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By Chris Avcollie

In one of my blogs in 2020, I addressed the curious legal disparity between individual religious expression in the public commercial marketplace and the religious freedoms recently ascribed to corporations by our courts. I argued there that when it comes to freedom of religious expression in the commercial context, “…the corporation you work for may have more religious rights than you do.” (Read More Here) Further evidence of my thesis has come to light. Or, rather, I have finally realized what many of my colleagues have known for a very long time. It seems the increase in religious liberties for corporations also coincides with a decrease in the religious freedoms accorded individual workers.

No Right to Religious Accommodation Under Title VII

Recently in my practice as an employment lawyer I have come to represent a number of clients who were terminated by their private employers (I distinguish here between public and private sector workers because public sector workers may have more Constitutional protections for their religious beliefs) because they refused to follow the company’s COVID-19 vaccine mandate for religious reasons. In the course of litigating these cases I discovered an inconvenient legal fact. Our courts have largely interpreted Title VII to provide no protection whatsoever for religious expression in the American workplace. Yes, I said it. There is no such thing as a right to religious accommodations at work under federal law.  

How can this be? Don’t employees have a right to a reasonable accommodation of their religious beliefs under Title VII? In the words of Jim Carey’s Grinch, the answer is: “Wrong-o!” While Title VII has historically provided the bulwark of protection against illegal discrimination in the workplace when it comes to race, color, sex, and national origin, it has become a dead letter in the realm of religious accommodations. How do we know?

Well, we know because the Supreme Court has told us. First, in balancing the importance of individual religious freedom against the employer’s commercial need to manage its enterprise as it sees fit, the Court tipped the scales heavily towards the employer’s preferences. The applicable standard was set forth in Trans World Airlines, Inc. v. Hardison (1977). In that case the Court held that an employer is required to allow a religious accommodation unless doing so would impose an “undue hardship” on the business. This initially sounds good, but the Hardison Court went on to define the term “undue hardship” as any accommodation that would cause, “more than a de minimis cost” for the employer. Therein lies the rub. De minimis is defined by Merriam-Webster to mean: “Lacking significance or importance: so minor as to merit disregard.”

Lacking significance or importance: so minor as to merit disregard

Here is my first issue. The Hardison case essentially says the right to religious accommodation in the workplace is only worthy of consideration that is: “Lacking significance or importance: so minor as to merit disregard.” It should therefore not be surprising when employers disregard the right entirely. Its in the definition itself! My reading of this case is that we started out by protecting individual religious freedoms at work far too little. De minimis cost is almost no cost whatsoever! Is our individual right to live our work lives as devoted members of our chosen faith really worth almost nothing? In a country founded in part on principles of religious freedom? Apparently so.  

Other Federal Statutes Provide Higher Standards of Proof

The trouble was compounded in later cases interpreting and applying the incredibly, remarkably, unbelievably low bar in Hardison as even lower (for the employer denying religious accommodations) than it first appeared. As so often occurs, the misguided lower courts have actually followed the precedential logic of the Court to an illogical result.  While standards of reasonable accommodation established pursuant to other comparable laws like the Americans With Disabilities Act and the Affordable Care Act all require accommodation at a much higher standard, courts interpreting Title VII religious accommodations have forgotten the “reasonable” part of the phrase “reasonable accommodations.” Under those other comparable statutes, an accommodation cannot be refused by an employer unless it would cause, “significant difficulty or expense.”  In contrast, the religious accommodation may be denied for pretty much any reason whatsoever. In the world of employment litigation, we are at a point now where it can be denied for no reason whatsoever!  

Supreme Court Is Troubled By Its’ Own Precedents

In a more recent Supreme Court case Small v. Memphis Light, Gas & Water (2021), several members of the Supreme Court actually seemed to lament the current state of religious accommodation law under Title VII. The Small case notes:  “Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim.”  Id. Essentially, the Supreme Court seems to be noting that some of them are not happy with how incredibly low the employer’s burden is on this issue. However, this is the current state of the law nonetheless.   

A New York District Court in a case called Privler v. CSX Transportation Inc. (2021) observed the Supreme Court’s possible desire to entertain some challenge to the Hardison standard, saying, “It is worth noting that several justices of the Supreme Court have recently expressed skepticism regarding Hardison’s ‘de minimis cost’ test, and have strongly indicated a preference for revisiting, and possibly overturning, that aspect of Hardison. Nonetheless, at this time, the Hardison test, and the Second Circuit jurisprudence applying it, remains binding on this Court.”

Right To Religious Accommodation Doesn’t Exist

Surprise plot twist: Supreme Court Justices note that the right to religious accommodations doesn’t actually exist! The key phrase is that employers: “may dispense with it nearly at whim.” In the COVID 19 context that means that an individual who requests an exemption from a corporate vaccine mandate for religious reasons by, for example, asking to continue to work from home after several years of productive work from home status, can be refused for any reason or no reason, even if the company will not incur any cost whatsoever! All the employer has to say is that it requires 100% in office work for “efficiency” or “business needs.” The employer can simply decide without having to establish a factual basis for the contention that the accommodation (work from home in this example) will cost something.  This is so apparently even if the requested accommodation would actually save the company money and increase profits by reducing overhead!

The bottom line here is that a right that cannot be enforced is no right at all. The reality post-Hardison is that the right to religious accommodations at work cannot be enforced as a practical matter. Asserting claims of failure to accommodate religion at work will get you laughed out of any good defense firm you might be negotiating with. The law states that even the most baseless “whim” of a corporation is more important than an individual’s right to live and work in a manner that is consistent with one’s world view and identity. What is at stake here is our right to participate in the economic life of our country and to also live authentically according to our beliefs.

The Fundamental Right That Needs Fixing

But what can we do now? First, we should recognize reality. If the right to religious accommodations at work under Title VII is a dead letter then let’s finally kill it. Let’s acknowledge that there is no such right protected by federal law. All of the cases that seem to  hold to the contrary are aberrative. There is no point in leading employees to believe they have a right to religious freedom at work when any employer can just deny it with impunity and without the slightest economic reason other than an unproven concern over “efficiency.” Every American should know when a right they thought they enjoyed is discovered to be a shadowy mirage of liberty in the desert of commerce.  

Instead, let’s turn our attention to support enactment of state and local laws that provide better protections for religious expression at work. Some state and local laws such as Section 8-107(3), of the New York City, New York Code, sets out the broad and enforceable obligations employers have to grant reasonable accommodations for religious employees. These provisions set a completely different and much stricter standard than that imposed by federal law. The most important aspect of the NYC Code provision is that it places the burden of proof to show “undue hardship” on the employer. Further it requires the employer to demonstrate “significant expense or difficulty.” This is a far different standard than the “at whim” standard established under Hardison.    

In my view the right to religious freedom in the workplace is important. At a minimum there should be a federal law which protects it to some degree. It cannot and should not be dismissed at anyone’s “whim.” There is a Latin phrase first year law students learn: “Ubi jus ibi remedium.”  It means there is “no right without a remedy” – meaning that a right protects you if and only if you have a remedy for its violation. Let’s make sure we have both the right to religious freedom at work and the remedy to prove it. 

For more information about this topic, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

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