Toward an Integrated Disparate Treatment and Accommodation Framework for Title VII Religion Cases
31 Pages Posted: 7 Feb 2007 Last revised: 23 Aug 2011
Date Written: October 1, 2006
As enacted in 1964, Title VII prohibited discrimination on the basis of religion, but it soon became obvious that for meaningful protection of religious belief in the American workplace, accommodation of religious practice was necessary as well. The EEOC formulated regulations defining lack of accommodation as a form of religious discrimination, but that view was rejected by the courts. In response, Congress in 1972 amended Title VII to require that even employers without religious bias must reasonably accommodate employee religious practices.
Since 1972 virtually all courts and commentators have treated Title VII religion claims as either disparate treatment or accommodation cases. Seldom do courts or scholars consider the confluence of the two. What happens, though, if an accommodation case is suffused with bias or even hostility to the religious objector? Does the case follow the traditional bias framework or does it follow the accommodation framework or does it follow both? Since most courts place cases into one framework or another, it is hard to know how prevalent mixed bias/accommodation cases are. The erroneous classification of a Title VII religion case can have negative consequences for plaintiffs in individual cases and for the general development of Title VII religion case law.
This essay explores the interrelationship between accommodation and discrimination in Title VII religion cases. The essay begins with discussion and analysis of three typical Title VII mixed disparate treatment/ accommodation cases, demonstrating how malleable and ill-defined the lines between Title VII disparate treatment and accommodation cases can be. These cases show that it is likely that a good number of Title VII religion cases straddle the two frameworks, and that some number of those cases that do straddle are unnecessarily pigeonholed into one framework or another.
The essay then analyzes the legislative history and the EEOC regulations of the 1964 statute and the 1972 accommodation amendments to glean congressional and administrative guidance that might prove useful in reconciling the two frameworks. That analysis reveals that a critical distinction between the two frameworks is employer neutrality in the workplace as to the religious beliefs of its employees. This finding allows two observations. The first, that employers cannot defend disparate treatment religious discrimination using accommodation framework defenses. The second, that an alternative, more integrated approach to Title VII religion cases, one requiring courts (judges or juries) always to determine first whether the employer is neutral toward religion in the workplace, allows religious discrimination and accommodation frameworks to be merged in a meaningful way, minimizing the chance of erroneous framework classification decisions by judges and attorneys. The essay concludes that use of an integrated framework will enhance the uniformity and coherence of Title VII religion case doctrine.
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