Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees

Abstract

In June 2015, the United State Supreme Court decided EEOC v. Abercrombie & Fitch, its first case involving an employee’s right to religious accommodation in the workplace since 1986. While Abercrombie is the latest in a series of decisions by the Roberts Court that supports religious rights, it is noteworthy since it is the first time that the Supreme Court ruled in favor of a religious employee in a §701(j) case. Under §701(j) of Title VII of the Civil Rights Act of 1964, an employer must reasonably accommodate a religious employee in the workplace if accommodation can be made without undue hardship. This article examines whether there are any unifying principles that can best explain the legal system’s treatment of religion in the workplace prior to the Court’s decision in Abercrombie. While there has been scholarship addressing specific aspects of §701(j), this is the first article to provide a comprehensive analysis of the unifying principles that the federal courts have relied on in interpreting § 701(j). The author concludes that there are three such unifying principles. First, despite the fact that §701(j) specifically mandates differential treatment of religious employees or reasonable accommodation absent undue hardship courts tend to read §701(j) as requiring little more than formal equality. Second, courts tend to view religion as mutable and therefore not entitled to protection. Third, there is a lack of consensus in American society regarding the importance of religion and many courts express skepticism about the importance or validity of religion and are hesitant to mandate accommodation of religious employees. The result of the federal courts’ application of these three principles has been both minimal and inconsistent protection of religious employees in the workplace. The article concludes with a discussion of how the Supreme Court’s decision in Abercrombie is likely to impact future §701(j) cases.

Keywords: employment, religion, religious accommodation