Out of Sight, Out of Legal Recourse: Interpreting and Revising Title VII to Prohibit Workplace Segregation Premised on Religion

Abstract

A business’s success is generally tied to its ability to appeal to customers and establish a compelling brand. In response to actual or perceived customer preferences or in efforts to preserve its corporate image, some employers have denied employment to individuals with conspicuous religious appearances (e.g., Muslims with headscarves, Rastafarians with dreadlocks, or turbaned Sikhs) or have placed these individuals out of public view, in back areas, once hired. This Article explores whether, for these customer- or brand-based reasons, employers may either refuse to hire or place out of public view individuals with visible religious identities under Title VII of the Civil Rights Act of 1964, the statute governing employment discrimination.

Federal court rulings suggest that Title VII does not forbid this employer conduct. In this Article, I argue that these courts have it wrong – specifically, I contend that these courts’ interpretation of Title VII enables employers to reinforce majoritarian norms and perpetuate stereotypes regarding the proper place in American society of individuals who look “different” on account of their religion, particularly those belonging to minority faiths. In effect, these courts have brought within the law the functional segregation of overtly religious individuals both in the workplace (i.e., those who are situated away from the public’s gaze) and from the workforce (i.e., those who are not hired altogether).

I make my case in the following manner: in Part I, I present an overview of Title VII as it relates to individuals with conspicuous religious appearances and discuss two federal cases that demonstrate the courts’ willingness to side with employers who attempt to deny employment to or put in the back individuals with religiously-mandated appearances. In Part II, I argue that the text and purpose of Title VII, the legally significant social harms stemming from the validation of discriminatory customer preferences, and caselaw from historical and other civil rights contexts, support an opposite reading of Title VII that prohibits workplace segregation, and posit that more robust measures are required to give this fuller meaning to Title VII. In Part III, I respond to the potential constitutional and judicial implications of this alternative interpretive construction or statutory modification of Title VII.

This Article aims to not only correct a flaw in legal reasoning that has adverse practical and social consequences, but to restore the rights of individuals who happen to subscribe to faiths that require a distinct, visible identity.

Keywords: Title VII, religious accommodation, reasonable accommodation, undue burden, segregation, customer preference, corporate image