Religious Employers and Labor Law: Bargaining in Good Faith?

53 Pages Posted: 19 Jul 2017

Date Written: September 1, 2016


This Article explores an important question that follows in the wake of last Term’s decision in Hobby Lobby v. Burwell: When employee rights under the National Labor Relations Act (NLRA) and employer religious commitments conflict, which will have priority? This is a surprisingly difficult question to which multiple statutory regimes arguably apply. First, there is the NLRA itself. The NLRA does not exempt religious employers on its face, but the Supreme Court nonetheless construed it to exclude certain religious employers in NLRB v. Catholic Bishop. Catholic Bishop is remarkable: as an exercise of constitutional avoidance the Court adopted an implausible reading of the NLRA in order to avoid an improbable constitutional question. In addition, the decision’s vague language has proven difficult to apply to new contexts, leading to pervasive conflicts between the National Labor Relations Board and the circuit courts over its meaning. Yet, despite these many flaws, Catholic Bishop has held fast, even as the law of religious exercise has overtaken it.

There is also the Religious Freedom Restoration Act (RFRA), which allows exemptions from federal laws that conflict with religious adherents’ sincere beliefs, unless there is no less restrictive means of satisfying a compelling government interest. But RFRA’s application leaves many unanswered questions in the labor law context: Does the NLRA qualify as the least restrictive means of satisfying a compelling government interest? Should accommodations be available even if they shift costs onto employees? And if so, how could accommodations be structured to protect religious adherents while minimizing burdens on others?

This Article offers answers to the complex questions associated with statutory religious accommodation claims arising in the labor law context. First, it proposes a new framework for courts to interpret legislative enactments that arguably override constitutional avoidance decisions, like Catholic Bishop. Applying this principle, it argues that courts should treat RFRA - a statute that makes clear Congress’s preferred method of accommodating religious objectors to labor law - as having legislatively overturned Catholic Bishop. Second, the Article analyzes the thorny questions that will arise when courts apply RFRA in the NLRA context. Ultimately, the Article concludes that the NLRA constitutes the least restrictive means of furthering a compelling government interest. However, recognizing that some appellate courts may reach the opposite conclusion, it also presents a model of limited accommodations for religious employers that are carefully shaped to minimize burdens on employees.

Keywords: NLRA, RFRA, Pacific Lutheran, Hobby Lobby, collective bargaining, statutory interpretation, constitutional avoidance

Suggested Citation

Garden, Charlotte, Religious Employers and Labor Law: Bargaining in Good Faith? (September 1, 2016). Boston University Law Review, Vol. 96, No. 3, 2016, Seattle University School of Law Research Paper No. 17-15, Available at SSRN:

Charlotte Garden (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA 98122-1090
United States

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