Should a Muslim woman who wears a face covering for religious reasons, be entitled to give evidence in court with her face covered? This important issue, which has been discussed in other common law jurisdictions, has now been considered in the NSW Court of Appeal, in Elzahed v State of New South Wales  NSWCA 103 (18 May 2018). The Court concluded that no error had been shown in a ruling by a trial judge, that Ms Elzahad was not entitled to keep her face covered while testifying.
The United States Supreme Court has just handed down a very interesting religious freedom decision in Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, Inc (No 14-86, June 1 2015, 575 US ____ (2015)). The case involved a Muslim lady, Ms Samantha Elauf, who had applied for a job in a store run by high end fashion label Abercrombie & Fitch (A&F). In the interview she wore her head scarf, which she usually wore in line with her religious beliefs, but was not specifically asked about this. A&F maintained a “Look” policy applying to staff working in their stores which included a “no headgear” requirement. The person who conducted the interview told her supervisor that she thought Ms Elauf would be suitable, but noted that she seemed to wear a scarf for religious reasons. The supervisor directed that she not be hired. The Equal Employment Opportunity Commission (EEOC) sued A&F on behalf of Ms Elauf, alleging unlawful religious discrimination.
The case, then, was not one which directly involved the First Amendment to the US Constitution, or the Religious Freedom Restoration Acts which have recently generated such controversy. The legislation involved was Title VII of the Civil Rights Act of 1964, 78 Stat 253, which relevantly makes it unlawful for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race,color, religion, sex, or national origin. (42 U. S. C. §2000e–2(a).; emphasis added)
Another crucial part of the legislation for the Supreme Court’s decision is the definition of “religion”. The majority decision noted (at 3):
The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e(j).
It is somewhat unusual to incorporate a substantive provision about “reasonable accommodation” and “undue hardship” into the definition of “religion” (Justice Thomas in his dissent here, at 9, notes a previous case that said this inclusion was “somewhat awkward”, which I think is putting it mildly). This awkward structure led to some of the disagreements within the Supreme Court.
The Decision of the Court
The outcome of the decision is that Supreme Court, by an 8-1 majority, over-ruled the decision of the lower, Tenth Circuit, appeal court that A&F could not be held liable because Ms Elauf had not explicitly requested a religious accommodation. However, even within the 8 Justices who said that the Tenth Circuit had got it wrong, and needed to reconsider, there is an important difference of opinion. A sizeable majority of 7 Justices joined in an opinion written by Scalia J in which his Honour held that A&F’s knowledge that Ms Elauf wanted to wear the scarf for religious reasons was irrelevant- that for an action of an employer to be directly discriminatory on the ground of religion (under a “disparate treatment” or “intentional discrimination” ground, contained in Title VII, §2000(e)-2(a)(1)) all that has to be shown is that a “suspected” requirement for “accommodation” (that is, some adjustment of existing rules, such as the “no headgear” policy here) on religious grounds was a “motivating factor” in the decision to subject the employee to a disadvantage. See the following comments from pp 3 and 5 of the majority opinion:
[A]n applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision…
an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
On the other hand, Alito J, concurring in the result, disagreed with the majority on the question of “knowledge”. His Honour held that a requirement that the employer know that religious reasons required an “accommodation” should be implied in the terms of the legislation. However, since there was sufficient evidence in the agreed facts to lead to a finding of such knowledge, he thought that the appeal ought to succeed. Like the majority, though, he agreed that there was no need to prove that an actual request for such accommodation was made by the employee.
With respect, the concurring decision is fairly persuasive. As Alito J notes, it seems a very odd reading of the statute to say that an employer who had no idea at all that a religious reason was involved, could be held to have breached the statute, the aim of which seems to be to prohibit “intentional” discrimination (though that word is not used). The majority avoids this outcome by its comment suggesting that a “suspicion” of a religious reason would be enough; but to be frank this word really pops up from nowhere, it is not in the legislation, any more than a “knowledge” requirement is. But something of the sort seems needed. In a footnote, p 6 fn 3, the majority say they don’t need to choose between a “suspicion” and a “knowledge” criterion. But I think Alito J seems to be correct to say it needs spelling out to make the legislation operate sensibly- see p 4 of his decision. (As Thomas J says at 4-5 of his judgement, the majority decision “leaves the door open” to argue a “strict liability” which would not even depend on suspicion, by refusing to resolve the issue.)
In dissent, Thomas J holds that the majority are wrong to characterise this case as one of “direct” discrimination, “disparate treatment”. Instead, it should be regarded as a classic example of “indirect”, or “disparate impact”, discrimination, and resolved under the principles developed in those cases. However, his Honour does not then go on to apply the “indirect” provision to this case, being content to say that he would affirm the judgment of the Tenth Circuit decision.
I agree with the outcome of this case. I will demonstrate why shortly, by referring to Australian law. But it has to be said that it certainly leaves some uncertainty in the area of protection from religious discrimination. The majority judgment does seem to open up the possibility of some odd decisions, where an employer may refuse to accommodate a religious belief on the basis of a “suspicion” and be found guilty of direct discrimination under Title VII. This seems a very high bar. I think, while I am not an expert in US law, that the explanation can partly be found in the different approaches of Scalia J (author of the majority judgment) and Alito J to the question of statutory interpretation. Partly as a result of the many decisions that the US Supreme Court has to make on the meaning of that country’s Constitution, and also for other reasons, Scalia J is a fierce proponent of the view that a statute has to be interpreted by strict reference to the words chosen by the law-makers, with possible reference to dictionaries of the English language available at the time the legislation was enacted, but excluding any consideration of what was said in Congress or what a judge believes the “policy” of the statute is. Hence his Honour’s sharp comments on p 5 that the court should not “add words to the law to produce what is thought to be a desirable result”.
On the other hand, Alito J adopts the interpretation he does, requiring “knowledge” of a religious belief needing accommodation, because, as he says at p 4 of his judgment, “This interpretation makes sense of the statutory provisions”. With respect, I think his Honour is correct; and interestingly, despite Scalia J’s refusal at one point to “add words”, the word “suspicion” pops up in the majority judgment at various points with no direct statutory warrant. (Partly it is used because the legislation does refer to “motive”, see majority p 6 fn 3; but since this word needs explanation the court has to adopt some other criteria.)
In the end it has to be said that this case, which should be reasonably straightforward, is complex because of the “awkward” way that the definition of “religion”, noted above, is drafted. The question of whether a “reasonable accommodation” is possible is logically nothing at all to do with whether the employee has a religious belief or practice; that is an issue which needs to be dealt with, but not as part of the definition of “religion”. In addition, by incorporating “all aspects of religious observance and practice” into the definition of “religion”, the way is open for the confusion evident here. Scalia J seems correct if the statute is to be read literally: if “religion” includes any practice that might be connected with religion, then making an employment decision on the basis of, say, an employee’s desire not to work on the Sabbath is itself to discriminate directly on the basis of “religion”, even if the employer could not and does not know that the employee is Jewish. But as Alito J says, it makes no sense for the statute to operate that way.
Under Australian law?
How would this case have been decided under Australian law? Briefly, it would not have even arisen under the law of the Commonwealth or NSW, as those jurisdictions have no law prohibiting discrimination on the basis of religion. (Even the provisions of s 351 of the Fair Work Act 2009 (Cth) which forbid discrimination against a “prospective employee” on the basis of religion, would not seem to operate if the events occurred in NSW, as under s 351(2), the prohibition “does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken.”)
However, in a State that does contain such laws, then under the usual Australian approach this would be an example of “indirect”, not “direct”, discrimination (as Thomas J in dissent argued should have been the case under Title VII.) So in Victoria, for example, under the Equal Opportunity Act 2010, the “attribute” of “religious belief or activity” is one of the protected attributes- see s 6(n). Under s 9(1) it is “indirect discrimination” where:
(1) …a person imposes, or proposes to impose, a requirement, condition or practice—
(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.
Under s 16 an employer must not “discriminate” on the basis of protected attributes when determining to offer jobs. Under s 7 this word includes “indirect” discrimination. Here it seems clear that a requirement that a worker not have headgear would be a condition that will have the effect of disadvantaging those who have the attribute of a traditional Muslim belief that women ought to have their head covered. The court would then need to consider whether this requirement was “reasonable” or not taking into account a range of matters noted in s 9(3), including whether some “reasonable accommodation” is possible. It seems likely that a court would hold that a requirement merely based on a desire for a “Look” might not be sufficiently important to involve rejecting employment to a Muslim woman. That at least is where the discussion would take place, which seems the right approach.
Protection of the freedom of religion is an important issue. It is to be regretted, in my view, that there is no such general provision in Commonwealth and NSW law. This case illustrates that the law can act to protect the rights of religious minorities, and it would be good if the law of Australia did so more clearly.