Discrimination in employment, religious symbols and the “actual knowledge” of the employer
| Author | Zia Akhtar |
| Date | 01 June 2019 |
| DOI | 10.1177/1358229119837470 |
| Published date | 01 June 2019 |
| Subject Matter | Articles |
Article
Discrimination
in employment,
religious symbols
and the “actual knowledge”
of the employer
Zia Akhtar
Abstract
The Title VII of the US Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq.,as
amended (“Title VII”), prohibits employers with at least 15 employees (including private
sector, state, and local government employers), as well as employment agencies, unions,
and federal government agencies, from discriminating in employment based on race,
color, religion, sex, or national origin. It also prohibits retaliation against persons who
complain of discrimination or participate in an Equal Employment Opportunity investi-
gation. The US Equal Employment Opportunity Commission (EEOC) is responsible for
enforcing federal laws that prohibit workplace discrimination and it has intervened by the
federal body to prevent religious discrimination by corporations which seem to be
breaching the law by discriminating against their employees. In EEOC v. Abercrombie &
Fitch 575 U.S. ____ (2015), the US Supreme Court held that a religious practice of an
employee should be accommodated if it does not cause “undue hardship.” The Court
then formulated the principle that applicant does not have to show that the employer
had “actual knowledge” of the applicant’s need for accommodation. Instead, the Court
held that “an applicant need only show that his need for an accommodation was a
motivating factor in the employer’s decision.” This has given the scope to a Chapter VII
definition that stops short of strict liability but binds the employer to facilitate the
employee where religious symbols are concerned. This article reviews the recent case
law on discrimination in the work place and the disparate treatment test interpreted by
the Supreme Court in the framework of employment law for religious employees and
Gray’s Inn, Sussex university, Sussex, UK
Corresponding author:
Zia Akhtar, Gray’s Inn, PhD candidate, Sussex university, Sussex, UK.
Email: zakrider@gmail.com
International Journalof
Discrimination and theLaw
2019, Vol. 19(2) 125–149
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/1358229119837470
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argues that the employer’s actual knowledge requirement depends upon the circum-
stances of each case.
Keywords
Civil Rights Act 1964 Title VII, disparate treatment provision, direct knowledge, actual
knowledge
Introduction
The Civil Rights Act (CRA) of 1964 created protections for civil rights across a wide
spectrum, including religion.
1
Title VII of the CRA prohibits discrimination in employ-
ment on the basis of race, color, religion, national origin, or sex,
2
and the denial of
reasonable accommodation for sincerely held religious practices, unless the accommo-
dation would cause an undue hardship for the employer. It also prohibits the workplace
or job segregation based on religion; workplace harassment based on religion; retaliation
for requesting an accommodation (whether or not granted), for filing a discrimination
charge with the Equal Employment Opportunity Commission (EEOC), for testifying,
assisting, or participating in any manner in an EEOC investigation or for opposing
discrimination. This has led to compensation or equitable relief depending on the litiga-
tion.
3
The Court have established the principle that the disparate treatment proscribed by
Title VII encompasses any consideration of a protected status category that causes an
adverse employment-related decision, regardless of whether this proscribed consider-
ation is animus-based.
4
The issue is the employer’s actual knowledge of the requirement
of disparate treatment has been the issue of concern and the burden of proving non-
discrimination has been conveyed to the employer.
While Title VII and the related regulations provide a broad prohibition on discrim-
ination based on religion as it is defined alone, section 703 of Title VII more specifically
defines unlawful employment practices under the CRA. This section prohibits employers
from using religion as a basis for hiring or discharging any individual. It further prohibits
employers from discriminating “with respect to his compensation, terms, conditions, or
privileges of employment” because of the individual’s religion.
5
The section also pro-
hibits employers from limiting or separating employees or applicants “in any way which
would deprive or tend to deprive any individual of employment opportunities or other-
wise adversely affect his status as an employee ...”
6
This definition of religion forms the basis of requirements for employers under Title
VII. Under the statutory definition, employers cannot use an employee’s (or applicant’s)
religious observance or religious prac tice against the employee if the employer can
reasonably accommodate the observance or practice without undue hardship on the
business. If an employer does discriminate based on a religious observance or practice
that can be reasonably accommodated, the employer may be in violation of Title VII’s
prohibition on discrimination on the basis of religion.
7
When this is disputed religious
practices and observances are generally considered “to include moral or ethical beliefs as
126 International Journal of Discrimination and the Law 19(2)
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