Dallan F. Flake, Religious Discrimination Based on Employer Misperception, 2016 Wis. L. Rev. 87 (2016)
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.