Title VII Religious Discrimination and Contemporary Socio-Religious Issues in a Post-9/11 America: The Scope and Shortcomings of Religious Discrimination Protection Under Title VII

TITLE VII RELIGIOUS DISCRIMINATION AND CONTEMPORARY SOCIO-RELIGIOUS ISSUES IN A POST-9/11 AMERICA: THE SCOPE AND SHORTCOMINGS OF RELIGIOUS DISCRIMINATION PROTECTION UNDER TITLE VII Prerna Soni* INTRODUCTION ..........................................................................................600 I. CURRENT SCOPE OF RELIGIOUS PROTECTION FOR EMPLOYEES UNDER TITLE VII ............................................................................601 A. Failure to Provide a Religious Accommodation ......................602 B. Disparate Treatment ................................................................603 C. Hostile Work Environment ......................................................604 II. STATUTORY SHORTCOMINGS IN RELIGIOUS DISCRIMINATION LAW UNDER TITLE VII ...................................................................606 A. Vagueness in Failure to Accommodate Framework ................606 1. The Vagueness of “Undue Hardship” ................................607 2. The Vagueness in the “Reasonableness” of an Accommodation .................................................................608 B. Lack of Cooperation Criteria for Employers ...........................610 III.CONTEMPORARY ISSUES IN RELIGIOUS DISCRIMINATION ...................611 A. The Legality of “Look Policies” Under Title VII ....................611 B. Segregation as a Means of Accommodation ...........................614 C. Federal Regulations Preventing Accommodation ...................616 IV.THE ROLE OF SOCIAL CONSTRUCTS IN DISCRIMINATION LAW ...........617 * Prerna Soni is a 2014 J.D. candidate at the University of Pennsylvania Law School. She graduated from Binghamton University in 2011 with a B.S. in Finance and a B.A. in Philosophy Politics & Law. Prerna would like to thank Gurjot Kaur and the Sikh Coalition for inspiring this comment with the meaningful work that they do everyday. She would also like to thank the Journal of Business Law Editorial Board for their guidance. Finally, she would like to thank her parents for their endless support and encouragement. 599 600 U. OF PENNSYLVANIA JOURNAL OF BUSINESS LAW [Vol. 16:2 A. Immutability ............................................................................618 B. Social Perception of Religion and its Effects on Employer Policies ....................................................................................618 C. Social Views of Religious Discrimination Post 9/11 ..............620 V. A DYNAMIC AND EFFICIENT APPROACH TO THE FUTURE OF RELIGIOUS PROTECTION .................................................................622 A. Potential Backlash to Stricter Protection of Religious Rights.......................................................................................622 1. Balancing Employers’ Rights with Religious Rights ..........623 2. Employers’ Avoidance of Liability from Backlash Discrimination Claims .......................................................625 B. The Ineffectiveness of Legislation Absent a Change in Social Perceptions ...................................................................627 CONCLUSION ..............................................................................................628 INTRODUCTION Though guaranteed by the Constitution, religious freedom in the United States is by no means absolute. People feel pressure every day to forego their religious practices in favor of practicality, social acceptance, and even safety. Though outright discrimination in the workplace may be illegal, people’s inherent attitudes and biases create significant issues and affect law and social policy. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination in the workplace on the basis of religion. However, like any piece of legislation, Title VII is not without its flaws. The source of religious discrimination itself needs to be examined before Title VII can be amended in such a way as to actually combat that discrimination. Both the advantage and the fault of Title VII can be found in (1) its vagueness and (2) its vulnerability to contemporary social issues. Like any ambiguously worded statute, courts are faced with the problem of interpreting Title VII. Unfortunately, the resulting interpretation often favors employers rather than employees. The burden for an employee to show discrimination under Title VII is exceptionally high, especially given its vagueness. Title VII is a living piece of legislation, expanding its original protections against racial discrimination in 1964 to include new categories of discrimination as society demands.1 As more types of discrimination are 1. See EEOC, Federal Laws Prohibiting Job Discrimination Questions and Answers, (last modified Nov. 21, 2009), http://www.eeoc.gov/facts/qanda.html (discussing the various pieces of federal legislation that protect against discrimination in the workplace, including the Age Discrimination Act of 1967,,the Rehabilitation Act of 1973, and the Civil Rights 2014] TITLE VII AND RELIGIOUS DISCRIMINATION 601 deemed unreasonable by society, legislatures have responded with amendments to make such discrimination unlawful. Though this leaves room for Title VII to fully expand to protect against all forms of discrimination,2 it also leaves room for discrimination that reflects social perceptions and biases. Social attitudes towards religion affect both employer practices and the interpretation and implementation of the law. Because of its vagueness, Title VII allows judges to implement the law in ways that often reflect social sensitivities towards religion and religious discrimination. In modern America, there is significant religious discrimination against perceived Muslims.3 Anti-Islamic sentiment has swept through the country in the past decade, affecting both employer behavior and social perception. I. CURRENT SCOPE OF RELIGIOUS PROTECTION FOR EMPLOYEES UNDER TITLE VII Title VII prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”4 As established by the Equal Employment Opportunity Commission (“EEOC”), the common claims for a religious discrimination under Title VII include a failure to provide a religious accommodation, disparate treatment, hostile work environment, and harassment.5 To bring a claim against an employer under Title VII, an individual or his representative must first submit a claim with the EEOC within 180 calendar days of the discrimination.6 This deadline may be extended, however, if the appropriate state or local law also prohibits discrimination Act of 1991). 2. For instance, discrimination towards homosexuals and transgendered individuals has attracted media attention, and it is plausible that Title VII will eventually evolve to prohibit discrimination in that context. 3. See Steven Greenhouse, Muslims Report (...truncated)