A Civil Right Tested - Part 2: Title Vll and Beyond

Keith Blair July/August 2014

Article Series

The Supreme Court had an opportunity to revisit religious discrimination in Ansonia Board of Education v. Philbrook.1 Ronald Philbrook taught classes in a public high school in Ansonia, Connecticut.2 Subsequent to his hiring, he became a member of the Worldwide Church of God.3 The Worldwide Church of God required that its members not work on designated holy days, which caused Philbrook to miss about six workdays a year.4 The school board and teachers union negotiated a collective-bargaining agreement that provided for 18 days of sick leave per year.5 Three sick days could be used for the observance of religious holidays.6 Philbrook requested that the school board allow him either to use three days of personal business leave to observe the holy days or to pay the cost of a substitute teacher for days that were not covered by the collective bargaining agreement.7 The school board rejected both alternatives but allowed Philbrook to take unpaid leave on those days.8 The Supreme Court held that while permitting unpaid leave would generally be a reasonable accommodation, such a policy would be discriminatory if an employer permitted paid leave to be used flexibly for all purposes except religious ones.9 It further held that there was no need for an employer to choose the accommodation that the employee prefers.10 Rather, once an employer has offered any reasonable accommodation, the employer has met its burden.11

After Philbrook, employers need only show that they have offered a reasonable accommodation to an employee. It need not be the accommodation preferred by the employee or the most advantageous to the employee.12 Philbrook seemed to look at reasonableness through the eyes of the employer rather than the employee.13 This interpretation of Title VII relieves employers of any obligation to work with an employee to come up with an accommodation that solves the employee’s problems.14

This reading of Title VII seems to contravene the congressional intent with respect to protecting religious employees’ rights.15 Senator Jennings Randolph introduced the amendment to section 701(j) of Title VII specifically to deal with situations like those later addressed in Trans World Airlines, Inc., v. Hardison.16 Additionally, the legislative history, while admittedly slim, does provide guidance as to what might or might not constitute an “undue hardship.”17

Indeed, the legislative history seems clear that the intent of the amendments was to negate the need of employees to choose between their jobs and the exercise of their faith.18 According to the legislative history, an accommodation would not be reasonable if an employee had to make this choice.19 Departing from the legislative history, Hardison and Philbrook turned the tables on the amendment and made the employer rather than the employee the focus of the inquiry.20

Given that the Supreme Court has not addressed the issue of religious employment discrimination since Philbrook, it is not surprising that the lower courts have followed the standards set forth in Hardison and Philbrook. This has resulted in lower courts’ finding an undue hardship if an accommodation would result in any cost to the employer.21

Reasonable Accommodations Under the Americans With Disabilities Act

The key to protecting the ability of religious employees to resolve conflicts between their religious obligations and workplace obligations lies in a revisiting of the reasonable accommodation regime that evolved after Hardison and Philbrook. Although Title VII, its legislative history, and Equal Employment Opportunity Commission (EEOC) guidelines all contemplate an expansive reading of what constitutes a reasonable accommodation, there has been anything but an expansive reading.22 The level of effort that is required of employers when providing a reasonable accommodation is so slight as to be nonexistent. Employees, meanwhile, face numerous challenges as they try to acquire accommodations.

Numerous commentators have embraced the approach toward reasonable accommodations in Title II of the Americans With Disabilities Act (ADA), which is codified at sections 12131 to 12165 of title 42 of the United States Code.23 The ADA is instructive in how it deals with accommodations to persons with disabilities. The similarities in religious discrimination and discrimination against people with disabilities also make the approach taken in the ADA a good model for Title VII accommodations.24

Similarities Between Religious Discrimination and Discrimination Based on Disability

Although people of faith have faced challenges in the workplace, those challenges are usually not a result of irrational discrimination on the basis of their religion. The discrimination is generally a result of economics and workplace harmony. For example, if a Sabbatarian wishes not to work on their day of worship, their employer may deny the request because someone cannot be found to work as a replacement without having to pay overtime.25 The denial, therefore, is not based on the religion of the employee but on the economics of the situation.

Similarly, if an employee wishes to groom in a particular manner despite workplace rules against the grooming, the employer risks the other employees’ feeling as if the religious employee were given favored treatment because of their religion. While the views of the employees who were not given the accommodation probably would not alone be enough to be a de minimis cost, they will in all likelihood be factored into the calculation that the employer makes when assessing the cost of the accommodation.

Discrimination based on disability and the goals of the ADA are similar to employment discrimination based on religion and the goals of Title VII. Employers generally discriminate against disabled persons not because they are disabled but for economic reasons.26 Employers refuse to accommodate disabled persons because the employers do not wish to spend the money to make their workplaces accessible to disabled employees.

Religious discrimination and discrimination based on disability also are similar in that they are treated differently than the other Title VII categories. Title VII does not require an accommodation for race, gender, or national origin. More important, Title VII attempts to eradicate the irrational, invidious discrimination based on race, gender, and national origin.27

Title VII, as it deals with religious discrimination, shares with the ADA the same goal of protecting certain individuals even if it means that an employer will bear an additional cost. In adopting Title VII and the ADA, Congress said that society and the workplace would be better if these employees were fully able to participate in the workplace despite having a need for an accommodation based on either a religious belief or disability.

Despite these similarities, the accommodations provisions of Title VII and the ADA have differed in their application. The Title VII provisions have been construed very narrowly,28 while the ADA provisions have been construed more broadly.29

The ADA and Reasonable Accommodation

The ADA prohibits discrimination against qualified individuals who are able to perform essential job functions “with or without reasonable accommodation.”30 A person is considered disabled if she is “substantially [limited]” in at least one “major life [activity]” by “a physical or mental impairment,” has “a record of . . . impairment,” or is perceived as impaired.31

The ADA provides that an employer may not discriminate against “a qualified individual [with a] disability.”32 A qualified individual is one with a disability “who, with or without reasonable accommodation, can perform the essential functions” of the relevant “employment position.”33 An employer discriminates under the ADA when it does not make a reasonable accommodation for a qualified employee’s known physical or mental limitations unless the employer can show that the accommodation would impose an undue hardship on the employer’s business.34

An undue hardship is defined in the ADA as an action requiring “significant difficulty or expense.”35 Factors that may be considered in determining if an undue hardship exists include: (1) the nature and cost of the accommodation; (2) the financial resources of the business; (3) the overall size of the business, including the number and location of the facilities; and (4) the operation of the business, including the composition of its workforce.36 In addition to the statute, the EEOC has provided guidance as to how “reasonable accommodations” and “undue hardship” should work in practice.37

The seminal Supreme Court case dealing with reasonable accommodation in the ADA context is U.S. Airways, Inc., v. Barnett.38 In Barnett, an employee, Barnett, transferred to a less physically demanding position in the mailroom because of a disability.39 Subsequently, Barnett learned that he would not be able to keep the position because of a union seniority system.40 Barnett ultimately lost his job when U.S. Airways would not make an exception to the seniority rules.41 Barnett sued under the ADA asserting, inter alia, that the mailroom position was a reasonable accommodation for his disability and that U.S. Airways discriminated against him when it did not allow him to keep the position.42

The district court found for U.S. Airways on summary judgment, holding that breaking the seniority system would be an undue hardship for U.S. Airways.43 The Court of Appeals for the Ninth Circuit reversed and held for Barnett, finding that the seniority system was only a factor to be considered in the analysis of undue hardship.44

During the analysis of the parties’ arguments with respect to what would constitute a reasonable accommodation in this case, the Supreme Court, in response to U.S. Airways’ arguments, stated that “by definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially.”45 In other words, a reasonable accommodation is not one that treats the employee neutrally. Rather, it gives employees opportunities to function in the workplace, which they would not have had without the accommodation. The accommodation is not neutral because employees who are not disabled are not given the same preferences.

As the Court further reasoned, “neutral” rules would be of little help to employees who need accommodation. The employee who cannot travel higher than the ground floor is not helped by a neutral office-assignment policy.46 A neutral rule regarding spending on office furniture does not help the employee who needs an ergonomic desk or chair because of a disability.47 Thus, while neutral workplace rules that are generally applicable are to be considered when formulating a reasonable accommodation, they are not the end of the analysis.48

The Supreme Court also rejected Barnett’s interpretation of reasonable accommodation. Barnett urged the Court to interpret the reasonable accommodation provisions so that the word “reasonable” is synonymous with the word “effective.”49 The Court rejected this interpretation.50 While an accommodation must be effective if it is to eliminate the impediment that the employee is facing, that has no bearing on the accommodation’s reasonableness.51 The Court ultimately reversed and remanded the case back to the court of appeals for further proceedings in light of the reasoning of the Court.52

An example of the ADA reasonable accommodation regime after Barnett comes from a recent case in the First Circuit, Tobin v. Liberty Mutual Insurance Co.53 In Tobin the plaintiff was a salesman suffering from bipolar disorder.54 Tobin had many deficiencies as a salesman because of his disorder.55 He asked his employer to transfer him to a certain type of account that he felt would accommodate his disability.56 Liberty Mutual refused the transfer in part because of Tobin’s past performance as a salesman.57 The court of appeals dealt with the plaintiff’s performance and how it affected a reasonable accommodation by relying on Barnett, stating that an accommodation cannot be deemed unreasonable solely because the employee has failed to meet standard eligibility requirements.58 While the court noted that the existence of an impersonal seniority system might mean that a transfer could upset another employee’s expectation of fair and uniform treatment, it also found that no such system was in place at Liberty Mutual.59

The court next dealt with whether the accommodation of moving Tobin to a different position with more responsibility would be an undue hardship to Liberty Mutual.60 The court recognized that moving the employee to the new position might have been a risk for the company but that Liberty Mutual would have been able to mitigate those risks.61

This approach to reasonable accommodation and undue hardship is vastly different than the approach taken in Title VII religious discrimination cases. Under the ADA regime, although an employer may present credible evidence that moving the employee to a new position would have been a hardship, that is not the end of the analysis.62 Under Title VII the analysis stops when the employer is able to prove that the accommodation would have presented more than a de minimis burden.63 Under the ADA, however, more is required of the employer than just presenting evidence that there would be a cost to accommodate the employee.

The First Circuit in Tobin treated the ADA as a normative statute whose purpose is to provide an opportunity for disabled workers to function in the workplace. While the needs of employers are taken into account, those needs do not rise above the goals of the ADA.

Modeling the Title VII employment discrimination reasonable accommodation regime after the ADA has been criticized. The main criticisms against such a change are that: (1) Title VII has little legislative history when compared to the ADA; and (2) the ADA has a definitional limitation on the number of persons covered, numbering 43 million in 1990, while Title VII has no such limitation and could reach the entire American workforce.64 This paper addresses each argument in turn.

First, it is true that the ADA’s legislative history is more extensive than the legislative history of Title VII religious discrimination. That does not mean, however, that the intent behind adding religion to Title VII is less clear than the ADA or is ambiguous. The statements of Senator Randolph make quite clear why he offered the amendments to Title VII.65 Given those statements and the Dewey v. Reynolds Metals decision which were the impetus behind the amendments, the reasoning and intent of the amendments are clear if not extensive.66 Senator Randolph wished to enable people of faith to practice their faith and meet workplace obligations without fear of losing their jobs. While what constituted a reasonable accommodation was not defined in the statute, the EEOC did attempt to define “reasonable accommodation” based on its understanding of what Congress was trying to accomplish.67

The second argument against treating religious discrimination claims like ADA claims deals with the scope of the ADA versus the scope of Title VII. The argument appears to be that the number of employees who can claim religious discrimination is not limited by definition as it is in the ADA, and that, accordingly, the reasonable accommodations scheme should not be expanded.68 The argument fails to acknowledge, however, that changing the Title VII reasonable accommodation regime does not change the number of persons who are covered. That is, it presumes that workers will for some reason wish to bring religious discrimination claims when they have no reason to do so.

Professor James Sonne also criticizes applying the ADA approach to religious accommodations because doing so would raise the burden on employers 69 because the ADA uses “significant difficulty or expense” where Title VII uses “undue hardship.”70 In other words, an employer must offer an accommodation under the ADA more frequently than under Title VII. Under the ADA an accommodation must be offered unless that accommodation poses significant difficulty or expense.71 The ADA formulation is an attempt to balance the accommodation of the employee with the needs of the employer. This balance, however, has been criticized.72

Sonne discusses accommodations that have been deemed reasonable under the ADA and concludes that the extra cost and expense of adopting the ADA standard in Title VII cases would not be in the best interest of employers.73 For example, hiring a reader for an employee with a vision disability, providing private parking for an employee with a walking disability, and supplying a text telephone for a hearing-impaired employee have been considered reasonable accommodations under the ADA, even though the employers had to bear the cost of the accommodation.74 Because these accommodations are more than the de minimis standard of Hardison, Professor Sonne looks disfavorably on them.75

However, the de minimis standard of Hardison has proved to be a way for employers to avoid making more than token accommodations for employees who have conflicts between their faith and their work obligations.76 It is true that employers would bear an extra cost in accommodating these employees,77 but that cost would be balanced by the benefit of having a workplace that respects religious pluralism.

Had the ADA standard been applied in Hardison, the result would almost certainly have been different. Had Trans World Airlines accommodated Hardison in his preferred way, it would have incurred a cost of $150 per month for three months.78 It is unlikely that $150 would have been considered a “significant difficulty or expense,”79 and Hardison would have been accommodated. The extra cost to the company should not have been enough to deny Hardison an accommodation so that he could have kept both his religious and work commitments.

Even accommodations that do not have direct financial costs are not looked on kindly under Title VII.80 Analysis of those accommodations under the ADA standards would mean that employers’ burdens would increase from the current Title VII standard.81 Under the ADA, accommodations such as involuntary shift swaps, mandated breaks, or transfer of duties might well be required in order to meet the “significant difficulty or expense” standard for accommodations.82 Again, this increased “burden” on employers just brings balance to the accommodation regime.

  1. Ansonia Board of Educ. v. Philbrook, 479 U.S. 60 (1986).
  2. Id. at 62.
  3. Id.
  4. Id. at 62, 63.
  5. Id. at 63.
  6. Id. 63, 64.
  7. Id. at 64, 65.
  8. Id.
  9. Id. at 71. The Second Circuit Court of Appeals had previously held that the school board had offered Philbrook a reasonable accommodation but held that Title VII did not permit the board to reject Philbrook’s proposal—which was also reasonable—without demonstrating that the accommodation would pose an undue hardship. See Philbrook v. Bd. of Educ., 757 F.2d 476, 484 (2d Cir. 1985). The court remanded the case, ordering the district court to determine whether accepting “either of [Philbrook’s] proposed accommodations would cause undue hardship.” Id. at 485.
  10. Philbrook, 479 U.S. 60, 68, 69 n.6 (1986).
  11. Id. at 68.
  12. Id. at 69 n.6, 70.
  13. Bilal Zaheer, “Accommodating Minority Religions Under Title VII: How Muslims Make the Case for a New Interpretation of Section 701(J),” U. Ill. L. Rev. 2007 (2007): 497, 513.
  14. Id.
  15. Id. at 517-519.
  16. Cong. Rec. 118 (1972): 705, 706.
  17. See id. at 706.
  18. Zaheer, supra note 13, at 518.
  19. See Cong. Rec. 118 (1972): 705, 706.
  20. Nantiya Ruan, “Accommodating Respectful Religious Expression in the Workplace,” Marq. L. Rev. 92 (2008): 1, 16, 17.
  21. Peter Zablotsky, After the Fall: The Employer’s Duty to Accommodate Employee Religious Practices Under Title VII After Ansonia Board of Education v. Philbrook,” U. Pitt. L. Rev. 50 (1989): 513, 547; Ruan, supra note 20, at 16, 17.
  22. See part 1 (Liberty, May/June 2014) under “The History of Title VII and Its Amendments.”
  23. See Carlos A. Ball,” Preferential Treatment and Reasonable Accommodation Under the Americans With Disabilities Act,” Ala. L. Rev. 55 (2004): 951; Peter D. Blanck, “The Economics of the Employment Provisions of the Americans With Disabilities Act: Part I—Workplace Accommodations,” DePaul L. Rev. 46 (1997): 877; Michelle A. Travis, “Lashing Back at the ADA Backlash: How the Americans With Disabilities Act Benefits Americans Without Disabilities, Tenn. L. Rev. 76 (2009): 311.
  24. There have been numerous attempts in Congress to pass the Workplace Religious Freedom Act as a response to Hardison and Philbrook. The Workplace Religious Freedom Act is based, at least in part, on the ADA. Although there are similarities between the proposal put forth in this paper and the Workplace Religious Freedom Act, this paper takes no position on the passage of the act nor does it endorse the act.
  25. See e.g., Trans World Airlines, Inc., v. Hardison, 432 U.S. 63, 68, 69 (1977).
  26. See Office of Disability Employment Policy, U.S. Dept. of Labor, Survey of Employer Perspectives on the Employment of People with Disabilities (2008), available at www.dol.gov/odep/documents/survey_report_jan_09.doc.
  27. See 42 U.S.C. § 2000 (e) 2000 (e=17), and accompanying text.
  28. See supra note 22.
  29. It should be noted that the ADA has been amended to provide greater accommodation to persons with disabilities. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2, 122 Stat. 3553, (2008) (effective Jan. 1, 2009). This piece will not deal with the amended version of the ADA, as the amendments provide an even greater accommodation for persons with disabilities than recommended in this piece.
  30. .42 U.S.C. § 12111(8) (2006).
  31. .29 C.F.R. § 1630.1(g) (2010).
  32. .42 U.S.C. § 12112(a) (2006).
  33. .42 U.S.C. § 12111(8).
  34. .42 U.S.C. § 12112(b)(5)(A).
  35. .42 U.S.C. § 12111(10)(A) (2006).
  36. .42 U.S.C. § 12111(10)(B).
  37. James Sonne, “The Perils of Universal Accomodation: The Workplace Religious Freedom Act of 2003 and the Affirmative Action of 147,096,000 Souls,” Notre Dame L. Rev. 79 (2004): 1047(citing 2 EEOC Compl. Man. § 902, at 6908A, 5467-6, 5467-28 5467-31 [2003]); see also U.S. Equal Employment Opportunity Commission, “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” www.eeoc.gov/policy/docs/accommodation.html.
  38. 535 U.S. 391 (2002).
  39. Id. at 394.
  40. Id.
  41. Id.
  42. Id. at 394, 395.
  43. Barnett, 535 U.S. at 395 (quoting opinion of the district court).
  44. Id. (quoting U.S. Airways, Inc., v. Barnett, 228 F.3d 1105, 1120 [9th Cir. 2000]).
  45. Id. at 397.
  46. Id. at 397, 398.
  47. Id. at 398.
  48. See Barnett, 535 U.S. at 398.
  49. Id. at 399.
  50. See Barnett, 535 U.S. at 400-01.
  51. Id.
  52. Id. at 406.
  53. 553 F.3d 121 (1st Cir. 2009).
  54. Id. at 124, 125.
  55. Id. at 126.
  56. Id. at 127.
  57. Id. at 125.
  58. Tobin, 553 F.3d at 137 (citing U.S. Airways, Inc., v. Barnett, 535 U.S. 391, 397 [2002]).
  59. Id. at 137, 138.
  60. Id. at 140.
  61. Id. at 140, 141.
  62. See supra notes 23-26 and accompanying text.
  63. See part I (Liberty, May/June 2014), “The Supreme Courts’ Response—TWA v. Hardison.”
  64. Sonne, at 1023, 1034, 1050, 1069-70 and n.282. Professor Sonne also lists other reasons that are specific to the Workplace Religious Freedom Act. This paper will not address those arguments, as it is not advocating for the passage or defeat of the act. Rather, this paper is merely recommending that Title VII religious employment discrimination claims be treated the same as ADA claims.
  65. See 118 Cong. Rec. 118 (1972): 705, 706. Senator Randolph stated, “It is my desire, and I hope the desire of my colleagues, to assure that the freedom from religious discrimination in the employment of workers is for all time guaranteed by law.” Id. at 705.
  66. See part I (Liberty, May/June 2014) under “The Early History of Religious Accommodation.”
  67. See “Guidelines on Discrimination Because of Religion,” Fed. Reg. 40 (Oct. 31, 1980): 72610 (codified at 29 C.F.R. pt. 1605).
  68. See Sonne, at 1023, 1034, and 1050.
  69. Id. at 1051.
  70. Id.
  71. Id. at 1053, 1054.
  72. Id. at 1052.
  73. Sonne, at 1023, 1034, and 1054.
  74. Id.
  75. Id. at 1054, 1055.
  76. See Ruan, supra note 20, at 17.
  77. Sonne, at 1023, 1034, and 1055.
  78. Trans World Airlines, Inc., v. Hardison, 432 U.S. 63, 92 n.6 (1977) (Marshall, J., dissenting). It is unclear why $150 was not a de minimis cost even under the majority’s reasoning.
  79. 42 U.S.C. § 12111(10)(A) (2006) (defining an undue hardship).
  80. Sonne, at 1023, 1034, and 1055, 1056 (discussing “shift and job preferences” and efficiency losses).
  81. Id. at 1055.
  82. Id.

Article Author: Keith Blair

Keith S. Blair heads the Blair Law Firm in Columbia, Maryland. He has served in the U.S. Department of Justice, where he litigated a number of tax cases. He has also served as director of the Tax Clinic at the University of Baltimore School of Law.