Restoring Reasonableness to Workplace Religious Accommodations

51 Pages Posted: 3 Jun 2019 Last revised: 10 Jun 2020

See all articles by Dallan Flake

Dallan Flake

Ohio Northern University, Pettit College of Law

Date Written: February 15, 2020

Abstract

When Congress amended Title VII of the Civil Rights Act in 1972 to require employers to reasonably accommodate employees’ religious practices absent undue hardship, it intended to protect employees from being forced to choose between their jobs and their religious beliefs. Yet in the decades since, courts have cut away at this right to the point it is practically nonexistent. Particularly concerning is the growing tendency of courts to read the reasonableness requirement out of Title VII, either by conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it would cause the employer undue hardship, by setting the bar for reasonableness so low it is practically meaningless, or by ignoring the requirement altogether. Consequently, employers today have near carte blanche over whether and how to provide religious accommodations—a power imbalance that often forces employees into the precise dilemma from which Congress sought to protect them.

This Article argues for the restoration of employees’ right to reasonable religious accommodations. It does so by asserting that reasonableness under Title VII is a standalone requirement, separate and distinct from undue hardship, that must be evaluated from the employee’s perspective. An accommodation should be deemed reasonable to the employee only if it (1) fully eliminates the conflict between the employee’s job and religion, (2) does not cause the employee to suffer an adverse employment action, and (3) avoids unnecessarily disadvantaging the employee’s terms or conditions of employment. This conceptualization of reasonableness aligns with Congress’s intent and, if adopted, would help level the playing field between employers and employees in this increasingly critical area of law.

Keywords: Title VII, religious discrimination, religious accommodation, religion, accommodation, accommodate, employment discrimination

Suggested Citation

Flake, Dallan, Restoring Reasonableness to Workplace Religious Accommodations (February 15, 2020). Washington Law Review, Vol. 95, 2020, Available at SSRN: https://ssrn.com/abstract=3387421 or http://dx.doi.org/10.2139/ssrn.3387421

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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