Employee Survival Guide® - The De Minimis Value of Religious Freedoms At Work

Starting point is 00:00:00 Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you what your employer does not want you to know about, and a lot more. Today we're going to be talking about the right or no right to religious freedom at work. In one of our blog posts in 2020, we addressed the curious legal disparity between individual religious expression in the public commercial marketplace and the religious freedoms recently ascribed to corporations by our courts. We argued in the blog post that when it comes to freedom of religious expression in the

Starting point is 00:00:37 commercial context, quote, the corporation you work for may have more religious rights than you do, end quote. It seems the increase in religious liberties for corporations also coincides with a decrease in the religious freedoms accorded to individual workers. Recently, we have come to represent a number of clients who were terminated by their private employers because they refused to follow the company's COVID-19 vaccine mandate for religious reasons. In the course of litigating these cases, we discovered an inconvenient legal fact.

Starting point is 00:01:12 Our courts have largely interpreted Title VII to provide no protection whatsoever for religious expression in the American workplace. Yes, I said it. There is no such thing as a right to religious accommodations at work under federal law. How can this be? Don't employees have a right to reasonable accommodation of their religious beliefs under Title VII of the 1964 Civil Rights Act? In the words of Jim Carrey, his Grinch character, the answer is wrong-o. The answer is wrong-o. While Title VII has historically provided the bulwark of protection against illegal discrimination in the workplace, when it comes to race, color, sex, national origin, it has become a dead letter in the realm of religious accommodation. How do we know? Well,

Starting point is 00:01:57 we know because the Supreme Court has told us, first, in balancing the importance of individual religious freedom against the employer's commercial need to manage its enterprise as it sees fit, the court tipped the scales heavily towards the employer's preferences. The applicable standard was set forth in the Transworld Airlines v. Hardison case in 1977. In that case, the Supreme Court held that an employer is required to allow a religious accommodation unless doing so would impose, quote, an undue hardship on the business. This initially sounds good, but the Hardison Court went on to define the term undue hardship as any accommodation would cause, quote, more than a de minimis cost for the employer. Therein lies the rub. De minimis is defined by the dictionary to mean, quote, lacking significance or importance Here is our first issue.

Starting point is 00:02:55 The Hardison case essentially says that the right to religious accommodation in the workplace is only worthy of a consideration that is, quote, is only worthy of a consideration that is, quote, lacking significance or importance so minor as to merit disregard, end quote. It should therefore not be surprising when employers disregard the right entirely. It's in the definition itself. Our reading of this case is that we started out by protecting individual religious freedoms at work far too little. De minimis cost is almost no cost whatsoever. Is our individual right to live our work lives as devoted members of our chosen faith really worth almost nothing? The trouble

Starting point is 00:03:34 was compounded in later cases interpreting and applying the incredibly, remarkably, unbelievably low bar and hardison as even lower than it first appeared. As so often occurs, the misguided lower courts have actually followed the presidential logic of the court to an illogical result. While standards of reasonable accommodation established pursuant to other comparable laws like the Americans with Disabilities Act and the Affordable Care Act all require accommodation at a much higher standard,ts interpreting Title VII religious accommodation have forgotten the, quote, reasonable part of the phrase reasonable accommodation. Under those other comparable statutes, an accommodation cannot be refused by an employer

Starting point is 00:04:17 unless it would cause, quote, significant difficulty or expense, end quote. In contrast, the religious accommodation may be denied for pretty much any reason whatsoever. In the world of employment litigation, we're at a point now where it can be denied for no reason whatsoever. In a more recent Supreme Court case, Small v. Memphis Light, Gas, and Water, in 2021, several members of the Supreme Court actually seemed to lament the current state of religious accommodation law under Title VII. The Small case notes, quote, Title VII's right to religious exercise has become the odd man out. Alone among comparable statutory protected civil rights, an employer may dispense with it nearly at a whim, end quote. Essentially, the Supreme Court seems to be noting that some of them are

Starting point is 00:05:02 not happy with how incredibly low the employer's burden is on this issue. However, this is the current state of the law nonetheless. A New York District Court in a case called Privler v. CSX Transportation in 2021 observed the Supreme Court's possible desire to entertain some challenge to the Hardison standard, saying, quote, it is worth noting that several justices of the Supreme Court have recently expressed skepticism regarding Hardison's de minimis cost test and have strongly indicated a preference for revisiting and possibly overturning that aspect of Hardison.

Starting point is 00:05:36 Nonetheless, at this time, the Hardison test and the Second Circuit jurisprudence applying it remains binding on this court, end quote. Surprise plot twist. The Supreme Court justices note that the right to religious accommodation doesn't actually exist. The key phrase is that employers, quote, may dispense with it nearly at a whim, end quote. In the COVID-19 context, this means that an individual who requests an exemption from a corporate vaccine mandate for religious reasons by, for example,

Starting point is 00:06:09 asking to continue to work from home after several years of productive work from home status, can be refused for any reason or no reason, even if the company will not incur any cost whatsoever. All the employer has to say is that it requires 100% in-office work for efficiency or business needs, end quote. The employer can simply decide without having to establish a factual basis for the contention that the accommodation, work from home in this example, will cost something. So apparently, even if the requested accommodation would actually save the company money and increase profits by reducing overhead. The bottom line here is that a right that cannot be enforced is no right at all. The reality, post-Hartison, is that the right to religious accommodations at work cannot be enforced as a right at all. The reality, post-Hartison, is that the right to religious

Starting point is 00:06:45 accommodations at work cannot be enforced as a practical matter. Asserting claims of failure to accommodate religion at work will get you laughed out of any good defense firm you might be negotiating with. The law states that even the most baseless whim of a corporation is more important than an individual's right to live and work in a manner that is consistent with one's worldview and identity. What is at stake here is our right to participate in the economic life of our country and also to live authentically according to our religious beliefs. But what can we do now? First, we should recognize reality. If the right to religious accommodations at work under Title VII is a dead letter, then let's finally just kill it.

Starting point is 00:07:26 Let's acknowledge that there is no such right protected by federal law. There is no point in leading employees to believe they have a right to religious freedom at work when any employer can just deny it without impunity and without the slightest economic reason other than an unproven concern of over-efficiency. Every American should know when a right they thought they enjoyed is discovered to be a shadowy mirage of liberty in the desert of commerce. Instead, let's turn our attention to support enactment of a state and local laws that provide better protections for religious expression at work. Some state and local laws, such as Section 8-107 of the New York City Code, sets out the broad and enforceable obligations employers have to grant reasonable accommodations

Starting point is 00:08:11 for religious employees. These provisions set a completely different and much stricter standard than that imposed by federal law. The most important aspect of the New York City Code provision is that it places the burden of proof to show, quote, undue hardship on the employer. Further, it requires the employer to demonstrate, quote, significant expense or difficulty, end quote. This is a far different standard than that at-whim standard established under the Hardison decision. In our view, the right to religious freedom at work is important. At a minimum, there should be a federal law which protects it to some degree. It cannot and should not be dismissed at anyone's whim. There is no right without a remedy, the saying goes.

Starting point is 00:08:54 Meaning that a right protects you if and only if you have a remedy for its violation. Let's make sure we have both the right and the religious freedom at work and the remedy to prove it. If you'd like more information about this topic, please contact Cary & Associates PC on the web. Thank you for listening and have a great week.

Employee Survival Guide® - The De Minimis Value of Religious Freedoms At Work

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