Thinking Slow About Abercrombie & Fitch: Straightening out the Judicial Confusion in the Lower Courts
34 Pages Posted: 8 Aug 2018 Last revised: 24 Sep 2018
Date Written: July 19, 2018
In Abercrombie & Fitch, the U.S. Supreme Court fundamentally changed the way that Title VII religious accommodation cases are litigated and evaluated. This paper analyzes Abercrombie, explains how the Court eliminated religious accommodation as a freestanding cause of action, and suggests an altered proof framework for plaintiffs seeking an accommodation. The paper also explores the conflict between employee privacy rights and classic proof requirements for religious sincerity. The lower courts have largely failed to apprehend the change mandated by Abercrombie, with the result that their opinions are in disarray. The paper includes a chart organizing the diverse lower court opinions.
Keywords: Abercrombie & Fitch, Title VII, religious accommodation, prima facie elements, religious disparate treatment, religious sincerity, privacy of religious belief
JEL Classification: Z12,J70,J71, J83, J58, K31, K41, K42
Suggested Citation: Suggested Citation