CLEAR AS MUD

From the early days of the Republic, it has been the province of the Judiciary – that is, ultimately, of the Supreme Court – to say what the law is.  Outside of constitutional questions, “the law” means the statutes Congress enacts.  And since those statutes are not always written with exemplary clarity or foresight, the results in Court are not always as clear cut as one would like either.

So it was with a case that started when a young Muslim woman interviewed at Abercrombie and Fitch wearing a headscarf.  This was against the company’s dress code at the time, and she was refused a job.  Employers and employees alike wanted to know from the Supreme Court if, under the Civil Rights Act, it is an employee’s duty to say they are wearing a particular item for religious reasons which the employer must accommodate, or whether it is instead an employer’s duty to ask.

The law, the Supreme Court answered, does not work that way.  An employee (or candidate) may not be fired or rejected if the need for a religious accommodation is a motivating factor.  What the employer knew or did not know, what it should know or had no reason to suspect, will only be part of the evidence as to whether religion was a motivating factor in its decision.

This leaves each case hostage to its individual facts, and guarantees lengthy litigation digging into people’s motives, knowledge, or guesses.  It also favors major religions over others.  Nearly all interviewers will recognize a cross necklace, a hijab, a kippah, or a turban as a religious item.  Less widespread religions will be easier to suppress.  What, for instance, should an employer know about the requirements of Jediism? (Yes, there actually is a Jedi Church.)

In any event, employers should be ready to expect more and more intricate disputes, and may welcome the help of a good attorney.