Journal of Law, Religion and State - Volume 5, Issue 1, 2017

In recent years, the United States has seen a resurgence of debates over the propriety of various religious accommodations afforded religious individuals and institutions from otherwise valid laws. The crumbling consensus over religious accommodations appears largely due to growing skepticism over whether religious accommodations, once granted, can be limited to the “right” kind of cases without bleeding into the “wrong” kind of cases. Some courts and scholars have responded to these growing worries by proposing limits on the scope of legally recognized accommodationist claims; for example, some have argued that commercial entities should, per se, be denied claims for religious accommodation and others have argued that claims for accommodation should not be granted where the theological burden is deemed by a court to be de minimis or non-existent. By limiting the types of recognized accommodationist claims, such arguments hope to prevent religious objections from trumping other important rights and values; if the claims never get off the ground, so the logic goes, there is no need to worry about their potential consequences.

This tactic, however, stands on dangerous footing. At bottom, such arguments put government in the position of giving unequal weight and credence to claims for accommodation based upon religious and theological criteria, thereby creating inequalities among religious claims. As an alternative strategy, courts should avoid threshold doctrinal tests for accommodation claims; instead courts should explicitly balance religious claims against important government interests in order to determine whether or not to grant an accommodation. Such an alternative approach pulls courts out of the business of distinguishing between different types of religious claims, encouraging them instead to impose limits on religious accommodation by directly considering governmental interests, precisely the type of inquiry courts are well-equipped to address.

This article examines how the us Supreme Court’s decision in eeoc v. Abercrombie & Fitch Stores, Inc. represents a shift in the Court’s analysis in religious accommodation cases under §701(j) of the Civil Rights Act of 1964. As a result of this decision lower courts are now likely to provide greater protection to employees requesting accommodation under §701(j) for two reasons. First, Abercrombie held that an employer can be liable for religious discrimination even if it does not have “actual knowledge” of an applicant’s or employee’s need for religious accommodation. Additionally, the Court also determined that religious accommodation claims can be raised as disparate treatment claims, and in doing so emphasized for the first time that §701(j) mandates more than formal equality. This is an important shift since previous federal decisions often relied on formal equality in limiting an employer’s accommodation obligation.

This article investigates the link between the Roman notion of fides and the contemporary notion of fiduciary duties. Etymologically, the word “fiduciary” derives from fides. The Roman fides was a very complex concept, blending religious, social, and legal valences. The religious and social fides entered Roman law in a substantive form, as bona fides, and as a standard of judgment, in the form of bonus vir. It is submitted that a close analogy can be drawn between bonus vir and the contemporary fiduciary standards.