A Civil Right Tested - Part 1: Title Vll and Beyond

Keith Blair May/June 2014
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One of the greatest legislative achievements of the twentieth century was the Civil Rights Act of 1964. Title VII of the bill was enacted in an attempt to eradicate discrimination in the workplace. The main focus of the bill was racial discrimination, but protections were included for color, sex, and national origin. Subsequent to the act’s passage, religion was added as a protected category under Title VII.

Religious discrimination is the category of discrimination that has been the hardest for courts, employers, and employees to deal with. Discrimination that is based on race is relatively easy to spot and, in theory, to remedy. The same is true of discrimination based on sex, national origin, or color. Religion is different. First, employees who sue because of discrimination based on race, color, sex, or national origin are seeking to be treated the same as other employees. They want the ability to get a job, keep a job, and be paid the same as everyone else.

Employees who seek redress for discrimination based on their religion do not want to be treated the same. Instead, they wish not to work a particular day or shift; or they wish to wear a particular piece of religious clothing that does not conform to company policy; or they wish to groom themselves in ways that meet a religious obligation but that conflict with a workplace rule. Employees who complain of religious discrimination want to be treated differently—or “accommodated”—so that they can meet both their religious and work obligations.

Employment discrimination claims that arise on account of religion can generally be classified into three primary areas. The first area of such claims concerns conflicts between work requirements and holy day or Sabbath observances. Employees in these cases wish to have time off in order to observe a day of worship. Next are the dress claims, which involve religious-clothing requirements. Employees in these cases generally seek to wear an article of clothing that does not conform to an employer’s uniform or dress policy. Finally, there are the grooming claims, in which an employee needs to be groomed in a particular manner to meet a religious obligation, but in which the grooming conflicts with an employer’s policy. These cases arise frequently and are sometimes difficult to resolve.

Employers seek to have workplaces that are as free from conflict as possible. Accommodating employees who have religious needs not only affects the religious employee but also affects the nonreligious employee who might be asked to work overtime to cover the religious employee’s absence on a day of worship. It also affects other religious employees who might not have the need for an accommodation but who feel as if the employer is favoring the religion of the employee who has been accommodated.

Despite the perceived challenges that accommodating the needs of religious employees poses, there are benefits to meeting those challenges. The United States is an extremely diverse country. We celebrate the fact that our society is a melting pot. We value the wide variety of thought that our diverse society brings. The conversation in the public square is richer because we include multiple races, colors, gender, and nationalities in the public conversation on the issues of the day. Similarly, the inclusion of the multitude of religions in our society at large enriches society. Inclusion of the views of people of faith adds another bit of diversity to the melting pot.

Just as society benefits from the inclusion of diverse voices and thoughts, the workplace also benefits from diversity. That was recognized by the passage of Title VII. Although the main impetus of the Civil Rights Act was to stop discrimination, part of the push came from people’s realization that the inclusion of all members of society in the workplace benefits all society.

Despite the passage of Title VII and the inclusion of religion as a protected category, religious discrimination in the workplace persists. Between 1997 and 2009, claims of employment discrimination on account of a worker’s religion increased 82 percent, while claims of discrimination based on race or color increased only 16 percent during the same period.1 Similarly, claims of sex discrimination increased only 15 percent,2 and age discrimination increased 55 percent.3 Minority religions became especially vulnerable to discrimination after the September 11, 2001, attacks on the United States. Because of the importance of protecting the rights of religious workers, the accommodation of these workers must be revisited.

The United States Supreme Court has examined workplace religious discrimination in two cases, Trans World Airlines, Inc. v. Hardison4 and Ansonia Board of Education v. Philbrook.5 Those two cases have shaped the law of religious discrimination in employment. Because of those cases, courts view what must be done to accommodate the needs of religious employees through the lens of the employer, not the employee. No employee is entitled to claim an accommodation that would pose a burden on the employer’s ability to run his or her business.6

Rather than looking at the accommodation through the eyes of the employer, however, I would argue that courts and employers should look at the accommodation through the eyes of the employee. The religious-discrimination provision of Title VII is an accommodation to the employee, not to the employer.7 The legislative history of Title VII shows that the drafters of the bill had the needs of the religious employee at the forefront of their efforts.8 The Supreme Court, in Hardison and Philbrook, has shifted the focus of the accommodation incorrectly to the employer rather than to the employee.

Requiring that any accommodation be viewed from the viewpoint of the employee, however, does not mean that the employee gets a free pass. The employee must genuinely work with the employer to ensure that the accommodation enables the employee to meet both his or her religious and professional obligations and that the employer is able to operate its business efficiently and free of conflict.9 The employee might need to mitigate some of the cost of the accommodation.10

The History of Title VII and Its Amendments

Congress enacted the Civil Rights Act of 1964 to combat racial discrimination in the United States.11 The act contained numerous titles that addressed distinct forms of discrimination.12 Title VII of the Civil Rights Act of 1964 was enacted to give workers broad protection from discrimination in employment.13 Title VII provides, in relevant part, that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”14

The Civil Rights Act of 1964 was passed because of the vision of President John F. Kennedy, who pledged to protect workers from discrimination based on race, creed, or ancestry.15 The resulting legislation, passed after President Kennedy’s assassination, provided protection not only for race, creed, or ancestry but for color, religion, or sex.16 Although the final version of Title VII included protection from a broad range of discrimination, Title VII was envisioned as a way to combat discrimination based on race.17 There is little legislative history explaining why religious discrimination was added to Title VII.18

The Equal Employment Opportunity Commission issued guidelines in the 1960s that stated that accommodation of religious employees should be made unless the accommodation would be a “serious inconvenience” to the employer’s business.19 The next year the EEOC modified the guidelines, stating that employers must accommodate employees’ religious needs unless the accommodation would be an undue hardship to the employer.20

The Early History of Religious Accommodation

An example of the treatment that religious discrimination claims received in the courts can be found in Dewey v. Reynolds Metals.21 Dewey was employed by the Reynolds Metals Company as a dye repairman.22 He started his employment with Reynolds in 1951 and became a member of the Faith Reformed Church in 1961.23 Reynolds had collectively bargained an overtime agreement with the labor union representing its employees.24 That agreement required that “all employees shall be obligated to perform all straight time and overtime work required of them by the Company except when an employee has a substantial and justifiable reason for not working.”25

Dewey never volunteered for overtime work on Sundays, his Sabbath.26 Nevertheless, he was scheduled for work on Sunday, November 21, 1965.27 He refused the work assignment because of his religious beliefs, was given a warning, and was told that it was necessary for the company to maintain a seven-day work-week.28 Dewey was subsequently scheduled to work five Sundays between January and August 1966.29 He did not report to work but obtained replacements for those days.30 However, because of his beliefs he declined on August 28, 1966, to obtain a work replacement.31 This continued for the next two Sundays.32 Dewey was subsequently fired for violation of plant rules.33

Dewey sued Reynolds for employment discrimination because of his religious beliefs.34 The district court found that the collective-bargaining decision that mandated the overtime was discriminatory in its impact, and found for Dewey.35 The Sixth Circuit reversed the district court, finding that Reynolds had provided a reasonable accommodation to Dewey by providing a replacement system.36

Congress’s Response

As a result of the decision in Dewey, Senator Jennings Randolph introduced legislation to amend Title VII.37 Randolph was a Seventh Day Baptist and was alarmed at the inconsistent Title VII decisions with respect to religious discrimination.38 Senator Randolph believed that the courts were not adhering to the original intent of the Civil Rights Act of 1964, and his amendment meant to codify what he believed was the original intent.39 Specifically, Senator Randolph wanted to protect Sabbatarians from religious discrimination in the workplace.40 Congress subsequently passed the amendment.41

The amendment tracked the EEOC guidelines that were published in the 1960s in that it codified the requirement that employers provide a reasonable accommodation for the religious needs of their employees. The amendment, however, did not provide guidance as to what constituted a reasonable accommodation except that the accommodation could not pose an undue hardship.

The amendment also modified the definition of religion in the statute. The statute now defined the elements of religion that must be accommodated to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”42

The Supreme Court’s Response—TWA v. Hardison

The Supreme Court was finally able to take up the issue of religious discrimination and Title VII in 1977 in Trans World Airlines, Inc., v. Hardison.43 Larry Hardison was hired as a clerk by Trans World Airlines (TWA).44 Hardison was a clerk in a department that operated 24 hours a day, 365 days a year.45 Subsequent to his hiring, Hardison became a member of the Worldwide Church of God.46 One of the basic tenets of the Worldwide Church of God is the observance of a Sabbath from sundown Friday until sundown Saturday.47 Because of this belief, Hardison informed TWA that he would not be able to work during those times.48 Hardison was initially able to avoid working on his Sabbath.49 However, because of seniority rules that were present in contracts that TWA had collectively bargained with its unions, Hardison was ultimately required to work on Saturdays.50

Hardison was fired on the grounds of insubordination because he would not work on Saturday.51 He sought relief under Title VII, asserting that his discharge constituted religious discrimination, that his union had not adequately represented him in the matter with TWA, and that he had been deprived of his right to exercise his religion.52 The United States District Court ruled in favor of TWA and the union, finding: (1) the union’s seniority rules could not be trumped by the duty to accommodate Hardison; and (2) TWA had reasonably accommodated Hardison and further accommodation would have been an undue hardship.53 The Court of Appeals for the Eighth Circuit reversed the judgment of the district court, finding that TWA had not met its burden to accommodate Hardison.54

The Supreme Court reversed the Eighth Circuit Court of Appeals, finding instead for TWA.55 The Court attempted to analyze the legislative history of Title VII and the EEOC guidelines.56 The Court determined that “the employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines.”57

The Court found that the collectively bargained seniority agreement was not unlawful under Title VII and could not be ignored to accommodate an employee’s religious needs.58 The Court further held that requiring TWA to incur more than a de minimis cost in accommodating Hardison would be an undue hardship under Title VII.59

The EEOC’s Response

The Hardison decision was not well received by some members of Congress.60 Attempts were made to amend Title VII to change “undue hardship” to “severe material hardship.”61 Ultimately, the EEOC held hearings that resulted in new guidelines for religious discrimination, which went into effect in 1980.62 The new guidelines stated that an employer could not claim an undue hardship simply based on a “mere assumption” that additional employees would request and require accommodations if the employer were to accommodate one employee for religious reasons.63 The new guidelines also stated that there was not a set definition of “undue hardship” or “reasonable accommodation,” but that the definition depended on various factors including the size of the employer, the number of employees who needed accommodation, and the employer’s operating costs.64

Given that the EEOC’s guidelines were a response to Hardison, it is no surprise that the guidelines required more accommodation thanHardison.65 The guidelines had suggested accommodations for employees who had work conflicts because of their religious practices.66 In addition to setting guidelines for what a reasonable accommodation would be, the guidelines also stated that an undue hardship could occur only when an employer was able to show an actual hardship, not merely a hypothetical or anticipated hardship.67 Finally, the guidelines defined “religious practices” broadly so as to include moral and ethical beliefs that are sincerely held.68

The broad definition of religion in the guidelines meant that employers no longer were able to question whether a belief or practice was religious or a necessary part of a particular religion. Employers were, however, now allowed to question the sincerity of the employee’s religious belief.69 Courts, however, have not embraced the broad reading of religion contemplated by the EEOC and have not been receptive to offering protection for ethical beliefs that are not associated with a religious tenet.70

  1. See “Race-based Charges, FY 1997-FY 2008,” U.S. Equal Employment Opportunity Comm’n, http://www.eeoc.gov/eeoc/statistics/enforcement/race.cfm (last visited Sept. 19, 2010).
  2. See “Sex-based Charges, FY 1997-FY 2008,” U.S. Equal Employment Opportunity Comm’n, http://www.eeoc.gov/eeoc/statistics/enforcement/sex.cfm (last visited Sept. 19, 2010).
  3. See “Age Discrimination in Employment Act” (includes concurrent charges with Title VII, ADA and EPA), FY 1997-FY 2008, U.S. Equal Employment Opportunity Comm’n, http://www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm (last visited Sept. 19, 2010).
  4. 432 U.S. 63 (1977).
  5. 479 U.S. 60 (1986).
  6. See id. at 68.
  7. See 42 U.S.C. § 2000e(j) (2006).
  8. See infra under “Gongress’s Response.”
  9. Ansonia Bd. Of Educ. v. Philbrook, 479 U.S. at 69.
  10. See, e.g., id. at 80-81 (Stevens, J., concurring).
  11. H.R. Rep. No. 88-914 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2393, 1963 WL 4735, at *3-4.
  12. See 42 U.S.C. §§ 1981 to 2000h-6 (2006).
  13. 42 U.S.C. § 2000e to 2000e-17.
  14. 42 U.S.C. § 2000e-2(a)(1).
  15. See H.R. Rep. No. 88-914, reprinted in 1964 U.S.C.C.A.N. 2391, 2391-92, 1963 WL 4735, at *2.
  16. 42 U.S.C. § 2000e-2(a)(1).
  17. James A. Sonne, The Perils of Universal Accommodation: The Workplace Religious Freedom Act of 2003 and the Affirmative Action of 147,096,000 Souls, Notre Dame L. Rev. 79 (2004): 1023, 1034.
  18. Id.
  19. Debbie N. Kaminer, “Title VII’s Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment,” Berkeley J. Emp. & Lab. L. 21 (2000): 575, 581 (citing 29 C.F.R. § 1605.1 [1968]).
  20. Id.
  21. 429 F.2d 324 (6th Cir. 1970), aff’d by an equally divided court, 402 U.S. 689 (1971), superseded by statute, 42 U.S.C. § 2000e(j) (2006), as recognized in Smith v. Pyro Min. Co., 827 F.2d 1081, 1087 (6th Cir. 1987).
  22. Id. at 329.
  23. Id.
  24. Id. at 327.
  25. Id. at 328. It is arguable that, even absent Title VII, Dewey had a “substantial and justifiable reason for not working” and should not have been required to work overtime on his Sabbath pursuant to the collective bargaining agreement.
  26. Dewey, 429 F.2d at 329.
  27. Id.
  28. Id.
  29. Id.
  30. Id.
  31. Dewey, 429 F.2d at 329. Dewey apparently believed that not only was it a sin for him to work on the Sabbath but also for him to obtain a replacement to work for him. See id. at 330. This belief is not unique to Dewey. See, e.g., Smith v. Pyro Mining Co., 827 F.2d 1081, 1084 (6th Cir. 1987).
  32. Dewey, 429 F.2d at 329.
  33. Id.
  34. Id. at 327.
  35. Id. at 329.
  36. Id. at 331.
  37. Sonne, supra note 17, at 1039.
  38. See id.; Robert A. Caplen, Note, “A Struggle of Biblical Proportions: The Campaign to Enact the Workplace Religious Freedom Act of 2003,” Fla. J.L. & Pub. Pol’y 16 (2005): 579, 584, 585.
  39. See Sonne, supra note 17, at 1039; Caplen, supra note 38, at 584, 585.
  40. Sonne, supra note 17, at 1039 (quoting Cong. Rec. 118 (1972): 705,706 [statement of Sen. Randolph]), Caplen, supra note, at 584, 585.
  41. See 42 U.S.C. § 2000e(j) (2006).
  42. 42 U.S.C. § 2000e(j).
  43. 432 U.S. 63 (1977).
  44. Id. at 66.
  45. Id.
  46. Id. at 67.
  47. Id.
  48. Hardison, 432 U.S. at 67, 68.
  49. Id. at 68.
  50. Id.
  51. Id. at 69.
  52. Id.
  53. Hardison, 432 U.S. at 69, 70.
  54. Id. at 70. Additionally, the court found that Hardison had not directly challenged the district court’s judgment in favor of the union and affirmed without passing on the merits of Hardison’s case. Id.
  55. Id. at 85.
  56. See id. at 71, 72.
  57. Id. at 75.
  58. Hardison, 432 U.S. at 80, 81.
  59. Id. at 84, 85. (“To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”)
  60. Caplen, supra note 38, at 592.
  61. Id.
  62. Id. at 593, 594; H.R. 8670, 95th Cong. (1977).
  63. 29 C.F.R. § 1605.2(c)(1) (1981).
  64. 29 C.F.R. § 1605.2(e)(1).
  65. Kaminer, supra note 19, at 591 and n.108.
  66. 29 C.F.R. § 1605.2(d).
  67. 29 C.F.R. § 1605.2(c)(1).
  68. 29 C.F.R. § 1605.1 (1981): 317, 386.
  69. Karen Engle, “The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII,” Tex. L. Rev. 76 (1997).
  70. Maxine M. Harrington, “The Ever-expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs,” Fla. St. U. L. Rev. 34 (2007); James M. Oleske, Jr., “Federalism, Free Exercise, and Title VII: Reconsidering Reasonable Accommodation,” U. Pa. J. Const. L. 6 (2004): 525, 535, 536.
Article Author: Keith Blair

Keith S. Blair heads the Blair Law Firm in Columbia, Maryland. He has served in the U.S. Department of Justice, where he litigated a number of tax cases. He has also served as director of the Tax Clinic at the University of Baltimore School of Law.