Wednesday, September 9, 2015

When religious liberty clashes with job requirements

By now, you’ve likely heard about the Muslim flight attendant who filed a charge of discrimination with the EEOC, claiming that her employer refused to accommodate her religion by requiring her serve alcohol on flights. There is much to say about this issue, but I do not think I can say it any better than Eugene Volokh did in the Washington Post. I highly recommend his thorough and thoughtful essay.

The practical question, however, is what to do when an employee requests such an accommodation. Consider:

  • A Catholic pharmacist who refuses to sell birth control.
  • A Muslim truck driver who refuses to deliver any pork.
  • A Christian Scientist nurse who refuses a flu vaccine.
  • An Orthodox Jew who refuses to sell any non-Kosher items.
  • An IRS employee with religious objections to working on certain tax-exemption applications.

How you feel about each of these particular cases will depend, in large part, on your view of Religion, or certain religions. Yet, Title VII does not make any such distinctions. Instead, Title VII requires employers to exempt religious employees from generally applicable work rules as a reasonable accommodation, so long as the accommodation won’t impose on the employer an “undue hardship” (something more than a modest cost or burden). If the job can get done without much of a burden, then Title VII requires the employer to provide the accommodation.

Volokh makes six observation about this reasonable-accommodation rule, which are worth repeating:

    1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

    2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task. Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

    3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

    4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

    5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

    6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

In other words, Title VII’s religious accommodation provision is the law of the land, and it does not permit value judgments based on the religion of the person making the request, no matter how different a religion may seem from ours. If the request is based on a sincerely held religious belief, is reasonable, and does not impose an undue hardship, an employer must provide it. Value judgments will result in litigation, in which the employer will likely be on the wrong side of the law. Treat each religion equally, consider each accommodation request on its merits, and err on the side of inclusion.