Defining Religious Discrimination in Employment: Has Reasonable Accommodation Survived Hardison?

• Publication year: 1979

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.2SPRING 1979

Defining Religious Discrimination In Employment: Has Reasonable Accommodation Survived Hardison?

Randall J. Borkowski

Because the primary purpose of the Civil Rights Act of 1964(fn1) was the elimination of racial discrimination,(fn2) not surprisingly the Act's legislative history left unclear the congressional intent of also including religion as an illegal ground for employment discrimination under Title VII.(fn3) After 1964, the Equal Employment Opportunity Commission (EEOC)(fn4) and the courts struggled to interpret Title VII's prohibition of religious discrimination.(fn5) In 1972, Congress amended Title VTI to explicitly protect religious conduct, as well as beliefs, provided the employer might "reasonably accommodate" the conduct without "undue hardship" to his business.(fn6) In Trans World Airlines, Inc. v. Hardison,(fn7) however, the United States Supreme Court held that Title VII did not require an employer to accommodate employee Sabbatarian practices conflicting with the provisions of a bona fide seniority system. The Court interpreted the amended Title VII's "accommodation" provision narrowly, holding, under a reverse religious discrimination rationale, that employers need not accommodate religious employees if the accommodation would discriminate against other employees.(fn8) Regrettably, lower courts have oversimplified and inconsistently interpreted Hardison, once again confusing the measure of employers' duty in religious discrimination cases.

Although Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in employment,(fn9) it originally defined neither "religion" nor "religious discrimination."(fn10) Attempting to define these terms, the EEOC issued religious discrimination guidelines(fn11) that specifically require employers "to make reasonable accommodations to the religious needs of employees and prospective employees" unless the accommodation would cause undue hardship to the employer's business.(fn12) The use of the broad phrase "religious needs" indicates the EEOC interpreted the Act as protecting not only religious beliefs, but also religiously based conduct. Additionally, the EEOC omitted a statement in an earlier set of guidelines that allowed employers to establish work schedules regardless of the effect on employees' "religious needs."(fn13) This change indicates that an employer could not rebut a charge of discrimination by mere proof of equal treatment.

A 1971 United States Supreme Court decision, however, reduced the EEOC guidelines' broad protection of religious employees. In Dewey v. Reynolds Metals Co.,(fn14)the Court affirmed without opinion a Sixth Circuit decision questioning the EEOC's interpretation of Title VII.(fn15) The Court of Appeals held that although Title VII prohibited employers from discriminating because of religion,(fn16) it did not require employers to make special concessions to their employees' religious beliefs.(fn17) The court said that the EEOC's accommodation requirement was inconsistent with Congress' intent to prohibit only intentional discrimination.(fn18) Thus, the mere failure to accommodate an employee's "religious needs" was not illegal religious discrimination.(fn19)

Responding directly to Dewey,(fn20) Congress passed section 701(j) of the 1972 amendments to Title VII providing that " '[r]eligion' 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."(fn21) Coupled with Title VH's prohibition of employment discrimination because of religion,(fn22) section 701(j)'s definition of "religion" overrode Dewey by equating, under some circumstances, failure to accommodate religious conduct(fn23) with illegal religious discrimination. Under the amended Title VII, before concluding that an employer has engaged in illegal religious discrimination, a court must complete a three-step process of finding that 1) the employee's conduct or belief is religious in nature, 2) the employer can accommodate the employee's conduct without undue hardship in accord with the statutory definition of religion, and 3) the employer discriminated against the employee because of the employee's religion.

Although section 701(j) indicates Congress considered both conduct and beliefs as forms of protected religion, it gives no guidance to courts making the preliminary decision of whether a given belief or action is religious.(fn24) In determining this question for purposes of Title VII, courts(fn25) have sought guidance from cases defining "religion" as the term is used in the free exercise clause of the first amendment.(fn26) Although courts have required a belief be sincerely held and of a theological character to qualify for first amendment protection,(fn27) courts interpret both requirements broadly(fn28) and seldom find beliefs or conduct nonreligious, if claimed as such by an employee.(fn29)

Even if the employee's conduct qualifies as "religion" under the broad first amendment test, the "reasonable accommodation-undue hardship" standard may exclude such conduct from Title VII protection. Although section 701 (j) initially offers protection for "all aspects of religious observance and practice, as well as belief," it specifically excludes all conduct the employer cannot reasonably accommodate without undue hardship to his business.(fn30) Literally, the statute says any conduct an employer "is unable to reasonably accommodate" is not religion. Actually, the nature of the employer's business cannot change the nature of the employee's conduct. The statute, however, can and does define the limits of Title VII's protection of religious conduct in terms of the effect protecting such conduct would have on the employer.

To illustrate the difference between the literal and actual effect of section 701 (j), consider two employees, a bookkeeper and an assembly line worker. Both employees have joined a new religion requiring them to stand, without working, in prayerful silence for five minute intervals at several prescribed times throughout the day. Such a practice is clearly theological and, assuming the existence of evidence that the employees sincerely believe this requirement, the conduct would qualify as religious conduct under Title VII. The employer could accommodate the bookkeeper simply by tolerating his religious actions and such accommodation probably would not cause any hardship to the employer's business.(fn31) Thus, Title VII protects the bookkeeper's conduct. Yet assuming that the employer could accommodate the assembly line worker only by operating the production line in conformity with the prayer schedule, and that this would cause undue hardship to the employer's business in the form of lost production, then this same conduct is excluded from Title VII protection. Although Title VII does not protect the assembly line worker, his conduct is still as religiously based as the bookkeeper's. Because of the context in which the religious conduct takes place, however, Title VII protects the bookkeeper, but not the assembly line worker, against discrimination based on that conduct.

Even if an employee's conduct fits the first amendment definition of religion and is not excluded from Title VII protection by section 701(j)'s "reasonable accommodation" standard, to win a claim of religious discrimination the plaintiff must prove the employer discriminated because of religion. Courts recognize two forms of discrimination under Title VII, disparate treatment and disparate impact.(fn32) Claims of disparate treatment, resulting when an employer treats an employee, or prospective employee, adversely because of a protected characteristic, rarely have been raised in Title VII religious discrimination cases.(fn33) Almost all claims of religious discrimination under Title VII have involved disparate impact, which occurs when an employer's business practice, neutral on its face, adversely affects employees observing a particular religious faith.(fn34) An employer can defend against a claim of disparate impact discrimination by showing the challenged business practice is a business necessity.(fn35) The business necessity defense, however, will seldom prevent a court from finding illegal religious discrimination. Before reaching the question of discrimination, the court, in applying Title VH's "reasonable accommodation-undue hardship" standard, must first conclude that the employer could modify the business practice in question without undue hardship. The court probably would not consider this same business practice a business necessity.(fn36) Consequently, the business necessity defense will rarely defeat claims of religious discrimination, leaving the issue of whether accommodating the employee will cause the employer "undue hardship" as the only difficult hurdle in most cases.

The United States Supreme Court, in Trans World Airlines, Inc. v. Hardison,(fn37) interpreted the reasonable accommodation requirement of section 701(j) narrowly, holding that the employer, Trans World Airlines (TWA), did not have to accommodate the Sabbath practices of its employee, Hardison.(fn38) Hardison, a member of the Worldwide Church of God, refused to work on his...