HUMAN RIGHTS MAGAZINE |
Reconciling Faith and Livelihood
Religion in the Workplace and Title VII
By Richard T. Foltin and James D. Standish
Between 1992 and 2003, claims of employment discrimination based on religion jumped some 82 percent. To put this remarkable rise in perspective, during the same period, claims involving race dropped by 3.5 percent. This troubling trend in the treatment of faith in the American workplace deserves close examination.
Many employment discrimination claims based on religion involve instances in which employers refuse to provide an accommodation for an employee’s religious practices. The three primary problem areas tend to arise out of conflicts between work requirements and holy day observance (weekly Sabbaths and annual holy days like Christmas, Easter, and Passover), religious garb requirements (turbans, scarves, and yarmulkes), and religious grooming requirements (beards, dreadlocks, and so on). Some claims arise, but with less frequency, out of conflicts between religious faith and a specific assigned duty.
It is not only members of small or poorly understood faiths who experience difficulties in the American workplace. Cases coming before the courts have included, among others, Roman Catholics denied time off on Christmas Day and Evangelical Christians denied time off to attend church on Sundays. Other cases have involved employers who require Sikh employees to remove their turbans, fire Jews and Seventh-day Adventist Christians for refusing to work on Saturdays, reassign Muslim women wearing headscarves to keep them out of sight of customers, and attempt to force Rastafarian employees to cut their dreadlocks.
What is driving the upsurge of religious discrimination in the workplace? Those working extensively in the field point to four trends:
• The movement toward a twenty-four-hours-a-day/seven-days-a-week economy, with consequent conflict with religious demands for rest and worship on Saturdays, Sundays, or holidays;
• Our nation’s increasing diversity, marked by a broad spectrum of religious traditions, some of which may clash with workplace parameters that do not take into account the religious observances of immigrant communities;
• Latent animosity toward some religious traditions after the September 11 attacks, a phenomenon evidenced by significant recent upswings in cases involving Muslim Americans and Sikh Americans; and
• A growing emphasis on material values at the expense of spiritual ones, with employers indicating that workplace requirements take priority over religious practices.
U.S. civil rights laws protect people of faith in the workplace, but this protection—particularly when applied to guard against formal discrimination and to require a measure of accommodation of religious practice—has proven controversial from its inception, and inadequate in its application. This problem does not take place in a vacuum.
The Civil Rights Act of 1964
In a 1963 message to Congress, President John F. Kennedy vowed to protect Americans from workplace discrimination on the basis of “race, creed or ancestry.” A year later, President Lyndon Johnson signed the omnibus Civil Rights Act (Act), in part as a legacy to his assassinated predecessor. The milestone legislation included Title VII, which prohibited discrimination in the workplace on the basis of race, color, religion, sex, or national origin.
It was clear that the prohibition on religious discrimination and the application of nondiscrimination principles to religious entities presented special issues. As originally drafted, the Act afforded a sweeping exemption for religious entities. By the time Congress completed its work on Title VII, however, that exemption was significantly narrower. Pursuant to section 702, religious entities were exempted from the provisions prohibiting hiring based on religion. In addition, section 703(e)(2) provided an exemption that allowed religious educational institutions to hire and employ employees of a particular religion. Yet like all other employers, they were subject to Title VII’s prohibition on discrimination on the basis of race, color, sex, and national origin. The exemption was limited, moreover, to employee positions “connected with the carrying on . . . of [the entities’] religious activities.”
While dealing at least to some extent with the special concerns of religious organizations, the Civil Rights Act did not directly address the question of whether an employer has an obligation to accommodate employees’ religious practices or beliefs. The problems presented by this lacuna were evident almost from the start. An employer need not hang a sign in his window stating “no Jews need apply”; he merely needed to require work on Saturday to accomplish the same end.
The newly created Equal Employment Opportunity Commission (EEOC) was quick to issue regulations, in 1966, providing that employers must afford accommodation unless it would cause “a serious inconvenience to the conduct of business.” In 1967 the EEOC refined the regulations to require accommodation unless it would incur “undue hardship on the conduct of the employer’s business.” Lawsuits quickly challenged the EEOC’s authority to take this action. One such case—an appeal from a Sixth Circuit decision finding that the prohibition on religious discrimination should not be read to require accommodation—reached the U.S. Supreme Court, but it was split down the middle, resulting in an affirmance without national precedential authority. Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971), affirming by an equally divided Court 429 F.2d 324 (6th Cir. 1970).
In 1972, Congress reentered the fray, amending Title VII to add a new section 701(j), which required employers to “reasonably” accommodate the religious practices of their employees unless, by so doing, the employer would incur an “undue hardship on the conduct of the employer’s business.” The scant legislative history associated with this amendment gave little indication of precisely what Congress considered reasonable accommodation and what constituted undue hardship. This was left up to the courts. But, as Justice Thurgood Marshall would later observe in his dissent in Trans World Airlines v. Hardison, 432 U.S. 63, 89 (1977), the record demonstrated, at least, that section 701(j) was introduced by Senator Jennings Randolph (D-WV) explicitly “to protect Saturday Sabbatarians like himself from employers who refuse ‘to hire or continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days.’” Citing 118 CONG. REC. 705 (1972).
At the same time, Congress amended section 702 to conform with section 703(e)(2) to broaden the religious discrimination exemption, allowing religious organizations to make hiring decisions on the basis of religion with respect to all employee positions, not just with respect to work connected with “religious activities.” As Professor Melissa Rogers has shown in her recent examination of the legislative history leading up to enactment of this latter amendment, the sponsoring senators—Sam Ervin (D-NC) and James Allen (D-AL)—“considered an institution-wide exemption for religious organizations from Title VII to be crucial to religious autonomy and freedom.”
The premise on which sections 702 and 703 (e)(2) were based—that protecting the autonomy of religious institutions is a necessary corollary of the Constitution’s protection of the free exercise of religion—has not been subject to serious debate. Indeed, the courts have read a constitutionally mandated “ministerial exception” into Title VII pursuant to which religious institutions may discriminate on any basis, not just with respect to religion, when it comes to employment decisions involving clergy. Rather, debate has focused on the extent to which exemptions for religious organizations should be carved out so as to protect the groups’ autonomy. Thus cases questioned the constitutionality of the 1972 expansion of the section 702 exemption. The Supreme Court upheld the exemption in 1987. Other cases, with varying results but generally protective of religious institutions, have examined the question of just how “religious” a religious institution has to be to qualify for a section 702 or section 703(e)(2) exemption, as well as whether given employment decisions were made on the basis of sex or pregnancy, as opposed to religion—and would therefore, at least with respect to nonministerial employees, not fall under the exemption.
Most recently, as a result of the push for “charitable choice” and faith-based initiatives, there has been extensive debate as to whether the exemptions afforded under sections 702 and 703(e)(2) apply to social services programs provided by religious institutions when federal funds are involved. Some have argued that the exemption applies nevertheless; others have argued that Congress never intended the exemption to cover other than privately funded positions or projects—and that, in any event, to practice such discrimination with public funds is constitutionally problematic.
Others have noted that there is nothing in the text of the statute to suggest that it was Congress’s intent to limit the exemption to entities that do not receive federal funding.
Hardison and Its Aftermath
If the meaning of sections 702 and 703(e)(2) remains unsettled, the courts have been more clear in their reading of section 701(j). Unfortunately, the decisions have not always viewed religious accommodation in the workplace as a serious civil rights issue.
The seminal Supreme Court case in this area is Trans World Airlines v. Hardison, 432 U.S. 63 (1977). Larry Hardison was a member of the Worldwide Church of God and believed it was his religious duty to rest from secular work on Saturdays (his Sabbath). Trans World Airlines discharged Hardison because he refused to work on Saturdays in a position as a clerk that required staffing twenty-four hours per day, 365 days per year. In ruling for TWA, the Court determined—in a 7-2 decision—that anything more than a de minimis cost to an employer constituted an “undue hardship” for purposes of section 701(j), and found that accommodations proposed by Hardison would have imposed such a cost because they “involved costs to TWA, either in the form of lost efficiency in other jobs or higher wages.” The Court also found that TWA had made reasonable efforts at accommodation.
In a dissent joined by Justice William Brennan, Justice Thurgood Marshall argued that the Court’s reading of section 701(j) reflected the belief that Congress, in drafting the 1964 Civil Rights Act to require employers to make reasonable accommodations for religious practice, did “not really mean what it [said].” Marshall and Brennan also argued that the Court’s reading of section 701(j), in particular the de minimis interpretation of “undue burden,” so vitiated the obligation to reasonably accommodate as to result in “effectively nullifying it.”
The history of religious accommodation litigation since 1977 bears out Justice Marshall’s concerns. It would be an overstatement to say that employees seeking a reasonable accommodation of their religious practices never prevail in court. Many cases never reach litigation because employees and employers work out an accommodation amicably. But for the most part, to borrow the title of one law review article on the subject, the courts have concluded that “heaven can wait.”
Turning to the specifics of section 701(j), one might expect a “reasonable accommodation” to remove the conflict with religious practice, with employers then required to show an “undue hardship” before being relieved of the obligation to provide such an accommodation. But this is often not the case. Perhaps most remarkably, some courts have suggested—beginning with Hardison—that employees’ rights under collective bargaining agreements are, in of themselves, reasonable accommodations even when those agreements make absolutely no provision for employee religious practices that may come into conflict with the requirements of the workplace.
It is the Hardison Court’s interpretation and application of “undue hardship” that has most often affected religiously observant employees. Frequently, even in the absence of substantial economic cost, the courts have found that the provision of a reasonable accommodation amounts to an undue hardship. Sometimes the “hardship” is no more than the administrative task of adjusting schedules.
Beginning with Hardison itself, the existence of a seniority provision in a collective bargaining agreement has been invoked as a basis for undue hardship because, for instance, to allow an employee his Sabbath off would violate the seniority rights of another employee. To be sure, section 703(h) of Title VII expressly provides that “the routine application of a bona fide seniority system [i.e., without intention to discriminate because of race, color, religion, sex, or national origin]” is not unlawful. But all too often, this conclusion is reached without further inquiry as to whether the bargaining representative might have been enlisted in a search for voluntary swaps or whether an exemption might be sought to technical violations of the collective bargaining agreement that stand in the way of an amicable arrangement.
These constrictive readings of section 701(j) are inconsistent with the principle that religious discrimination should be treated as seriously as any other form of discrimination. The civil rights of religious minorities should be protected by interpreting the religious accommodation provision of Title VII in a fashion consistent with other protections against discrimination. Since these constrictive readings turn on judicial interpretation of legislation, rather than constitutional doctrine, they are susceptible to correction by the U.S. Congress. Legislation now pending in Congress would do exactly that.
The Workplace Religious Freedom Act
The Workplace Religious Freedom Act (WRFA) redefines what constitutes an “undue hardship” on an employer for purposes of the Title VII accommodation provision. It replaces the current standard that holds that anything above a de minimis cost or inconvenience is an undue hardship, with the definition that an undue hardship is an action requiring significant difficulty or expense. When making the determination of whether an employer has incurred a significant difficulty or expense, the WRFA requires that the cost of accommodation be quantified and considered in relation to the size of the employer. In this respect, it resembles the definition of undue hardship set forth in the Americans with Disabilities Act.
Crucially, the WRFA requires that to qualify as a reasonable accommodation an arrangement must actually remove the conflict. This ends the notion that a collective bargaining agreement, any other neutral arrangement, or an “attempt to accommodate” that fails to accommodate a religious practice could itself be viewed as a “reasonable accommodation.” The accommodation might, of course, still constitute an undue hardship.
The WRFA also makes it clear that an employer has an affirmative and ongoing obligation to reasonably accommodate an employee’s religious practice and observance. This provision does not in and of itself alter the standard for what is a reasonable accommodation or an undue hardship. It does, however, require that all to whom section 701(j) applies bear the responsibility of making actual, palpable efforts to arrive at an accommodation.
Some observers have claimed that the WRFA will somehow empower employees to act in ways that hurt others in the workplace or cause third parties to be denied needed services. These claims are not based on a fair reading of the bill. First, the WRFA will not empower people to come to work each day and berate their coworkers for being gay or Mormon or agnostic. Actions that create a hostile work environment for others, in most cases in violation of long-standing prohibitions on harassment, would clearly impose a significant burden on the employer. Changing the definition of undue hardship will not unleash a wave of harassment.
Second, the courts may well find (as one federal appellate court has already held under current law) that the WRFA does not justify the refusal of essential personnel, like police officers or fire fighters, to protect individuals or entities with whom they have moral differences. But, even to the extent that a court may find that a task-based accommodation is in order in a particular case, such accommodation could not, by any stretch, be required if it meant that the services in question were no longer available to the public. Otherwise, the employer would patently be faced with an undue hardship.
The WRFA is supported by a broad range of groups across the religious and political spectrum, many of which are fully as committed to fighting discrimination on the basis of sexual orientation and to protecting reproductive rights as are those who have raised the foregoing concerns. But WRFA supporters are also committed, left and right alike, to a fundamental premise of our Constitution and our society: that it is not up to the government to prescribe orthodoxies of belief or practice, and that the religious beliefs and practices of those with whom they disagree on these (and other) fundamental matters should be accommodated if this can be done without harm to others.
Focus on an improbable parade of harmful outcomes gives far too short shrift to the problem that the WRFA aims to address—the discriminatory treatment of employees—which goes to the very heart of employee rights.
Conclusion
The steady rise in religious discrimination claims registered with the EEOC is alarming. In six of the eleven years following 1992, the increase in claims was over 5 percent per annum. The largest jump in claims came in 2002, the year following the September 11 attacks, when claims rose by 21 percent over the previous year. The number of claims in 2003 only dropped by 1.5 percent over 2002, leaving claims up 82 percent as compared to 1992.
Efforts to ensure that people of faith are treated fairly in the American workplace have met with mixed success over the last four decades. While the passage of Title VII of the Civil Rights Act represented a major milestone, its full promise has yet to be realized. Even after the amendments to Title VII in 1972 and the litigation of numerous cases, people of faith remain dangerously vulnerable to the arbitrary refusal of employers to accommodate their religious practices. In a country founded by those fleeing religious intolerance, and in which religious freedom is enshrined in our most basic law, it is not too much to hope that we will soon achieve another milestone in civil rights, this time by assuring that Americans of all creeds are accorded respect by employers, able to remain true to their faith and participate as full partners in the workplace.
Richard T. Foltin is legislative director and counsel in the American Jewish Committee’s Office of Government and International Affairs in Washington, D.C. He serves as co-chair of the Committee on First Amendment Rights for the ABA’s Section on Individual Rights and Responsibilities. James D. Standish is director of legislative affairs for the world headquarters of the Seventh-day Adventist Church. Mr. Foltin and Mr. Standish co-chair a broad coalition that has been formed to promote passage of the Workplace Religious Freedom Act.