Michael Porter is a partner with Miller Nash Graham & Dunn LLP, with offices in Oregon and Washington. You may contact him at Mike.Porter@MillerNash.com.

While some students may flock to Abercrombie & Fitch for the latest fashion trends, college and university administrators concerned with legal compliance can use a recent case involving the retailer to raise awareness about religious discrimination and religious freedom.

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86, the U.S. Supreme Court ruled that employees or applicants can prove intentional religious discrimination as long as they have evidence that the employer assumed the employee or applicant might need a religious accommodation.

In that particular case, a practicing Muslim applied for a job in an Abercrombie clothing store and, consistent with her faith, wore a head scarf to her interview. The interviewer gave the applicant a high rating, but the district manager instructed the store to not hire the applicant because the head scarf would violate the company dress code, which banned caps.

The Equal Employment Opportunity Commission sued Abercrombie on behalf of the applicant. The court ruled in favor of the applicant. Even though the applicant hadn’t requested an accommodation, Abercrombie’s assumption that she needed an accommodation could serve as evidence of religious discrimination.

Understand broader scope of religious laws, rights

But the Abercrombie case highlights only one narrow segment of religious discrimination laws and rights concerning religious freedom: Was the employer potentially violating Title VII of the Civil Rights Act of 1964 by choosing not to hire the applicant? But religious discrimination and religious freedom have many additional components. Employees have rights to accommodations for religious practices and beliefs — and in some situations, students do, too. Expression based on religious beliefs is often also protected by the First Amendment, and private institutions have religious rights as institutions.

In most workplaces, politics and religion are almost taboo. In contrast, most institutions of higher education welcome robust discussion of religious and political views as part of the learning environment and commitment to academic freedom. Institutional comfort with these topics can lead to a false sense of security that because the campus culture is open and welcoming of religious viewpoints, religious discrimination is unlikely to occur. When religious topics are openly discussed, however, the likelihood of a person’s perception that she is subjected to discrimination may be higher than in places in which people tend to avoid religious discussion.

Consider the following scenarios:

  • A campus organization invites a speaker with strong religious or antireligious beliefs, prompting media coverage. The coverage prompts workplace discussions around campus. From faculty meetings to facility department staff meetings to student residence halls, the speaker’s viewpoint and whether the institution should have brought the speaker to campus are hotly debated. While most discussion participants recognize or appreciate the discussion as part of the diversity on campus, a campus community member may feel offended or belittled based on his religious beliefs.
  • An institution embraces and celebrates a range of holidays. A staff member expresses that she feels marginalized because her “traditional” holiday isn’t given the attention it once had. The staff member is then criticized in a performance review for not embracing institutional diversity efforts.
  • A student is required to take a class that includes group work. The student indicates he has a religious objection to working with female students and requests to work only with male students (or vice versa).
  • An institution has a requirement that first-year students live on campus in residence halls. A student requests an exemption for religious reasons.
  • A student who is outspoken about her religious beliefs is accused of religious harassment by other students and disciplined after an investigation determines that the student created a hostile environment.
  • A student group seeks to exclude from its membership students who refuse to affirm a commitment to particular religious beliefs.

Each of these situations has its own potential legal challenges and demonstrates the tension between an institution’s commitment to exposing the campus community to a broad scope of ideas while at the same time ensuring individuals’ rights to exercise their own religious beliefs.

Reduce legal risk

To limit your institution’s legal risk, first assess the landscape of rights and freedoms applicable to it. A public institution has very different obligations from a private institution, and private religious-affiliated institutions may be able to claim exemptions from certain laws that implicate religious beliefs.

Religion is often notably absent from discrimination- and harassment-related training for employees and students. Ensure that members of the campus community understand that if they believe they’re subjected to religious discrimination or harassment, the institution will address their concerns under its policies prohibiting such conduct.

Religious expression and freedom are important parts of the fabric that makes up most college campuses. The Abercrombie case serves as a valuable reminder to ensure that your campus stays attuned to how individual rights are woven into that fabric.

Source: Campus Legal Advisor