A Hobson's Choice Model for Religious Accommodation

Abstract

Employers are sometimes required by Title VII of the 1964 Civil Rights Act to accommodate the sincere religious practices and observances of their employees. That requirement is often ineffective for employees who seek accommodations. Explanations of that ineffectiveness typically focus on the permissive undue hardship defense; however, the problem is as much a result of an unbounded definition of sincere religious belief, practice, or observance as it is a failing of the undue hardship standard itself. Furthermore, courts have been too solicitous when plaintiffs attempt to turn run-of-the-mill disparate treatment claims into accommodation claims. Instead of amending Title VII to modify the undue burden standard as has been proposed in Congress, the reasonable accommodation requirement can be reinvigorated by utilizing it only in situations where a religious employee is faced with a true Hobson's choice between a sincere religious practice or observance and a religion-neutral, generally applicable work rule or policy. This paper describes the Hobson's Choice Model for religious accommodation claims by arguing for strengthening the sincerity review and strictly separating accommodation from traditional disparate treatment claims and using examples of cases involving religious expression.

Keywords: Title VII, religious accommodation, religious discrimination, employment discrimination, equal employment opportunity

JEL Classification: J71, K31