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

Abstract

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

Cameron, Bruce N. and Hutchison, Blaine, Thinking Slow About Abercrombie & Fitch: Straightening out the Judicial Confusion in the Lower Courts (July 19, 2018). Pepperdine Law Review, Vol. 46, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3216741 or http://dx.doi.org/10.2139/ssrn.3216741

Bruce N. Cameron (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

Blaine Hutchison

Independent ( email )

No Address Available

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