The G20 Interfaith Forum, a conference recently held in Buenos Aires in the run-up to this year’s G20 2018 summit in Argentina, featured a track on equity and equality in the workplace, including one session focused on respect for today’s increasing diversity of religious beliefs and practices as an aspect of dignified work.
Some hold that employees should leave religious identities — and other personal identification and issues — at the workplace door and that the rules and practices of the workplace should be applied to all without exception. However, another approach is to anticipate problems and seek solutions so that individuals who are bound by their religious faith to engage or avoid participation in certain practices — such as not to work on their Sabbath or holy days, or to be groomed or dressed in a certain way — do not find themselves faced with an unnecessary choice between their faith and their livelihood.
At the session dealing with workplace religious accommodation, panelists shared the premise that dignity in the workplace is essential not only for its own sake, but also for organizational effectiveness. As one of the panel members, I began by asking, “When we discuss religious accommodation, what is the problem we are trying to solve?”
For close to 50 years, the U.S. legal system has recognized a right to religious accommodation as an intrinsic part of antidiscrimination policy. This approach recognizes that workers should be able to earn a living while not being required to leave their religious identity at the door, just as is the case with other fundamental aspects of identity.
Title VII of the Civil Rights Act of 1964 prohibits — with some narrow exceptions —employment decisions, such as hiring and promotions, based on race, color, religion, sex and national origin. But soon after the 1964 act’s passage, the question arose whether the prohibition on religious discrimination only provided for “formal equality,” in which solely discriminatory treatment on the basis of status — as an African American, Latino, Baptist, woman or Slovenian — was covered. Advocates for religious accommodation argued that this was a false notion of equality, as refusal to accommodate a religious practice, even when the rule in question had not been adopted and was not being applied for discriminatory purposes, would nevertheless have the practical effect of barring people of certain faiths from the workplace.
In 1972, Congress addressed this question by amending the 1964 act to define, as a form of religious discrimination, the failure of an employer to provide a reasonable accommodation of a religious practice or belief, unless doing so would impose an undue hardship. While a reasonable sounding standard on its face, the U.S. courts — following the lead of the 1977 U.S. Supreme Court decision in Trans World Airlines v. Hardison — have generally read this duty of accommodation in an unduly crabbed fashion by narrowly interpreting the terms “reasonable accommodation” and “undue hardship.”
One might think that to be “reasonable” an accommodation should resolve the conflict. For instance, it ought not to be considered a reasonable accommodation to tell a Sabbath-observant employee that he/she only must work one Sabbath out of four, based on a system of neutral shift allocations. Yet there are cases so holding, even though that means that within a month the employee could be out of a job.
Even after a reasonable accommodation is identified, the 1972 amendment still does not require the employer to provide such an accommodation if to do so would impose an undue hardship, such as being unduly costly or in some other way antithetical to the employer’s operations. Unfortunately, the courts have interpreted “undue hardship” to mean anything more than a de minimis difficulty or expense. This minimal standard stands in stark contrast to provisions of the Americans with Disabilities Act regarding accommodation, which define undue hardship as significant difficulty and expense.
Under the inadequate standard in the 1972 amendment, as interpreted, one court found that an employer could place the onus on an employee to find a fellow employee with whom he or she could swap shifts, apparently because anything more would be a more than de minimis difficulty and expense — even though it is the employer who has the information and resources to more effectively find such a swap. Providing an exemption from employer standards for grooming and dress has also been found by courts to be an undue hardship where the employer asserts that an employee’s grooming or dress is inconsistent with the “image” that the employer wishes to project. (Here, it should be noted, the Supreme Court’s 2015 decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch, while decided on other grounds, strongly suggests that inconsistency with corporate image as a basis to find undue hardship is destined for the ash heap of judicial history.)
To be sure, employees seeking religious accommodation do not always lose their cases. Moreover, the American standard, whatever its flaws, stands in marked contrast to European law, which as a rule denies a right to exemptions from generally applicable law and workplace rules — with the French principle of laïcité the most rigorous (some would say, extreme) application of that approach.
For those seeking to strengthen the law of religious accommodation, whether in the United States or abroad, there are rising trends that present ongoing challenges. The very concept of accommodation has come into disfavor in some quarters, after a period in which the principle seemed to be gaining acceptance, at least in this country. The concept of “commandness,” that is the belief that there are practices and observances that simply must be kept because “God said so,” is foreign to modern sensibilities that frame the thinking of even the avowedly religious. The idea has grown that religion is volitional, that it is a matter of choice — so why not ask a worker to compromise, to go along, to get along, even to find a different, less problematic faith? Why not, for instance, fast on another day if the date on which Yom Kippur, the Jewish Day of Atonement, falls is inconvenient?
It is ironic that, even as we have come to understand that certain aspects of identity that we once thought to be a matter of choice are rather an essential and immutable part of identity, many no longer understand what the framers of the U.S. Constitution understood so well — for the faithful, religious creed is not only deeply held, it is a fundamental part of identity. It is indeed so fundamental that the provisions of the Constitution and Bill of Rights dealing with religious freedom were framed as they were because of the history of wars fought in the name of religion — a phenomenon that is, alas, not a thing of the past.
Resistance to religious accommodation is also associated with other phenomena of our times: The growth of the 24 hour-a-day/seven day-a-week economy; increasing diversity, which may lead to more employees with customs and traditions that clash with workplace parameters; animosity and bigotry toward some religious groups, especially since Sept. 11, 2001; and a growing societal emphasis on material values over the spiritual.
And, last but not least, there is resistance to accommodation even for practices areas that most would not find controversial (dress, grooming, holy time) because of a growing and legitimate concern that amplifying protections for religious accommodation could enable harm to third parties, such as fellow employees and customers — as when employees seek accommodations that will allow them to express distasteful or derogatory views of LGBTQ people in the workplace, deny access to legal goods and services (such as contraceptives) to customers, or engage in status discrimination against members of protected groups. Unless addressed and mitigated, these concerns have stalled, and will continue to stall, efforts to enhance the strength of religious accommodation standards, if not to their being rolled back.
If these last concerns sound similar to the disputes underlying the application of the Religious Freedom Restoration Act, as in the Hobby Lobby and Masterpiece Cakeshop cases, that should be no surprise — those cases also presented a conflict between the fundamental values of combating discrimination and protecting religious freedom, which are both core to the dignity of individuals and the communities to which they belong.
Religious accommodation is a crucial element in assuring a dignified future for all, regardless of faith — even as care must be taken to assure that religious accommodation is not a mechanism by which the dignity of other workers is diminished. To that end, the Religious Freedom Center, in collaboration with the Religious Freedom & Business Foundation, has developed executive training seminars to help companies deal with these issues, information on which can be found at www.religiousfreedomcenter.org/programs/business-leaders/executive-seminars-training. In addition, there are other steps governments and civil society can take, some of which were discussed at the G20 Interfaith Forum “Dignified Work” session. As to those steps, as well as for a discussion of the larger themes with which the G20 Interfaith Forum dealt, watch this space.
Richard Foltin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. His email address is: [email protected].