The majority of religious discrimination cases are brought under a federal law called Title VII of the Civil Rights Act of 1964, Title VII in shorthand. In interpreting Title VII, the U.S. Supreme Court uses a balancing test to decide when discrimination has occurred. In essence, it requires courts to balance the employee’s religious needs against the employer’s business needs.
Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.
Title VII indicates that employers must provide “reasonable accommodations for the religious practices of an employee or prospective employee unless to do so would create undue hardship.”
In the 1977 Supreme Court case Trans World Airlines v. Hardison, in which the Court defined the undue hardship clause in Title VII to mean anything more than a minimal (or “de minimis”) cost, Justice Thurgood Marshall wrote: “A society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religions or their job.” Thus an employer generally has to accommodate a request including reasonably modifying a uniformly applied rule or policy if to do so would meet the religious needs of employees or applicants without causing more than a minimal hardship or cost to the company. How this is applied varies from situation to situation, case to case.
On October 4, 1999, the Supreme Court issued a ruling in a favor of two Muslim police officers who had sued the Newark Police Department because they had been brought up on disciplinary charges for refusing to shave their religiously mandated beards. The Supreme Court ruled that the Newark Police Department had violated the two officers’ first amendment right to religious freedom. This is an indicator of the attitude of the Court, and it provides a precedential basis for legal rulings in favor of employees who claim religious discrimination and seek accommodation.
Since then, any number of employees have successfully sued and won on a number of grounds – need to take time off for religious observance, the right to wear religious garb or facial hair, the right to opt out of holiday celebrations, the right to display scriptural verses in one’s workspace – and the number and variety of cases is increasing year by year.
One key area where complaints are increasing – and which is an excellent example of the type of difficult balancing employers and, often, the courts are called on to perform – are clashes between religious needs and lesbian, gay, bisexual and transgender (LGBT) workplace needs. Let’s take an example:
Company X has its headquarters in a city about to hold its yearly gay pride parade. They’d like to acknowledge the importance of the day for their LGBT employees and put up posters about the parade around the office.
A Christian group takes offense to the posters, which they see as condemning their belief that homosexuality is sinful. They begin an email campaign, using company email, asking colleagues to “pray over” their LGBT coworkers. The emails go to all their co-workers, including those who are members of or are supportive of the LGBT community.
If this were to go to court, here are some of the issues that the court would consider before issuing a decision:
- Do the Christians have a right to express their dismay with a “gay/lesbian lifestyle,” which offends their sincerely held beliefs?
- Do the recipients of the Christian group’s email missives at work have a right to be free of exhortations “to pray over our sinful colleagues”? Given the facts and the objections, could the exhortations be deemed a form of harassment?
- Is the resulting conflict between the two groups causing productivity problems?
- Is a religion-based email campaign a proper use of the company’s email system?
- Is there some other means through which the Christian group can express its convictions without upsetting those who have an equal right to believe otherwise?
- What is the effect of the expression on the organization’s business practices?
This is not a theoretical exercise. It has happened. And it is not rare. “Backlash” cases are occurring all over the United States, in which Christian groups form in opposition to gay rights groups. It’s a classic instance of competing rights that must be balanced. In this particular case, the Christian group was ordered to stop using company email for its private purpose. The employees were, at the same time, offered the option of forming a Christian network on the same basis as all other networks (which included having a business purpose). The group declined.
Under Title VII, the company was required only to offer a reasonable accommodation. If the aggrieved party didn’t accept the offer, it’s not likely that the complaint will be upheld in court. This is especially true when the situation is causing disruption in the workplace and the disruption and its impact on the workplace can be documented.
Workplace Religious Freedom Act
The Workplace Religious Freedom Act (WRFA) is a bill that has been presented to Congress since 2002 but it has not passed. As of this writing, it is currently sitting in Committee.
If enacted, it would amend the Civil Rights Act of 1964 to modify the definitions of “religion” and “undue hardship.” The definition of “religion” would be modified to include all aspects of religious observance, practice, and belief. “Undue hardship,” which is the standard for refusing an accommodation request, would be defined as “an accommodation requiring significant difficulty or expense.” If adopted, these amendments would make it more difficult for an employer to deny a request for religious accommodation and the current requirement to balance different rights would be readjusted.
Although the above legislation has not been passed as of this writing, both WRFA and the Federal Guidelines show that there is increasing interest by legislatures in addressing religion at work. This trend, too, means that employers will benefit by being proactive.