A Hobson's Choice Model for Religious Accommodation

• Author: Julie Manning Magid,Jamie Darin Prenkert
• Date: 01 September 2006
• DOI: http://doi.org/10.1111/j.1744-1714.2006.00023.x
• Published date: 01 September 2006

A Hobson’s Choice Model for

Religious Accommodation

Jamie Darin Prenkert and Julie Manning Magid

n

I. INTRODUCTION

Employers are sometimes required by Title VII of the 1964 Civil Rights

Act

1

to accommodate the sincere religious practices and observances of

their employees. That requirement is often ineffective for employees who

seek accommodations, especially for employees with nontraditional reli-

gious beliefs.

2

Though courts continue to expand the employers’ safe

harbor under the undue hardship standard,

3

the problem with the

religious accommodation cases is as much a result of an unbounded

definition of sincere religious belief, practice, or observance (BPO) as it

is a failing of the undue hardship standard itself. Furthermore, courts have

been too solicitous when plaintiffs have attempted to turn run-of-the-mill

religious discrimination (disparate treatment) claims into claims of failure

to accommodate. Instead of amending Title VII to change the undue

r2006, Copyright the Authors

Journal compilation r2006, Academy of Legal Studies in Business

467

American Business Law Journal

Volume 43, Issue 3, 467–514, Fall 2006

n

Assistant Professors of Business Law, Indiana University Kelley School of Business.

1

42 U.S.C. §§ 2000e to 2000e-17 (2000).

2

See,e.g., Debbie N. Kaminer,Title VII’s Failure to Provide Meaningful and Consistent Protection of

Religious Employees,21BERKELEY J. EMP.&LAB. L. 575, 579 (2000) (stating that narrow court

precedent requires a congressional amendment clarifying employers’ accommodation re-

quirement); Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation

Provision to Redeem Title VII,76T

EX.L.REV. 317, 388–89 (1997) (noting that employers

consistently win religious accommodation cases, unless they simply refuse to consider any

form of accommodation, and that courts have undermined the broad reach of the statute by

expansively applying the undue hardship defense).

3

42 U.S.C. § 2000e(j) (2000) (‘‘The term ‘religion’ includes all aspects of religious observance

and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably

accommodate to an employee’s or prospective employee’s religious observance or practice

without undue hardship on the conduct of the employer’s business.’’ (emphasis added)). See also Trans

World Airlines v. Hardison, 432 U.S. 63, 84–85 (1977) (discussing the undue hardship

defense).

hardship standard,

4

the reasonable accommodation requirement can be

reinvigorated by utilizing it only in situations where religious employees

are faced with true Hobson’s choices,

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namely, when sincerely held

religious BPOs force them into making a conscious choice between their

religion and a work rule, practice, or policy. A choice between a sincerely

held religious BPO and a religion-neutral work rule (with its correspond-

ing adverse consequence for failure to comply) is, for the religious

employee, an untenable choice and appropriately sets up the judicial

balancing of an employee’s religious interest and an employer’s business

interests. It is a true Hobson’s choice.

By venturing beyond the Hobson’s choice paradigm, courts have

created muddled and ineffective doctrines and rules. As a result, over time,

the accommodation requirement is likely to continue its evolution into a

dead letter. The Workplace Religious Freedom Act (WRFA)

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purports to

add teeth to the accommodation requirement and appears to enjoy

broad, bipartisan support. However, WRFA raises serious Establishment

4

See infra Part III.C.

5

The phrase Hobson’s choice refers to a situation in which a person is given an apparently free

choice among two or more options, but in fact there is no choice at all. See Hobson’s choice,

REPORTER, Sept. 1992, at 8. The phrase originated from the policy of Thomas HobsonFa

stable owner in Cambridge, England, near the end of the sixteenth centuryFthat required

customers to take the horse in the stall closest to the door or take no horse at all. He did not

tolerate picking or choosing, which meant that those who arrived at the stable were subject to

Hobson’s choice of horses, in other words, no choice at all. Id. Modern usage has broadened

the meaning of the term a bit. Instead of referring strictly to situations in which the choice at

issue is truly illusory, Hobson’s choice is often used to refer to situations in which the choice

involves two undesirable options. See Wikipedia, Hobson’s Choice,at http://en.wikipedia.org/

wiki/hobson%27s_choice (last visited Oct. 21, 2005).

Depending on one’s view of religion, especially whether religion is a compelling force and/

or is immutable as a theoretical notion, the use of Hobson’s choice in the context of the Title

VII religious accommodation claim might be consistent with either the traditional or the

modern usage of the term. Cf. James A. Sonne, The Perils of Universal Accommodation: The

Workplace Religious Freedom Act of 2003 and the Affirmative Action of 147,096,000 Souls,79N

OTRE

DAME L. REV. 1023, 1065–69 (2004) (criticizing the notion of immutability of religious belief, as

apparently implicitly endorsed in WRFA). Because our focus in formulating the Hobson’s

Choice Model is on the sincerity of religious BPOs (measured primarily by evidence of

consistency of practice or observance) and not on notions of the immutability of religion, our

use of the term Hobson’s choice is likely best understood as adopting the modern usage.

6

S. 677, 109th Cong. (2005). The Workplace Religious Freedom Act, in one form or another,

has been introduced in Congress every year for the past decade. See Sonne, supra note 5,at

1025 n.10.

468 Vol. 43 / American Business Law Journal

Clause

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concerns,

8

as well as concerns regarding its practicality and

theoretical underpinnings,

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and fails to address the undertow of judicial

decision making in this area, which has evolved the accommodation

requirement into an impotent standard for judging the sincerity of a

claimed religious BPO and an overly broad invocation of the accommoda-

tion claim. The Hobson’s Choice Model we advocate addresses both of

those shortcomings and avoids WRFA’s Establishment Clause drawbacks.

In Part II of this article, we provide the relevant background for our

discussion, including the genesis of the religious accommodation require-

ment and the early interpretations of that requirement by the Equal

Employment Opportunity Commission (EEOC) and the Supreme Court.

In the first portion of Part III, we examine how courts often

uncritically assumeFthough they as often express doubtFthat basically

any belief is a sincerely held religious belief which triggers the accommo-

dation requirement subject to the undue hardship defense. While this

grudging assumption provides standing to plaintiffs in religious accom-

modation cases, we discuss how the courts often allow their doubts about

the religious belief to take root in the analysis of whether an accommoda-

tion would cause an undue hardship on the employer’s business. Using the

undue burden analysis to overcome an employee’s dubious religious

requirement against an employer’s autonomy and business judgment,

the courts routinely rule in favor of the employer. They often hold that an

accommodation would result in an undue burden even though the

employer has offered little or no evidence of any concrete (even de

minimis) burden on the operation of its business. The religious expres-

sion–proselytization cases illustrate this phenomenon vividly. In such cases,

courts have expanded the undue burden defense to grant coworkers a

heckler’s veto. The courts base the veto on employers’ pure speculation

regarding the potential harm resulting from accommodation, effectively

concluding that any religious expression is an undue burden per se

7

U.S. CONST.,amend. I (‘‘Congress shall make no law respecting an establishment of religion

. . .’’).

8

See,e.g., Gregory J. Gawlik, Note, The Politics of Religion: ‘‘Reasonable Accommodations’’ and the

Establishment Clause: An Analysis of the Workplace Religious Freedom Act,47C

LEV.ST.L.REV. 249

(1999) (discussing potential Establishment Clause challenges to WRFA under several tests

developed and employed by the Supreme Court over the past half-century).

9

See Sonne, supra note 5, at 1045–46 (‘‘WRFA 2003 . . . would significantly alter both the legal

and theoretical understandings of religion and its practice in the workplace.’’).

2006 / A Hobson’s Choice Model for Religious Accommodation 469