Restoring religious freedom to the workplace: Title VII, RFRA and religious accommodation.

• Jurisdiction: United States
• Author: Rosenzweig, Sidney A.
• Date: 01 June 1996

INTRODUCTION

Clashes between employers and employees over religious observance in the workplace are an increasingly familiar feature in the legal system. Accordingly, employees filed nearly 3000 charges of religious discrimination with the federal Equal Employment Opportunity Commission ("EEOC") and with state and local agencies in 1994--an increase of over thirty percent from 1990.(1) Many of these complaints involved employers' failures to accommodate the religious beliefs of their employees. The case law abounds with examples of the types of religious observance for which employees might require accommodation. For instance, the complaining employee may be a Sabbatarian, unable to work on Saturdays or on Sundays.(2) Alternatively, she may need to observe occasional holidays(3) or attend religious functions.(4) Her religion may require her to wear certain garb or maintain a certain appearance, in conflict with an employer's dress code.(5) She may object to attending mandatory meetings in which her employer conducts devotional services or exercises,(6) or, in the converse, may wish to conduct such services herself.(7) She may oppose medical diagnosis and treatment, which results in her above-average use of sick days.(8) Her beliefs may require that she live in a community with an active church of her denomination.(9) She may oppose having to sleep in the same room with a member of the opposite sex while on duty.(10) Her opposition to violence may render her unable to perform occasional occupational tasks,(11) or her religion may prohibit the use of her social security number.(12) Perhaps she is fundamentally opposed to affiliation with labor organizations,(13) or more narrowly, objects to such affiliation based on particular activities undertaken by her local union.(14) Her religious beliefs may proscribe mandatory donation to charity.(15) Her worship may involve the use of controlled substances in violation of her employer's policies,(16) or as in the most celebrated case of recent months, she may object to standing at work during the national anthem.(17)

Some expressions of religious belief require more accommodation than others. Title VII of the Civil Rights Act of 1964 sets the standard that determines whether employers must provide certain accommodations, or whether they may dismiss or discipline workers when the employee's religious requirements would be too burdensome to accommodate.(18) The Court has narrowly interpreted the statutory test of "undue hardship,"(19) permitting the employer to discharge the employee either when the employee's exercise of her religion poses more than a de minimis cost to the employer, or when accommodation would cause the employer to violate the law.(20)

The Religious Freedom Restoration Act of 1993 ("RFRA") prohibits the Government--federal, state or local--from substantially burdening an employee's free exercise of religion without a compelling interest and a showing that the intrusive law is narrowly tailored to achieve that compelling interest.(21) Although RFRA does not directly modify the standards of Title VII,(22) in an important class of cases it will have substantial effect.

RFRA creates a presumption that government regulation is unconstitutional when it substantially burdens an employee's religious exercise. No longer will an employer's reliance on complying with an otherwise valid law or regulation be the end of an inquiry into undue hardship. Instead, an employer's claim that some law within the Government's regulatory power constrains its ability to accommodate the employee triggers a RFRA analysis. Only if the employer--or the Government as intervenor--can sustain the law under RFRA as against the plaintiff-employee, is it reasonable for the employer to refuse to accommodate the employee. Title VII is not implicated by RFRA; instead, it is the labor law which "substantially burden[s] a person's exercise of religion."(23)

This Comment examines the requirements of Title VII in Part I. Then, in Part II, the attention turns to the Free Exercise Clause of the First Amendment, and RFRA's impact on First Amendment litigation in the context of employment discrimination. Last, Part III illustrates the analysis by examining the effect of RFRA on the most common area of Title VII religious-accommodation litigation, the inflexibility of seniority provisions of collective bargaining agreements to accommodate Sabbatarians.(24) In doing so, this Comment will argue that RFRA is a landmark development for employees who allege that their employers fail to reasonably accommodate their religious beliefs and exercise.

1. TITLE VII

   Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, sex, religion and national origin.(25) In cases of alleged religious discrimination, "[a]n employee establishes a prima facie case . . . by showing that: (1) the employee has a bona fide religious belief that conflicts with an employment requirement; (2) the employee informed the employer of this belief; (3) the employee was disciplined for failing to comply with the conflicting employment requirement."(26) Once the employee establishes her prima facie case, the burden shifts to the employer to show either that it offered any "reasonable accommodation"--and not necessarily the employee's preferred accommodation(27)--or that any potential accommodation would cause the employer "undue hardship."(28)

   Despite the apparently forceful meaning of "undue hardship,"(29) the Supreme Court has interpreted the term so as to dampen the standard's force.(30) As one commentator has stated: "The Title VII requirement that the secular employer reasonably accommodate the religious practices of the employee has been utterly minimized by the Court."(31) The Court did this in IWA v. Hardison,(32) in which it defined the monetary and nonmonetary thresholds that qualify as "undue."(33)

   1. De Minimis Cost: Economics Causing Undue Hardship

      In dollar terms, the Hardison Court held that undue hardship represents anything more than de minimis cost. Following a voluntary transfer that caused Larry Hardison to lose his seniority under the collective bargaining agreement, his employer, TWA, forced him to work Saturdays when another employee went on vacation.(34) Hardison proffered several proposed accommodations to his employer. The Court of Appeals for the Eighth Circuit found two of the accommodations to be reasonable: "TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, . . . TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages."(35) Justice White, writing for the Court, reversed the Eighth Circuit and rejected the accommodations: "Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages. To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship."(36) Justice Marshall, in dissent, noted the trifling extent of the efficiency loss discussed by the Court: $150 total in overtime costs until Hardison would have regained enough seniority to become "eligible to transfer back to his previous department."(37)

      Subsequent courts have attempted to distinguish between the trivial costs that qualify as undue hardships, and the even more trivial costs that do not. In Protos v. Volkswagen of America, Inc.,(38) for example, the Third Circuit distinguished Hardison on its facts: "Volkswagen regularly maintained, along with employees assigned to specific posts on the assembly line, a crew of roving absentee relief operators (ARO) to be deployed as substitutes for absent employees."(39) The Protos court accepted the district court's conclusions that the AROs were as efficient as Angeline Protos, and that "the employer here was not obliged to pay higher wages in order to fill Protos's vacancy."(40) Yet, the efficiency costs can be attenuated, and still represent an undue hardship. They can, for example, stem from "disruption of work routines, and a lowering of morale" among coworkers.(41) The willingness to find an undue hardship is heightened in cases in which public safety may be compromised by such disruptions.(42)

      Labor unions are held to a somewhat higher standard than the employers whose workers they represent;(43) while most cases seem to indicate that any monetary expense by an employer amounts to undue hardship, even when those expenses are only a drop in the bucket of the employer's revenues, courts have routinely found that an employee's objection to union affiliation, and the consequential loss to the union of that employee's dues, cannot constitute undue hardship.(44)

   2. Breaking the Law: Statutory Compliance Causing Undue Hardship

      In contrast to an employer's defense that economic factors cause undue hardship, the employer may claim that accommodation would result in violation of a statute or regulation, with the consequences of that violation constituting undue hard-ship. Typically, as in Hardison, the employer invokes the seniority provisions of collective bargaining agreements, which are enforced by the federal labor laws, to prevent the accommodation of Sabbatarians.(45) As the Court explained in Hardison:

      [W]e do not believe that the duty to accommodate requires TWA

      to take steps inconsistent with the otherwise valid agreement.

      Collective bargaining, aimed at effecting workable and enforceable

      agreements between management and labor, lies at the core of our

      national labor policy, and seniority provisions are universally

      included in these contracts. Without a clear and express indication

      from Congress, we cannot agree with Hardison and the EEOC that

      an agreed-upon seniority system must give way when necessary to

      accommodate religious observances.(46)

      Labor...