Thinking Slow About Abercrombie & Fitch: Straightening out the Judicial Confusion in the Lower Courts

Abstract

In Abercrombie & Fitch, the U.S. Supreme Court fundamentally changed the way that Title VII religious accommodation cases are litigated and evaluated. This Article 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 Article 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 Article includes a chart organizing the diverse lower court opinions.

Keywords: Abercrombie & Fitch, Supreme Court, Religion, Title VII, Religious Accommodation, Accommodation, Prima Facie Case, Elements, Disparate Treatment, Sincerity, Privacy, Privacy of Religious Belief, McDonnell Douglas

JEL Classification: Z12,J70,J71, J83, J58, K31, K41, K42