Document Type

Working Paper

Publication Date

7-25-2017

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Humanities Network; Political Science Network; Anthropology & Archaeology Research Network; Employment, Labor, Compensation & Pension Law eJournals

Abstract

The Supreme Court decided two cases in Spring 2015 "“ Young v United Parcel Service Inc and EEOC v Abercrombie Fitch Stores Inc "“ under Title VII The plaintiffs in both cases believed that they had been discriminated against by their employers because they were members of a protected class "“ pregnant women in the former and religious believers in the latter Both plaintiffs were seeking minor modifications to workplace policies as an accommodation And in both opinions handed down within a few months of each other the Court used the language of favoritism to discuss whether the plaintiffs should prevail and what analysis should be employed The manner in which the Court used the language of favoritism however could not have been more different In the case of pregnancy the Court soundly rejected that pregnant employees were entitled to any favored treatment bending over backwards to avoid a ruling that pregnant employees were part of a "most favored" class In the case of religion the Court took the exact opposite approach declaring that religious plaintiffs enjoyed "favored treatment" This is despite the fact that Title VII provides no explicit textual support for such a distinction In the absence of such a statutory explanation what is really behind this difference in approach This paper explores one potential answer to this question "“ that these decisions reflect the Court's underlying belief in the paramount importance of the right to spiritual autonomy over and above the importance of a right to physical autonomy Further it explores how allowing such a hierarchy between a right to spiritual autonomy on the one hand and a right to physical autonomy on the other to animate judicial decisions is both inherently gendered and has the effect of disproportionately harming women It concludes by analyzing whether such a hierarchy of rights is reflective of lived experience and discussing possible alternative frameworks for analyzing such claims

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