September 12, 2013
Protecting Religious Diversity, Even at the Mall
By Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty It is hard to name a more commercial environment than a shopping mall. Hundreds of stores deliberately grouped together to offer their goods and services. Hundreds of employees getting paid money to sell them. Thousands of customers paying money to buy them. The federal government has lately been arguing that religious freedom is incompatible with making money, at least in the HHS Mandate context. On that view, one would expect a shopping mall to be a black hole for religious liberty. That is why it is such a pleasant surprise to see the Obama Administration’s EEOC fighting for the right to religious accommodations—even in a shopping mall, and even in a job that is all about getting paid to buy and sell products that have nothing to do with religion. Umme-Hani Khan is a Muslim teenager who applied for a job at an Abercrombie & Fitch store in her local mall. Khan’s religious beliefs require her to wear a headscarf while in public. Khan wore her headscarf during her interview and during her first six months working at the store, without issue. Eventually, though, the store decided that her headscarf violated the company’s dress policy. When she would not remove it, Khan was fired. In an opinion issued Monday, a federal judge agreed with the Obama Administration that Abercrombie & Fitch had failed to accommodate Khan’s religion by letting her wear her headscarf while at work. Especially in light of Khan’s responsibilities—she worked mostly in the stock room, checking shipments and folding clothes, occasionally entering the store only to place items on the shelves—the court agreed with the EEOC that federal law required the store to accommodate Kahn’s religious practice, rather than firing her for it. The decision is important for two reasons. First, it is a reminder that, in a religiously diverse country, people of different faiths will have different needs. Some workers need to wear headscarves, some need Saturdays off, some cannot assist with abortions or capital punishment. The sensible response to most of these differences is to accommodate them—to recognize that our society is filled with wonderful differences, and to find ways to work around those differences without kicking people out of their jobs. The case is also important for arguments the Administration chose not to make. It did not argue that Ms. Khan had forfeited her religious freedom rights when she voluntarily went to work for a profit-making company. It did not say that she would only have religious liberty if she cabined her job search to Muslim religious organizations. It did not say that because she was earning money in the commercial marketplace she had somehow forfeited her right to conduct herself in accordance with her religion. Taking such positions would have been a crabbed and stingy approach to religious liberty, incompatible with our laws and unworthy of our long tradition of embracing religious diversity. The Administration should be applauded for not taking that approach in this case. Hopefully, it can adopt a similarly broad-minded and tolerant approach to other religious liberty issues, including the HHS Mandate. Update: Mark Movsesian also wrote about this case on CLR Forum’s blog. Read his post here.