Religion in the workplace is best understood through the case law that has interpreted the First Amendment of the Constitution and Title VII of the landmark Civil Rights Act of 1964.
The First Amendment famously begins as follows: ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’ An enormous body of case law has proliferated in the continuing endeavor to interpret and apply the First Amendment, whether the Jeffersonian ‘‘wall of separation’’ between church and state or whether accommodation of religion designed to bring religious values into the otherwise ‘‘naked public square.’’ The classic tension between the antiestablishment and the free exercise clauses of the First Amendment thus overarches the application and contour of religion in the workplace. Perhaps more immediately, Title VII of the Civil Rights Act of 1964—which protects against, and prohibits, discrimination in employment on the basis of religion—gives the role and reality of religion in the workplace more tangible meaning. Title VII also has several exemptions for religious institutions, permitting them to discriminate in their internal employment in favor of those who are members in good standing of the particular religion. For example, Section 702a provides that Title VII’s prohibition of discrimination on the basis of religion ‘‘shall not apply ... to a religious corporation, association, education institution, or society with respect to the employment of individuals of a particular religion to perform work connected with carrying on’’ such activities of the entity. The specific exemption within Title VII for such religious institutions from Title VII’s protection against discrimination on the basis of religion makes membership in good standing of the religion of the particular religiously affiliated institutional employer a ‘‘bona fide occupational qualification’’ in order to obtain, and retain, the employment with the religiously affiliated institutional employer. Most classically, the ‘‘ministerial’’ exemption allows a synagogue, for example, to hire as rabbi an ordained rabbi in good standing, and to reject an academically superbly qualified, armed with several doctorates, who happens to be, for example, alternatively, an atheist, a believer but one who is not an ordained rabbi, or a believing Catholic or Muslim. These classic First Amendment and Title VII precepts and themes can be best understood through elucidation of the salient case law from the Supreme Court over the course of the past several decades.
The U.S. Supreme Court has consistently demonstrated great judicial deference to institutional employers’ interests, at the expense of employees’ right to the free exercise of their religion in the workplace and of their right not to be discriminated against in employment on the basis of their religion. The Supreme Court dramatically subordinated employees’ rights to the prerogatives of institutional employers in a series of important decisions beginning in 1977. As the tenure of Chief Justice Warren Burger evolved and matured, jurisprudence of the Court debilitated First Amendment and Title VII rights of individual employees—rights that theoretically were designed respectively to protect free exercise of religion and to protect against employment discrimination on the basis of religion. After a decade passed, and as Chief Justice William Rehnquist succeeded Warren Burger in 1986, the initially sharply polarized cases of the late 1970s were unproblematically accepted, largely without dissent, by virtually all members of the Court. Several cases that were decided between 1977 and 1987 powerfully exemplify these troubling jurisprudential diminutions of the free exercise and Title VII rights of employees.
Trans World Airlines, Inc. v. Hardison (1977) marked the beginning of this trend in the Court’s debilitation of employees’ Title VII protections against discrimination on the basis of an employee’s religion. Justice Byron White wrote for the seven-member Court majority, with Justices William Brennan and Thurgood Marshall in dissent.
Trans World Airlines (TWA) hired Larry G. Hardison to work in TWA’s Stores Department. The Stores Department was crucial to TWA’s operations and therefore had to operate twenty-four hours a day, every day of the year. TWA employees had to be flexible. Hardison was subject to a seniority system designed through a collective bargaining agreement that TWA had negotiated with the union of the International Association of Machinists and Aerospace Workers. Under the agreement the most senior employees had first choice for job and shift assignments.
In spring 1968, Hardison joined the Worldwide Church of God, which forbade work on the Sabbath (Saturday) and proscribed work on specified religious holidays. Hardison told his supervisor of the problem, which was temporarily resolved by moving Hardison to a different shift. However, Hardison subsequently transferred to a different area, where he did not have enough seniority to avoid working on his Sabbath. Hardison was asked to work, and he refused to report. After a hearing, Hardison was discharged for insubordination for refusing to work his designated shift.
Hardison sued both TWA and the union. He claimed that his discharge constituted unlawful religious discrimination in violation of Title VII of the federal Civil Rights Act of 1964. Hardison also claimed that the union discriminated against him by failing to represent him adequately in his dispute with TWA and by depriving him of his right to exercise his religious beliefs. Hardison’s claim of religious discrimination was based on the 1967 guidelines of the federal Equal Employment Opportunity Commission (EEOC), which required employers ‘‘to make reasonable accommodations to the religious needs of employees whenever such accommodations do not constitute ‘undue hardship.’’’
The Supreme Court held that TWA’s discharge of Hardison did not violate Title VII. The Court explained the requirements mandated by the EEOC guidelines. Under the guidelines an employer must make reasonable accommodations of employees’ religious needs. The EEOC, however, did not suggest what sort of accommodations would be ‘‘unreasonable.’’
The Court opined that TWA made reasonable efforts to accommodate the employee’s religious practices and Sabbath observance as required by Title VII and, in addition, that TWA had done all it reasonably could to accommodate the employee’s religious practices within the bounds of the seniority system in the collective bargaining agreement. Therefore, stated the Court, the duty to accommodate Hardison’s religious observance and refusal to work on Saturday did not require TWA to take steps inconsistent with the seniority system of the valid collective bargaining agreement.
The Court, placing great weight on the seniority system, agreed that religious observances are a reality. However, religiously observant employees cannot always get first choice of shifts. If there are not enough employees to work Saturdays, the seniority system made seniority the determinative factor. If not, then the senior person would be denied his or her rights under the collective bargaining agreement.
Title VII does not stand for the proposition that a company can deprive employees of labor contract rights in order to accommodate other employees’ religious preferences. Neither the employer nor the labor union was required by Title VII to make special exception to the labor contract’s seniority system in order to accommodate the employee’s religious obligations. The Court found that ‘‘to require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an ‘undue hardship’ not required by Title VII.’’ The costs of giving certain employees days off to accommodate their religion— by abandoning the seniority system—would result in preferential treatment of employees on the basis of religion.
The dissent, written by Justice Marshall and joined by Justice Brennan, stated that the majority opinion was a fatal blow to the requirement to accommodate religious practices in the workplace. Notably, the dissent argued that accommodation should not be rejected simply because it involved unequal treatment. Title VII of the federal Civil Rights Act required employers to grant privileges as part of the accommodation process, and a huge carrier like TWA could have borne the burden of the extra costs without undue hardship.
With the Hardison decision, however, the employer’s Title VII duty to reasonably accommodate the religious practices of the observant employee was utterly minimized by the Court. Any accommodation measure that resulted in more than a de minimis cost to the employer was an unreasonable ‘‘undue hardship’’ and thus was not required of the employer by Title VII. This effective judicial relief for the employer from its federal statutory duty to reasonably accommodate the employee’s religious observance, practice, and belief was made even more complete by the Supreme Court in 1986. Chief Justice Rehnquist wrote for the seven-member majority in Ansonia Board of Education v. Philbrook (1986), with only Justices Marshall and Stevens filing opinions concurring in part and dissenting in part.
Philbrook had been employed by the Ansonia School Board since 1962 to teach business classes. In 1968 he was baptized into the Worldwide Church of God. The church required its members to refrain from working during designated holy days, which caused Philbrook to miss six school days per year. Pursuant to the collective bargaining agreement between the school board and the teacher’s union, teachers were granted three days of annual leave for observance of religious holidays, but they could not use any accumulated sick leave for religious observances. Philbrook used the three days granted for religious holidays each year. Since he needed three more days to observe his religion, he asked the school board either to adopt the policy of allowing use of three days for personal business or, in the alternative, to allow him to pay the cost of a substitute and to receive full pay for additional days off for religious observances. The school board rejected Philbrook’s request. Philbrook sued, alleging that the prohibition on the use of ‘‘necessary personal business’’ leave for religious observance violated sections 703(a)(1) and (2) of Title VII. He sought both damages and injunctive relief.
Although the Supreme Court remanded the case for further factual findings and thus did not issue a dispositive decision, it reiterated that the employer met statutory obligations by offering a reasonable accommodation for religious practices, observances, and beliefs to the employee. Significantly, the employer is not required to acquiesce to the employee’s most desired, most beneficial accommodation. As Chief Justice Rehnquist summarized:
Thus, where the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee’s alternative accommodations would result in undue hardship. As Hardison illustrates, the extent of undue hardship on the employer’s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship.
Through these two important decisions the Supreme Court essentially relieved the employer of its statutory duty to reasonably accommodate the religious employee; anything beyond de minimis cost caused by the accommodation will be an ‘‘undue hardship’’ to the employer, which is beyond the employer’s Title VII duty of reasonable accommodation of the observations, practices, and beliefs of the religious employee.
When the employer is a recognized, mainstream religious institution, the Supreme Court has been even more deferential to the employer—again at the expense of the rights of the employees. Indeed, those who advocate strict separation between church and state may see the Court’s accommodation of the religious institutional employer as a violation of the establishment clause of the First Amendment. That, obviously, is not a perspective shared by the Supreme Court, which instead prefers to accommodate the prerogatives of the religiously affiliated institutional employer.
In National Labor Relations Board v. Catholic Bishop of Chicago (1979), Chief Justice Burger, writing for a bare five-member majority of the Court, asserted that the federal National Labor Relations Board (NLRB) did not have jurisdiction to investigate unfair labor practice charges brought against the Catholic bishop of Chicago. The bishop was the employer of the complaining faculty members who were employed in the schools operated under the auspices of the Catholic Church.
Although the prerogatives of this powerful institutional employer could have been constrained if it had been subject to the federal National Labor Relations Act, the Court majority was extremely sensitive to the free exercise and establishment clauses of the First Amendment. Chief Justice Burger summarized: Accordingly, in the absence of a clear expression of Congress’ intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.
In 1974 and 1975, separate representation petitions were filed with the National Labor Relations Board (NLRB) by the faculty union. The Catholic bishop challenged the board’s assertion of jurisdiction. The U.S. Court of Appeals for the Seventh Circuit agreed with the Catholic bishop. The free exercise and establishment clauses of the First Amendment of the Constitution precluded the NLRB from exercising jurisdiction over the schools of the Catholic Church and over the Catholic bishop as the institutional employer.
In his opinion for the majority of the Court, Chief Justice Burger pointed to the legislative history of the National Labor Relations Act, which revealed nothing to indicate that church-operated schools would be within the NLRB’s jurisdiction. The chief justice referred specifically to the debate behind an amendment to the Act, which reflected certain First Amendment guarantees, and argued, ‘‘the absence of an ‘affirmative intention of the Congress clearly expressed’ fortifies our conclusion that Congress did not contemplate that the Board would require church-operated schools to [recognize] unions as bargaining agents for their teachers.’’
Within less than a decade, the increasingly accommodationist Court cavalierly sustained, without dissent, the religiously affiliated institutional employer’s prerogative to terminate—summarily—competent, long-service employees in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987).
Christine J. Amos was an employee of Beehive Clothing Mills, a profit-making company. Frank Mayson was a custodian at the Deseret Gymnasium, a nonprofit facility open to the public. Both enterprises were owned and operated by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints and by the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints. Amos, three other Beehive Clothing Mills employees, and Mayson challenged their individual firings, which were based on their failure to obtain a temple recommend (a standard for determining members’ eligibility to attend a temple). The individuals failed to have the district court declare them to be a class.
The defendant church and presiding bishop argued that a temple recommend was a legitimate requirement for working in what was essentially a religious institution. The Supreme Court felt that there were insufficient findings of fact at the district court regarding the religious or nonreligious character of the activities at Beehive Clothing Mills, but it proceeded to judgment concerning the activities at the Deseret Gymnasium, where Mayson worked. Thus, despite the fact that the employment status of Amos was not at issue, the Court retained Amos’s name in the caption of the case.
Both the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints and the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints were religious entities associated with an unincorporated religious association sometimes called the Mormon Church. Frank Mayson worked at the Deseret Gymnasium for approximately sixteen years, but he was discharged in 1981 because he failed to qualify for a temple recommend. Mayson then brought suit alleging unlawful discrimination on the basis of religion. The church moved to dismiss, maintaining that Section 702 of the federal Civil Rights Act of 1964 shielded it from liability. Mayson argued that the Civil Rights Act should not be construed to permit religious employers to discriminate on religious grounds in employment of persons for obviously nonreligious, secular jobs. Mayson believed that such an interpretation of Section 702 of Title VII would violate the First Amendment, as an establishment of a religion.
Without dissent, the Supreme Court reversed the decision of the lower federal court, which had found in favor of former employee Mayson. The Court examined whether Section 702 of Title VII of the federal Civil Rights Act of 1964—which exempts religious organizations from Title VII’s prohibition of religious discrimination in employment—was unconstitutional in light of the establishment clause of the First Amendment. Specifically, did Section 702’s statutory exemption from Title VII have the primary effect of unconstitutionally advancing religion, in violation of the establishment clause? The Court resolved the question in the negative.
The Court measured the facts and the statute against the establishment clause, according to the classic multipart test set forth in the landmark case of Lemon v. Kurtzman (1971). The Lemon test comprises three parts, or prongs: (1) Does the law at issue serve a ‘‘secular legislative purpose’’? (2) Does the law in question have a ‘‘principal or primary effect that neither advances nor inhibits religion’’? (3) Does the law in question ‘‘impermissibly entangle Church and State’’?
The Court concluded that, under the first prong of the Lemon test, it was permissible for the Congress to attempt to minimize governmental ‘‘interference with the decisionmaking process in religions.’’ Under the second prong, the Court stated that a law is not necessarily unconstitutional simply because it allows churches to advance religion. In order to violate this prong, the Court reasoned that it would be necessary to show that the government itself had advanced religion through its own activities and influence. Finally, under the third prong of the Lemon test, the Court concluded that there was no unconstitutional entanglement raised by Section 702 of Title VII.
Justice O’Connor suggested that a new approach be applied to the Lemon test: The inquiry should be ‘‘whether government’s purpose is to endorse religion and whether the Statute actually conveys a message of endorsement,’’ as judged by an objective observer. This accommodationist thinking has proved increasingly influential among additional members of the Court since the Amos decision in 1987, but has yet to lead to the Court’s repudiation of the Lemon test in its establishment clause jurisprudence.
For the most part, as a result of these salient cases the exercise and observance of religion in the workplace has been made very tenuous as a matter of law. The legal protections of religion, and the rights of religious observer employees in the workplace, are, at best, precarious. On both conceptual and practical levels, labor law doctrine, the First Amendment religion clauses, and Title VII protections against discrimination in employment because of religion have all been debilitated by the Court. The only consistent winners in these cases have been the institutional employers.
DAVID L. GREGORY
References and Further Reading
Cases and Statutes Cited