The Supreme Court and title vii

Roberto L. Corrada January/February 2003

In 1995 Don Reed was fired as an air traffic controller when his religious belief about the Saturday Sabbath came into conflict with the dictates of his employer. For several years Reed had been accommodated in his belief that the Sabbath should be kept sacred by holding a job that required work only during the workweek and then by arranging job swaps for himself with other willing workers. However, in 1995 the facility experienced an extraordinary amount of transfer activity, and staffing dipped below the number of full-time air traffic controllers required by the collective bargaining agreement at Reed's unionized workplace. Reed worked closely with his union to propose several reasonable accommodations. All were refused by the employer. Reed was then fired, and as a result, staffing went down further. The employer then implemented the accommodations requested by Reed, but only after he was terminated. Don Reed was vindicated when he won a $ 2.25 million verdict in Denver district court, but he won because the jury found disparate treatment, that Reed's employer had treated him differently because of his religion, and in fact, that Reed's boss was biased against him as a result of Reed's religious beliefs and requirements. If Reed had been left to argue only that his employer refused a reasonable accommodation, Reed might not have prevailed. In Reed's case, the employer had no interest in accommodating Reed's religious belief, and, I believe, that's partly because of the message sent by current law.

What is the law surrounding religious conflicts with work requirements, like Don Reed's? Title VII of the Civil Rights Act of 1964 included discrimination on the basis of religion in its prohibitions of conduct by employers. The law was amended, however, in 1972 after an equally divided Supreme Court, in the case of Dewey v. Reynolds Metal Co., upheld a U.S. court of appeals decision questioning the validity of Equal Employment Opportunity Commission (EEOC) regulations requiring employers to act affirmatively to accommodate religious practice.

The decision meant that if an employee's religious practice came into conflict with a neutral workplace rule, the employee would have to choose between the edicts of his/her faith and, often, his/her job itself. The current law provides that it is unlawful in employment to discriminate upon the basis of religion, but because of the 1972 amendment to Title VII, it also requires an employer to "reasonably accommodate" employee religious observance and practice unless doing so would place an "undue hardship" on the employer. The amendment was offered by Senator Jennings Randolph, who explained that the primary purpose was to protect Saturday Sabbatarians such as himself from employers who refuse to hire or to continue to employ them because of the rigidity of their religious practice. The amendment was unanimously approved by the Senate on a roll call vote and was accepted by a conference committee whose report was approved by both houses. The 1972 amendment to the Civil Rights Act of 1964 remains the law on the books today, but has been importantly interpreted by two Supreme Court decisions and a significant concurrence in a related Supreme Court case.

Today an employee bringing a Title VII claim for failure to reasonably accommodate his/her religious practice generally must show: (1) that he or she has a sincere religious belief that conflicts with an employment requirement; (2) that the employer had notice of the conflict; and (3) that he or she was disciplined or would otherwise suffer at the hand of the employer for adherence to the religious belief or for failure to comply with the employer's requirement. If an employee can show these things, the burden of proof in the case then shifts to the employer to show that it offered reasonable accommodation or that any accommodation would cause undue hardship.

Since Title VII requires accommodation of religion in the workplace, it is hard to know why employers who are ostensibly unbiased toward a person's religious requirements sometimes go to such great extremes to avoid accommodation. In Don Reed's case, for example, the employer maintained that it was not biased against Reed but that he could not be reasonably accommodated in his job. This, despite the fact that Reed had been accommodated for many years, and that, because of a shortage of air traffic controllers, the facility would have to operate for months with only five controllers, one controller less than Reed. In other words, rather than accommodating Reed only on Saturdays, the employer put itself in the position of having to figure out how to operate without Reed for seven days of the week!

One of the reasons for the employers' extreme actions in these accommodation cases may well be the very tepid protection offered by Title VII, as interpreted, to religious objectors in the American workplace. While on its face the law prohibits discrimination on the basis of religion and provides a strong affirmative obligation to accommodate religious observance or practice, this mandate has been substantially diminished by the United States Supreme Court's decisions in TWA v. Hardison, 432 U.S. 63 (1977) and in Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), interpreting the statutory language of the accommodation requirement. The Hardison case presents a pretty typical accommodation scenario. In that case Larry Hardison was hired by TWA in 1967 to work as a clerk in its Kansas City maintenance base, a 24-hour operation. TWA maintenance employees were represented by a union. Hardison was required as a condition of employment to become a union member and to abide by the provisions of the collective bargaining agreement between the union and TWA. The agreement contained a seniority system for deciding which employees should be preferred in bidding for new jobs, vacancies, transfers, vacations, and shift assignments.

Ordinarily a seniority system is a highly efficient and properly discriminating method for establishing work preferences. However, in 1968 Larry Hardison began to study and to practice the religion known as the Worldwide Church of God, one of whose fundamental beliefs was that the Sabbath must be observed by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also forbade work on certain specified religious holidays. The requirements of Hardison's job came into conflict with his new religious beliefs when Hardison transferred to a better job within TWA that would allow him to work the day shift. He was asked, because of his relatively low seniority, to work on Saturdays when a fellow employee took vacation time. Hardison requested an accommodation for his religious beliefs, but the union was unwilling to modify its seniority system in any way, and TWA was unwilling to operate without a person to fill Hardison's position. He apparently had no choice. He either had to leave his job or violate the strict dictates of his faith. Hardison maintained that Title VII required an accommodation regarding the requirements of the TWA seniority system. Nonetheless, TWA and the union refused to provide an accommodation.

In TWA v. Hardison the Supreme Court found that Title VII does not require employers or unions to bear more than a de minimis cost to reasonably accommodate religious observers, because any greater cost would impose an undue hardship on the conduct of the employer's business. So undue hardship, mentioned earlier, equals only a de minimis burden according to the Supreme Court. In denying Hardison statutory relief, the Court reviewed and rejected three accommodation proposals. Those accommodations included: (1) allowing Hardison to "work a four-day workweek utilizing in his place a supervisor or another worker on duty elsewhere;" (2) filling Hardison's Saturday shift with other available personnel; and (3) arranging for Hardison to swap jobs with another employee for Saturdays. The Court found that each alternative would have imposed an undue hardship on TWA or the union, and therefore, none was required by Title VII, even though the proposal to pay for another employee would have cost TWA only 0 (the total for three months, at which time he would have been eligible for transfer back to his original facility), and arranging a voluntary job swap would have had little appreciable effect on TWA's seniority system.

The Supreme Court's 1977 decision in Hardison has had a negative effect on scores of religious individuals whose beliefs and practices conflict with seniority systems and other workplace policies. Even practices as benign as voluntary job swaps with other workers have been rejected by employers in some cases. Employer apathy toward religious accommodation is, I believe, in no small part, a result of the culture of nonaccommodation ushered in by the sheer breadth of the Hardison opinion.

Equally as limiting as Hardison, some believe more so, is the Supreme Court's 1986 opinion in Ansonia Board of Education v. Philbrook. In that case, Ron Philbrook, a school- teacher and a member of the Worldwide Church of God, was bound by a collective bargaining agreement that provided only three days of annual leave for mandatory religious holidays but contained an additional provision for three days of annual leave for necessary personal business. When Philbrook proposed using his personal business days for religious observance, the school district refused. Philbrook was forced to take unpaid leave or schedule hospital visits in order to claim medical leave to observe the religious holidays of his faith. The Supreme Court held that once a reasonable accommodation is proffered by an employer, the employer need not implement the accommodation preferred or proposed by the employee, even if it means the employee will suffer financially.

It is important to note that these Supreme Court decisions involved questions of statutory interpretation of Title VII; they were not results expressly compelled by the Constitution, although it's fairly clear that the Supreme Court was guided by constitutional parameters in both cases. The Supreme Court's constitutional establishment clause concerns were more evident in a 1985 religious accommodation case that did not involve Title VII. In Estate of Thornton v. Caldor, 472 U.S. 703 (1985), the Supreme Court struck down as unconstitutional a State of Connecticut law that required employers to absolutely accommodate Sabbath observance. The Court found that the law had a primary effect of advancing religion in that it privileged Sabbath observance. Nonetheless, probably because she saw that the Caldor decision had direct implications for Title VII, Justice O'Connor, in a concurring opinion, commented on how Title VII was distinguishable from the Connecticut law. As O'Connor stated: "Title VII calls for reasonable rather than absolute accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance. . . . I believe an objective observer would perceive it as an anti-discrimination law rather than an endorsement of religion or a particular religious practice." Since the Court's decisions in Hardison, Caldor, and Philbrook, the Court's establishment clause jurisprudence has softened a bit, making a more proactive accommodation clause, say one enacted by Congress, even more feasible today than in the past, so long as certain principles are adhered to: (1) it must not work a forced hardship on other employees; (2) it must not favor a particular religion or religious practice; and (3) it must not require an absolute accommodation, meaning requiring accommodation regardless of the employer's circumstances. Certainly I believe that the Hardison and Philbrook decisions could be overturned in ways that do not violate the establishment clause. Requiring the employer to bear some cost of accommodation or allowing employees to take all available leave as religious leave should not serve to strain our Constitution.

In sum, the express language of Title VII is sufficiently protective of religious practice in the workplace, allowing those who have religious conflicts with workplace requirements to, like their fellow workers, retain jobs or continue to work in those jobs on the same basic terms as their fellow workers. However, Supreme Court decisions interpreting Title VII have diluted the statutory language, and together send a message to employers and employees alike that requirements of religious conscience are simply not very important compared to the requirements of a job. Imagine the effect on a worker if he is told that he need not, and in some cases cannot, swap shifts with another worker to accommodate religious practice, or worse, the effect on workers as a whole when they are told that necessary personal business cannot include leave for religious observance. Michael Wolf, Bruce Friedman, and Daniel Sutherland, in their 1998 book Religion in the Workplace, have noted that the Supreme Court, in Hardison and Philbrook, has, in effect, "interpreted Title VII to give primary importance to an employer's economic interest; a cost that is an undue hardship when borne by the employer may nevertheless be reasonable when borne by the employee.

*Professor Corrada has written and spoken extensively on the subject of religion in the workplace, most recently at the Pew Forum on Religion and Public Life Conference "Reconciling Obligations: Accommodating Religious Practice on the Job" in Washington, D.C., May 21, 2002. For more by Professor Corrada on this topic, see Roberto L. Corrada, "Religious Accommodation and the National Labor Relations Act," Berkeley Journal of Employment and Labor Law 17 (1996): 185; Roberto L. Corrada, Workplace Religious Freedom Act of 1997, Hearings on S. 1124 Before the Senate Committee on Labor and Human Resources, 105th Congress, 1st Session 50-57 (1997); Roberto L. Corrada, "Proceedings of the 200 Annual Meeting of the Association of American Law Schools Section on the Law and Religion: Religion in the Workplace," Employee Rights and Employment Policy Journal 4 (2000): 89.

Article Author: Roberto L. Corrada