Interactive Religious Accommodations

52 Pages Posted: 28 Dec 2018 Last revised: 28 Feb 2019

See all articles by Dallan Flake

Dallan Flake

Ohio Northern University, Pettit College of Law

Date Written: December 12, 2018

Abstract

This Article argues employers should be required to engage in the same interactive process with employees seeking religious accommodations as they are with employees seeking disability accommodations. The interactive process generally obligates the employer and employee to work together in good faith to determine whether the employee can be reasonably accommodated. Neither the Americans with Disability Act nor Title VII of the Civil Rights Act explicitly mandates the interactive process, yet courts routinely read this requirement into the former statute but not the latter. The practical effect of this distinction is that religious accommodations generally are more difficult to obtain, and employees seeking such accommodations have less control over the process and outcome. Consequently, employees may be forced to choose between their jobs and their religious beliefsā€”the very conundrum Title VII seeks to avoid.

The legal justification for mandating the interactive process for disability accommodations but not religious accommodations is uncompelling, prompting a handful of courts to require the interactive process for both types of accommodations. More courts should follow suit. There is considerable upside, and virtually no downside, to extending the interactive-process requirement to religious accommodations. It benefits employees and employers alike by increasing the odds of a mutually agreeable accommodation, which in turn reduces the risk of litigation. Moreover, good-faith participation in the interactive process better positions a party to prevail when litigation does ensue. The interactive process also benefits courts, not only by lightening dockets through reduced litigation, but also by providing a straightforward, highly adaptable, and familiar framework through which to more effectively evaluate accommodation claims. As religious-accommodation requests increase, both in number and types, the interactive process can help reduce conflict by ensuring employers and employees work together to determine whether a reasonable accommodation is possible.

Keywords: religious accommodations, religious discrimination, employment discrimination, Title VII, interactive process

Suggested Citation

Flake, Dallan, Interactive Religious Accommodations (December 12, 2018). Available at SSRN: https://ssrn.com/abstract=3300165 or http://dx.doi.org/10.2139/ssrn.3300165

Dallan Flake (Contact Author)

Ohio Northern University, Pettit College of Law ( email )

525 S. Main Street
Ada, OH 45810
United States

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