Federalism, Free Exercise, and Title Vii: Reconsidering Reasonable Accommodation

University of Pennsylvania Journal of Constitutional Law, Vol. 6, Spring 2004

47 Pages Posted: 8 Dec 2003

Abstract

Title VII's reasonable-accommodation provision sits at the crossroads of two controversial and evolving Supreme Court doctrines. The first of these doctrines holds that Congress can only abrogate state-sovereign immunity pursuant to legislation that is "congruent and proportional" to the task of safeguarding constitutional rights. The second holds that the Free Exercise Clause of the First Amendment does not grant a general right to religious accommodation. The combined effect of the Court's recent federalism and free-exercise decisions has been to create considerable uncertainty as to whether Title VII's reasonable-accommodation provision validly abrogates state-sovereign immunity. That uncertainty is exacerbated because the Court has not yet established the precise contours of the congruence-and-proportionality test and has left the door open to free-exercise accommodations in certain, poorly defined circumstances.

This article comprehensively discusses the threat to Title VII's reasonable-accommodation provision and contends that the Court should find the provision fully applicable in private actions against state employers. In addition, this article explains how the Court could use a state-employer challenge to Title VII's reasonable-accommodation provision as a vehicle for clarifying the ambiguities that remain in both its federalism and free-exercise doctrines.

Keywords: Federalism, Sovereign Immunity, Free Exercise, Title VII, Religion, First Amendment

JEL Classification: J70, K00, K10, K19, K30, K31

Suggested Citation

Oleske, Jr., James M., Federalism, Free Exercise, and Title Vii: Reconsidering Reasonable Accommodation. University of Pennsylvania Journal of Constitutional Law, Vol. 6, Spring 2004, Available at SSRN: https://ssrn.com/abstract=476621 or http://dx.doi.org/10.2139/ssrn.476621

James M. Oleske, Jr. (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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