Document Type

Article

Publication Date

2024

Abstract

Given the deep political divide in the U.S. and the emotional response to the abortion issue, workplaces may become hostile environments that harm workers based on their pro- or anti-abortion views or their out-of-work activism. Besides hostile environments, some workers may suffer workplace discipline based on their speech at work or refusals to engage in certain job requirements. Disciplining employees for engaging in workplace speech or refusal to perform parts of their jobs may violate workers’ rights under Title VII of the Civil Rights Act of 1964, which requires that employers grant religious accommodations in the workplace if doing so does not create an undue hardship on the employer’s business.

Plaintiffs increasingly sue their former employers for failure to grant them religious accommodations. There are four main types of religious accommodation: permission to wear clothing that otherwise would violate dress/appearance codes, scheduling changes that permit the employee to respect their sabbath, freedom to express religious views on controversial topics such as abortion, and excuse from job responsibilities that are offensive to the employee’s religious views. The expression and job responsibilities cases, which are often brought by non-profit religious rights organizations, are part of a larger move for greater religious rights in the U.S.

The United States Supreme Court recently decided Groff v. DeJoy, a scheduling religious accommodation case that ostensibly has nothing to do with abortion, but that may have a major effect on cases brought by religious employees whose opposition to abortion and contraception has interfered with their ability to do and/or keep their jobs.

This article analyzes the four most common employee requests for accommodations and discusses the current law of religious accommodation as refined in Groff v. DeJoy. It suggests ways to analyze free expression cases to protect all employees and the business, and it concludes that where employees request permission to avoid certain job duties, courts should adopt principles from the Americans with Disabilities Act (ADA). If courts do not adopt these suggestions, Congress should amend Title VII by explicitly defining the terms “reasonable accommodations” and “undue hardship” and by clarifying whether an employer can prove “undue hardship” by demonstrating that the job duty the religious employee seeks to avoid is an “essential function” of the particular job.

Publication Citation

27 Emp. Rts. & Emp. Pol’y J. 276 (2024).

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