575 U.S (2015)
 Civil Rights Act, 1964 (US)
 U.S. Constitution, Amendment 1 december 15, 1971
 Everson v. Board of Education 330 U.S. 1 (1947)
 Danchim (see 4) 21
 Ibid 25
 Sahin v. Turkey, Application no. 44774/98, Council of Europe: European Court of Human Rights, 10 November 2005, available at: https://www.refworld.org/cases,ECHR,48abd56ed.html %5Baccessed 1 October 2021]
 Danchim (see 4) 29-37
 Lemon v. Kutzman 403 U.S. 602 (1973)
 Achbita v. G4S Secure Solutions NV 2017] EUECJ C-157/15
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