When it comes to freedom of religious expression in the commercial context, the corporation you work for may have more rights than you do. How is this possible? Well, as you may know, there is a peculiar legal doctrine that regards corporate organizations as “persons.” Although we all know corporations are not exactly “people,” the law treats them as if they were. This is what lawyers call a “legal fiction.” We know it’s not literally true but the law pretends it’s true to make things work. This particular legal fiction is the source of many unjust and inequitable laws. What is worse is that it is so deeply ingrained in our jurisprudence that people no longer question it. They should definitely start.
As it applies to the topic of protections for religious expression, our lawmakers and the United States Supreme Court have begun to take this legal fiction a bit too far. In the landmark case Burwell v. Hobby Lobby, 573 U.S. 682 (2014), the Supreme Court ruled that closely held for-profit corporations could be exempt from laws to which its owners object on religious grounds if there is a less restrictive means of furthering the law’s objective. Id. at 730-31. This ruling turns on an absurdly broad interpretation of a federal law called the Religious Freedom Restoration Act (RFRA). In Hobby Lobby, the Court recognized for the first time that a corporation could hold religious “beliefs.” While the decision does not explicitly state that corporations are protected by the free-exercise of religion clause of the First Amendment of the Constitution, we can someday expect to see that innovation. After all, the other “people” in the country have that right. It’s only fair. Corporations are people too, right?
The Court appears to base its reasoning in Hobby Lobby in part on the idea that by ascribing personal religious freedoms to corporations, the law is protecting the religious freedoms of the corporation’s owners. Id. at 706-07. But what of the rights and beliefs of the workers who make a corporation possible but whom are not privileged to own the company? Are their religious views considered when the company declares the tenets of its deeply held faith? No. Not at all. The owners are presumably the only entities within the corporation that matter, even where the corporation employs thousands of people. What if most of the employees who actually comprise the corporate entity hold entirely different religious beliefs than the owners? Why is a company Christian if its workers are mostly Hindu or vice versa? Can a corporation undergo a religious conversion? Apparently the religious beliefs of a corporation are determined solely by the individual or individuals holding a controlling interest. Surprise plot twist: Court creates more privileges for the wealthy.
This doctrine begs the question: If the owners of the corporation already have all of the individual religious liberties that all other individuals have, why do they get to carry their beliefs into the marketplace and exercise them as a corporate entity as well? The owners of closely held corporations now have an extra set of religious liberties not available to those who do not own corporations. What is the source of this extra set of religious prerogatives?
Hobby Lobby is not a lone anomaly. Apparently bakeries also may have sincerely held religious beliefs that need protection. In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission (2018), a private cake decorating business claimed that it had the right to ignore Colorado’s civil rights laws prohibiting discrimination based on a customer’s sexual orientation because of its sincerely held religious beliefs. The Court did not directly answer the question as to whether a business has a constitutional right to discriminate based on its owner’s religious beliefs. Instead, the Court decided that in Masterpiece, the Colorado law was unenforceable because the Commission expressed an impermissible hostility towards the bakery’s sincerely held religious convictions. Apparently, the fact that bakeries are simply commercial pastry manufactories that cannot hold personal beliefs except by some absurd metaphysical alchemy was not an important fact the Court needed to acknowledge.
In a case currently pending before the Supreme Court, Fulton v. City of Philadelphia, the Supremes must decide whether the Constitution protects a private corporation’s right to discriminate against LGBTQ couples in violation of the law. The plaintiff in Fulton is Catholic Social Services (CSS), an organization that was hired as a contractor for the City of Philadelphia to place foster children in suitable homes. CSS believes it has the right to violate its contract with the City by intentionally discriminating against LGBTQ couples based on its religious beliefs without losing its contract rights. Fulton challenges the long-held doctrine that neutral laws that apply equally to religious and secular parties without singling out people of faith for inferior treatment are constitutional. CSS also challenges the government’s right to regulate its own contractors in the public interest.
While CSS should not be compelled to enter into any contract that will cause it to violate the religious beliefs of its organizers, when it voluntarily seeks to become a government contractor, it should not be exempt from the laws and regulations which govern such contracts. It certainly should not be exempt from the terms of the contract it voluntarily entered! In Fulton, CSS seeks to bend the public laws to conform to its religious beliefs. In the sphere of public commercial activity, what interest is served by ascribing personal religious beliefs to an organization? Rather than asking the question: Does a private religious organization have the right to dictate how the government conducts its business(?); we should rather ask: Does any organization engaged in commerce in a public market have the right to assert personal religious beliefs to begin with? How will the Supreme Court’s new religious conservative majority answer these questions?
So given that our laws are carving out an expanding set of religious liberties for corporate entities in the public marketplace, what rights do the employees of a corporation have to exercise their religious preferences in the workplace? The answer: almost none. While corporate entities controlled by people with religious views may enter the public marketplace and assert their religious prerogatives at the expense of the government and the general public, a worker at a corporation has very few rights to express or protect his or her sincerely held religious beliefs.
Under Title VII of the Civil Rights Act of 1964, employers are required to provide a reasonable accommodation for an employee’s sincerely held religious beliefs or practices, but only if the accommodation needed does not impose an “undue hardship” on the employer. A reasonable religious accommodation is a modification to a company policy or workplace that permits an employee to practice or express his or her religious beliefs. Accommodations often include minor schedule changes, exemption from vaccinations on religious grounds, relaxation of dress codes, or lateral transfers.
The key to understanding the employer’s obligation to accommodate, however, lies in the use of the term “undue hardship.” In this context, “undue hardship” is defined basically as any factor that disrupts the workplace in any way or that has a more than de minimis cost to the company. Thus, if an employer must incur any identifiable cost or endure any inconvenience to its business, it may deny or ignore an employee’s request for religious accommodation.
Thus, while the Supreme Court has carved out vast areas where a private corporation may assert its religious preferences in the public marketplace to defy the laws and regulations enacted by duly elected government bodies in the interest of the public, an employee cannot assert his or her religious preferences at work even in defiance of a private company’s arbitrary and idiosyncratic policies unless the accommodation has no impact on the business whatsoever. Under the RFRA the government must show that a law is the least restrictive means of accomplishing the law’s purpose in order to enforce it in the face of a private company’s claim of religious imposition. If laws passed by democratically enacted bodies must yield to a corporation’s religious preferences, why doesn’t a private company’s policies have to yield to an individual’s religious convictions? Answer: the company has more religious freedom than its individual employees in the American marketplace.
Corporations are commercial entities formed by leave of the government. They are “things” not “people.” How do we know? They are bought and sold legally. People cannot be bought or sold any longer in this country. When corporations are formed they must seek the permission of the state and local government wherein they are located in order to operate. State and federal laws and regulations are specifically enacted to regulate, limit, and control the conduct of these entities. They are not private persons with individual liberties and “beliefs.” Very few corporations are owned and operated by a single individual. Most corporations involve a multitude of individuals to function, each with his or her own sets of beliefs and liberties.
Further, when one or more individuals form a corporation, the primary objective and chief benefit of that formation is to shield the owners from individual liability. In essence, the whole purpose of the corporate form is to legally distinguish the corporate entity from the individuals that control it. The Supreme Court rulings in Hobby Lobby and the ruling urged by the plaintiffs in Fulton would eliminate the very distinction between owners and entity that the law provided when the corporation was formed. These rulings are not just illogical. They are fundamentally inequitable. Let’s start treating corporations as what they are: things.