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2016 Wis. L. Rev. 87 (2016)
Religious Discrimination Based on Employer Misperception

handle is hein.journals/wlr2016 and id is 91 raw text is: RELIGIOUS DISCRIMINATION BASED ON EMPLOYER MISPERCEPTION DALLAN F. FLAKE* This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer's misperception of an employee's religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States continues to experience unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual's actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer's intent is equally malicious in misperception and conventional discrimination cases. I argue that the statutory text is ambiguous, but the legislative history, EEOC guidance, and the broader federal antidiscrimination regime all support recognition of misperception-based religious discrimination claims under Title VII. The Supreme Court's recent decision in EEOC v. Abercrombie & Fitch Stores, Inc. further confirms the validity of such claims, as the Court held that Title VII liability is premised on an employer's discriminatory motive, not its actual knowledge of an individual's religious practices. Thus, if an employer's motive is the touchstone for liability, it matters not whether an employer accurately perceives an employee's religion, so long as religion motivates the adverse employment decision. Introduction ...................................... 88 I. Religious Misperception in a Changing America ............ 91 A. America's Changing Religious Landscape.... ........ 91 B. Religious Misperception in the Workplace . .......... 95 II. Title VII and Misperception Discrimination......... ...... 98 A. The Statutory Text ........................ 98 B. Legislative History ..........................100 C. EEOC Guidance ............................103 D. Other Federal Antidiscrimination Laws....... ......106 III. Judicial Analysis of Misperception Discrimination.... .....109 A. Key Cases Rejecting Misperception Discrimination ........111 B. Key Cases Recognizing Misperception Discrimination.....116 IV. Misperception Discrimination After Abercrombie..... .....123 A. The Abercrombie Decision............ .........123 B. Abercrombie's Application to Misperception * Assistant Professor of Law, Claude W. Pettit College of Law, Ohio Northern University. I extend a special thanks to participants at the Indiana University Maurer School of Law Colloquium on Scholarship in Employment and Labor Law for their insightful comments on this project.

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