When Reasonable Accommodation Is Not - Part 3: Title VII and BeyondKeith Blair September/October 2014
“We live in an era of uncertainty and anxiety about jobs. Workers who require religious accommodations are particularly vulnerable in this environment. With the abundance of people eager for employment, workers needing an accommodation face a perilous choice: ask for an accommodation that might precipitate loss of the position or compromise their religious belief in order to keep employment.
“The following series of articles, taken from a study I wrote for the Arkansas Law Review, analyzes religious accommodations in the workplace and the uncertainty facing employees that need these accommodations. It proposes that the Americans with Disabilities model for dealing with workplace accommodations be a model for workplace religious accommodations. In short, rather than looking at workplace religious freedom accommodations through the eyes of the employers, I urge that the accommodations should be looked at from the employee‘s point of view.” —Keith Blair
The Hardison and Philbrook cases have created a landscape for employees that is counter to the intent of Title VII. The amendments to Title VII that added religion as a protected category were enacted to ensure that employees with religious and workplace conflicts would be able to resolve the conflicts in a way that would enable the employees to meet both sets of obligations.1 While not all conflicts could be resolved in favor of the employee’s religious obligations, the focus was squarely on how to help the employee.2 The reasonable-accommodation regime that has evolved has taken the focus off helping the employee resolve the conflict. Instead, the focus is on how to minimize the burden on the employer in resolving the conflict.
Although Title VII seems to require a broad reading of accommodation, courts have been reluctant to read it broadly.3 Courts generally find either that if an employer were to provide an accommodation that the employer would suffer a hardship, or that any accommodation provided by an employer is sufficient—and therefore reasonable—and meets the standards of Title VII.4 Judges have generally not been willing to require deviation from rules of general or neutral applicability in religion cases despite Title VII’s seemingly broad mandate.5
By using the approach toward reasonable accommodation that the Americans with Disabilities Act (ADA) uses, employees who are facing conflicts between their religious practices and workplace rules will have a more even playing field when attempting to negotiate an accommodation. The approach taken by the ADA requires more of an accommodation by the employer. This section looks at how Title VII currently handles accommodations and suggests how required accommodations might be different if the ADA approach were used.
Current Test Under Title VII
The test for proving a case of religious discrimination is fairly straightforward. In order to prove a prima facie case, an aggrieved employee must prove: (1) that he/she has a religious practice, belief, or observance that conflicts with a requirement of employment; (2) that the practice, belief or observance is required because of a bona fide belief of the employee; (3) that the employer has actual notice of the conflict; and (4) that the employee has suffered or will suffer an adverse employment action because of the employee’s noncompliance with the employment requirement.6 This test is usually not where the problem arises for employees, however. It is the next step in the process of employment-discrimination claims where employees usually fail.
After the employee makes a prima facie case, the employer must show that it has made a good-faith effort to accommodate the employee’s beliefs.7 If the attempt to accommodate the beliefs was unsuccessful, the employer must show that it was not reasonably possible to accommodate the employee without an undue hardship.8 The hardship required to defeat the request for an accommodation is minimal because of Hardison and Philbrook, which established that a hardship means only a de minimis cost to the employer.9
For religious employees who seek an accommodation by their employers to meet religious obligations, the Hardison and Philbrook decisions could not have been less welcome. An employer’s responsibility to accommodate an employee’s religious needs has been narrowed to such an extent that the employer can meet its burden merely by offering a token accommodation.10 As a result, many accommodations sought by employees have been found to create an undue burden.11
Duty to Cooperate
The slim legislative history of Title VII contemplated that employees and employers would work together in order to achieve an accommodation that balanced the employee’s religious need and the employer’s need to run a business.12 This cooperation not only would have spread the burden more equitably, but would also have contributed toward creating a workplace that contains diverse viewpoints. Despite the anticipated cooperation, the religious employee seems to be the party who bears the greatest burden in obtaining an accommodation. Because of the de minimis undue hardship standard of Hardison and Philbrook, employers need not do much to accommodate the needs of employees who have a religious conflict at work.
If an employee does not cooperate with an employer in attempting to reach an accommodation, he/she has no chance of being successful in a religious discrimination claim.13 Courts have recognized this duty of an employee to cooperate in finding a reasonable accommodation. In a Massachusetts case, an employee filed a complaint against her employer after she was fired for wearing facial piercings at work.14 The employee claimed that she needed to be groomed in that manner because of her religious beliefs.15 The First Circuit ruled in favor of the employer, finding it would place an undue hardship on the employer to require him to allow the plaintiff to wear her facial jewelry.16 The First Circuit, quoting from the district court opinion, stated, “[The] search for a reasonable accommodation goes both ways. Although the employer is required under Title VII to accommodate an employee’s religious beliefs, the employee has a duty to cooperate with the employer’s good faith efforts to accommodate.”17
Requiring an employee to cooperate in the fashioning of a reasonable accommodation is fair. It also does not undermine the goal of looking at the religious and workplace conflict through the eyes of the employee. The cooperation requirement actually places the employee on equal footing with the employer. It offers the employee respect in that it makes him/her an equal partner in the effort to solve the problem. Focusing solely on how the accommodation affects the employer without any input from the employee on the accommodation marginalizes religious employees and their needs.
A question related to the employee’s duty to cooperate is how much does an employee have to cooperate? Or, as one commentator puts it, does an employee have to compromise his/her religious beliefs?18 A minority of courts have stated that an employee may be required to compromise his/her religious beliefs in order to meet the duty to compromise.19 Those courts, however, appear to take the position that religious belief and practices are like a cafeteria menu where an employee can pick and choose which beliefs he/she wants to observe.20 This position thus makes it easier for courts to say that an employee must compromise his/her religion and that an employer need not accommodate the employee.21
This lack of respect for the needs of employees is further evidenced by the fact that an employer can meet its obligation of reasonably accommodating an employee even if it is an accommodation that is not favored by the employee. In other words, the employee must cooperate in crafting an accommodation, but the employer does not have to cooperate with the employee. The employer may offer any accommodation that it deems reasonable.22 Again, cooperation need not mean that the employee’s preferred method of accommodation will always be chosen. But if the duty to cooperate were also a requirement on the employer, this would help ensure that employees’ needs were truly being considered in the crafting of an accommodation.
Despite the imposition of the cooperation requirement, employees do not need to compromise their religion as part of an accommodation. A majority of courts have held that the employee’s duty to compromise is not synonymous with a duty to compromise his/her religion.23 This view seems consistent with the legislative intent of Title VII.24 Indeed, it would be incongruous with Title VII to require an employee to compromise a religious belief in order to accommodate a religious conflict.
The current law on reasonable accommodation and the duty of cooperation does offer the employee one glimmer of sunshine: If an employer does not offer an accommodation to the employee, the duty of the employee to cooperate is not triggered.25
Accommodations That Do Not Directly Implicate Financial Concerns
An important element of the reasonable accommodation regime is that the accommodation must eliminate the conflict between the employee’s religious requirements and the employer’s work requirements.26 This circumstance generally comes into play when an employee is offered a shift swap as an accommodation for time off for a religious need.27
One commentator who discusses the courts, treatment of shift swaps indicates that the courts are “ambivalent” toward religious-accommodation claims.28 Shift swaps are similar to day-of-worship accommodations, but not identical.29 Shift swaps occur when an employee needs a day off for a religious observance, and the employer allows the employee to swap shifts with another employee rather than granting leave directly.30
Federal district courts favor voluntary shift swaps and generally view them as a reasonable accommodation for Title VII purposes.31 A shift swap that does, in fact, eliminate the conflict between the employee’s need for religious time off and the employer’s job requirements is a reasonable accommodation.32 The thorny issue with shift swaps arises when the employer suggests a shift swap in an attempt to accommodate the employee but no one is willing to swap shifts. Courts have found that this circumstance is still a reasonable accommodation.33
From a purely legal standpoint, the shift-swap accommodation does appear to be reasonable even if there is no employee readily available to swap shifts. However, from a policy viewpoint, this situation is problematic. If one of the goals of Title VII is to enable religious employees to practice their faith, within reason, while keeping their jobs,34 the shift swap solution does not achieve that goal if no second employee is willing to swap. That would place the “religious” employee in the position of having to choose between his/her job and his/her faith, which is contrary to the goals of Title VII.
In summary, courts have taken a pro-employer view of what constitutes a reasonable accommodation. This narrow view is contrary to the congressional intent for Title VII religious-employment-discrimination cases.35
Religious Discrimination Claims Are Different Than Claims Based on Race, Color, Sex, or National Origin
While there are similarities between discrimination based on religion and discrimination based on race, color, sex, or national origin,36 religious discrimination also demonstrates some unique differences.37 Those differences require a different type of analysis than that which is done for the other classifications of section 701(j).38
People of faith who claim religious discrimination in the workplace are seeking an accommodation. They wish to work a different shift, or not to work a particular day, or to wear something that nonreligious employees are not allowed to wear. In other words, they wish to be treated differently. Employers have a duty to accommodate those needs. Employees who claim workplace discrimination based on race, color, sex, or national origin are seeking the opposite—they wish to be treated the same.39
Although the Title VII religion cases focus mostly on the accommodation of the employee, employers use neutrality as a defense for making accommodations.40 While neutrality is a principle applied in cases that deal with discrimination in the other Title VII classifications, it is not an intuitive principle in the religion context, as there is a mandate for employers to accommodate their employees.41
Professor Karen Engle has examined neutrality in the Title VII religion cases and has found two trends. One is that courts will consider a workplace rule neutral because it does not discriminate against any particular religion and, in fact, disallows all religious practices.42 This neutrality, however, ignores the fact that Title VII contemplates that employees will and should be treated differently in order to resolve conflicts between religious practice and workplace rules.
Additionally, the goal of Title VII is not to disallow all religious practices. The goal is to allow religious practices as best as possible. Focusing on whether other religious employees receive the same accommodation misses the point. An Orthodox Jewish employee might need a day-of-worship accommodation, while a Muslim employee would not. The fact that the Muslim employee does not need an accommodation for a day of worship should have no bearing on whether the Orthodox Jewish employee receives the accommodation.
Additionally, the question of whether all religions have been treated the same focuses on the employer’s perceived need to have religious neutrality in the workplace. Although an accommodation should not favor one religion over another, an accommodation is not suspect if it only reaches one religion.43 The focus, instead, should be on the need to ensure that the religious employee is able to meet both his/her religious and workplace obligations. That focus is in keeping with the goals of Title VII.44
Another view of neutrality is that courts may deny claims on the grounds that the employee was treated the same as other employees.45 This claim of neutrality, however, does not acknowledge that religious employees have a need to be treated differently through an accommodation.
Religious Discrimination Is Not the Same as Status-based Discrimination
As one commentator discusses, the principal similarity between discrimination based on religion and the other forms of discrimination is that the discrimination is based on the status of the person.46 Just as a person can face discrimination for her status as a person of color, or as a woman, or as a person of Indian descent; a Muslim, or Jew, or Hindu may face discrimination based on his/her status of being identified with the particular religion.47 However, the vast majority of religious discrimination claims are not based on the religious status of the individual. Rather, the claims are based on the individual’s practice, belief, or observance.
An example of a practice-based religious discrimination claim would be one where an employee wished to have time off because of a day of worship, similar to the employee in Hardison.48 An employer who does not wish to grant the time off to this employee generally is not doing so because of the religious status of the employee. Rather the employer does not wish to accommodate the employee’s religious practices.49
Additionally, Title VII defines religion as encompassing all aspects of religious observance, practice, and belief.50 Employers must accommodate an employee’s religious observance and practice of belief unless that would pose an undue hardship to the employer.51 Thus, the words of the statute call for employers to accommodate the religious needs of their employees and, in essence, religion itself.52
Religion Is Not Immutable
A major difference between religion and the other Title VII categories is that religion is not “immutable.” Religion is not a physical trait like gender or race. While one can be “born into” a particular religion at birth, like national origin,53 that is not a perfect analogy. Religion is more likely to be something that is initially chosen unlike the other categories. Religion deals with how one lives one’s life and what one believes. As Professor Engle puts it, religious practice can be both compelled and voluntary.54 Whether one considers that practice compelled or voluntary is a central question in Title VII religious discrimination cases.55
Not only is religion not immutable; it is something that is a choice and yet is not a choice. Most religious persons at some point in their life make a decision to follow a particular religion. That choice may be a conscious choice made because of attending worship services or some life-changing experience. The decision can be a choice that is made over time, as when a person is born into a particular religion. In any event, a choice is ultimately made.
But when that choice is made and religion becomes part of the person’s life, there is no room for choice. Either the person will embrace the religion and its practices and beliefs and it will become an all-encompassing part of the person’s life, or he/she will not and the beliefs and practices of the religion will become meaningless to the person. When the person lets religion become all-encompassing, there is no choice as to whether or not to follow the religion’s practices or beliefs.
For example, there is no question that an Orthodox Jewish person will not work from sundown on Friday evening through sundown Saturday evening. That is his/her Sabbath, his/her day of rest, and it would be unthinkable for him/her to even consider doing secular activities on that day. It is as much a part of his/her being as the color of his/her hair.
Some commentators define the accommodation that employers must give employees under Title VII as a “positive right” because it creates an exception to the neutrality principle unless the accommodation would cause an undue hardship to the employer.56 Title VII, therefore, requires courts to balance the interests of the employee who seeks an accommodation for his/her religious practice, belief or observance, with those of the employer who will bear the cost of that accommodation.57 Courts, in other words, must decide when the neutral rules are subject to an exception for religious reasons.58
Despite the accommodationist nature of Title VII, courts have been reluctant to grant accommodations to employees.59 This might be because Title VII is an anti-discrimination statute, and courts are unwilling to seem as if they are endorsing religion.60 Additionally, courts seem unwilling to impose much, if any, burden on employers to accommodate their employees’ religious needs.61 This reluctance to provide accommodations in religion cases actually makes them similar to the race, gender, and national origin cases.62 And, as such, employees face a burden that they should not have to face.
Keith 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 the director of the tax clinic at the University of Baltimore School of Law.
1 Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marq. L. Rev. 1, 16 (2008).
3. See Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title Vll, 76 Tex. L. Rev. 392 (1977).
6 Steven D. Jamar, Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom, 40 N.Y.L. Sch. L. Rev. 719, 743 (1996); see also Reed v. Int’l Union, United Automobile, Aerospace and Agric. Implement Workers of Am., 569 F.3d 576, 580 (6th Cir. 2009); Webb v. City of Philadelphia, 562 F.3d 256, 259 (3d Cir. 2009); E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); Bowles v. N.Y.C. Transit Authority, 285 F. App’x 812, 813 (2d Cir. 2008); Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1320 (11th Cir. 2007); Ellis v. Principi, 246 F App’x 867, 872 (5th Cir. 2007).
7 Jamar, supra note 176, at 743.
10See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).
11See e.g. Trans World Airlines, Inc. 432 U.S. 63; Ansonia Bd. of Educ. 479 U.S. at 60.
12 Ansonia Bd. of Educ., 479 U.S. at 69.
13 Debbie N. Kaminer, Title Vll’s Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L. 598 (2000).
14 Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 130 (1st Cir. 2004).
16 Id. at 137.
17 Id. at 131 (quoting Cloutier v. Costco Wholesale Corp., 311 F. Supp. 2d 190, 198 [D. Mass. 2004]); see also Jones v. United Parcel Serv., Inc., 307 F. App’x 864, 866 (5th Cir. 2009) (quoting Bruff v. N. Miss. Health Services, Inc., 244 F.3d 495, 501 [5th Cir. 2001] ([“An employee has a duty to cooperate in achieving his accommodation of his or her religious beliefs”]).
18 Kaminer, supra note 13, at 597.
19 Id. at 599.
22See Bruff,244 F.3d 495 at 501 (“Once the Medical Center establishes that it offered Bruff a reasonable accommodation, even if that alternative is not her preference, they have, as a matter of law, satisfied their obligation under Title VII”).
23 Kaminer, supra note 13, at 600.
24SeeKeith Blair, “A Civil Right Tested,” Liberty, May/June 2014, pp. 12-17.
25 Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481,1488-89 (10th Cir. 1989) (citing Brener Diagnostic Ctr. Hosp., 671 F.2d 141, 146 [5th Cir. 1982]; Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 401 [9th Cir. 1978]).
26See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 (1986).
27 Kaminer, supra note 13, at 605.
28 Id. at 606.
29 Id. at 605.
31See Beadle v. Hillsborough Cnty. Sheriff’s Dep’t., 29 F.3d 589, 593 (11th Cir. 1994), Moore v. A. E. Staley Mfg. Co., 727 F. Supp 1156, 1161 (N.D. Ill. 1989); Kaminer, supra note 13, at 606.
32See Beadle, 29 F.3d at 591, 593 (finding that the employee was afforded a reasonable accommodation even though he could only negotiate a shift swap on two occasions); Kaminer, supra note 13, at 604, 605 (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 ).
33 Kaminer, supra note 13, at 605, 606; see Beadle, 29 F.3d at 591, 593.
34See Ruan, supra note 1, at 15.
35 Id.; see also Kaminer, supra note 13, at 606.
36See e.g., Tseming Yang, Race, Religion, and Cultural Identity: Reconciling the Jurisprudence of Race and Religion, 73 Ind. L.J. 119-121 (1997).
37See Jamar, supra note 166, at 742.
40 Engle, supra note 3, at 392.
42 Engle, supra note 3, at 392 (citing United States v. Bd. of Educ., 911 F.2d 882 [3d Cir. 1990]). Professor Engle relates a case in which a federal appeals court upheld the dismissal of a Muslim teacher for wearing religious garb. The court found that if the teacher had been accommodated, the school district would have run afoul of a state law banning the wearing of anything that indicated that the teacher was a member of a particular religion. United States, 911 F.2d 882, 891 (3d Cir. 1990).
43 Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 706 (1992).
44SeeBlair, supra note 24.
45 See id.
46 Jamar, supra note 76, at 745.
47 See id.
48 SeeBlair, supra note 24.
49 Jamar, supra note 6, at 746.
50 42 U.S.C. § 2000e(j) (2006); see alsoEngle, supra note 3, at 357, 358.
51 Engle, supra note 3, at 358.
52 Id. at 358.
53 See id. at 327.
54 Id. at 359.
55 Id. at 353.
56 Engle, supra note 3, at 357, 358 (quoting Michael W. McConnell, Accommodation of Religion: An Update and a Response to Critics, 60 Geo. Wash. L. Rev. 685, 737 ).
58 Id. at 358, 359.
59 Id. at 360.
61 Id. at 361.
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.