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Reasonable Accommodation as Defined by the Civil Rights Act 1964

Info: 20585 words (82 pages) Dissertation
Published: 26th Mar 2021

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Tagged: LawHuman Rights Law

I.  Introduction

“[T]hat fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.”[1]  Justice Antonin Scalia

During the late 1700’s, dozens of Baptists in Virginia were stoned, whipped or imprisoned for preaching violations.[2]  In other cases, substantial fines were assessed against farmers who provided access to their land to host religious meetings that were not properly registered.[3]  Monetary penalties were harsh on their own, but, what may be easy to ignore is the significant economic consequences to the livelihoods of people who earned their living through farming, a way of life that produced little cash and required constant maintenance of livestock and land.[4]

Irish immigrants searching for employment a century later in the North experienced a discrimination of a different kind when they were met with signs declaring, “NINA.”[5]  The message—No Irish Need Apply—reflected the clear and pervasive circumstance of anti-Catholic prejudice against many American Protestants.  Protestant prejudice did not extend only to Irish Catholics.  In 1916, Louis Brandeis became the first Jewish member of the U.S. Supreme Court. [6]  His confirmation marked an extraordinary milestone in Jewish American history.  However, the treatment he endured from his colleague James Clark McReynolds, who refused to sit beside Justice Brandeis and would exit the room when Brandeis spoke in chamber, marred this great achievement.[7]

Examples of religious intolerance during the infancy of this Nation are numerous.  Simply that they occurred is not what makes them noteworthy.  The very notion of tolerance is a cultural, theological and political accomplishment infused in the DNA of this country.[8]  What makes these examples so remarkable today is how they illustrate the journey, and its challenges, to adhere to a philosophy of religious tolerance in a Nation that reveres and seeks to protect diversity of belief, while simultaneously protecting the interests of individualism and industry.  We are certainly a more perfect union today than over two hundred years past.  How did this come about?  What fostered this spirit of religious tolerance and its application to the workplace?

One possible answer is that this Nation’s founders planted the seeds of religious tolerance in the rich fertile ground of the Constitution and throughout the seasons, the institutions of this nation have cultivated its growth.  As evidence to this point, one may start with observing the Constitutional clause which offers that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”[9]  One may then observe how Congress, through enactment of the Civil Rights Act of 1964, extended the ban on religious tests into the private sector.[10]  Title VII of that Act prohibits discrimination against any person by employers because of that individual’s religion.”[11]

A second possible answer to the question of growing religious tolerance is perhaps of a more practical nature.  As the economy and industry have become more complex, people and perspectives have become more diverse—as such, a need to strike an appropriate balance between the interest of the employer and the rights of the employee have compelled legislative action.[12]  This evolution reflects an appreciation and awareness of the coercive nature of the “master-servant” relationship[13] and a recognition of the need to provide employee protections against abuses of that power which may unreasonably discriminate against persons based on a fundamental constitutional right.[14]

Congress enacted the Civil Rights Act of 1964 to protect minority groups from  discrimination in the workplace[15] based on race, color, sex, national origin, or religion.[16]  The original statutory language did not address employer duties as it relates to religious accommodation to support the needs of employees.[17]  The EEOC first issued guidelines regarding reasonable accommodation in 1966,[18] amended in 1967, requiring workplace accommodation for religious belief, unless it imposed an undue hardship on the employer.[19]  However, determining what qualifies as an undue hardship led to inconsistencies in Title VII litigation, and many jurisdictions held that the reasonable accommodation provision did not create a cause of action for discrimination.[20]

In 1972, Congress amended the statutory definition of “religion” to require that employers “reasonably accommodate” an employee’s religious beliefs and practices unless doing so would create an “undue hardship.”[21]  The logic behind Title VII’s reasonable accommodation requirement is relatively simple to understand.  Unlike the other classes afforded Title VII protection, religious protections serve to protect Constitutionally protected acts—the purpose is to protect against discrimination, to the extent that is does unduly burden the employer, not to provide privilege to religious belief.[22]  However, the 1972 amendment did not provide definition or guidance as to what “reasonable accommodation” or “undue hardship” were meant to encompass, leaving it to the courts to define.[23]

In its 1977 decision in TWA v. Hardison,[24] the Supreme Court determined that when an accommodation requested imposes more than a “de minimis cost” on an employer an “undue burden” exists.[25]  This means that employers can refuse to grant religious accommodations when to do so may impose a cost or disruption to the operation of the business.  As the Court explained in Hardison, to avoid liability, an employer must show that a requested accommodation would have resulted in “additional costs.”[26]  This standard acknowledges the need for reasonable, minor, accommodations while respecting the purpose of the business and its commercial aims.

If tolerance is to make sense, have any real bite, then it must be accompanied by a willingness to accommodate the myriad beliefs and practices that make both religious and non-religious people who they are, balanced against the practical needs of businesses,[27] and respecting the limitations of the First Amendment with respect to the Establishment of Religion.   The pragmatic balance between reasonable accommodation and undue hardship has become increasingly imbalanced in recent years through newly created conflicting rights[28] as the courts have expanded the bounds of the Religious Freedom Restoration Act (RFRA) to employment matters, opening the door to religious accommodation claims pitting employee rights under Title VII against employer rights under RFRA,[29] and ironically undermining the spirit of religious tolerance which served as the catalyst behind these statutory protections, driven by growing intolerance of an increasingly diverse society in pursuit of secular based protections.[30]

This paper examines the evolution of reasonable accommodations under Title VII of the Civil Rights Act of 1964 and argues that the Title VII undue burden de minimis standard results in just outcomes evidenced by the relative similarity to outcomes seen in other Title VII claims; details the rise of RFRA from a universally embraced religious liberty protection to an opportunistic prophylactic measure to insulate so-called believers from anti-discrimination laws enacted to protect groups they find objectionable; explores the potential nullifying impact RFRA poses to Title VII protections; and argues that the Court expansion of the RFRA scope and application in the employment context violates the Establishment Clause.


Ii. Title Vii ‘Reasonable’ Accommodations

Prior to Title VII of the Civil Rights Act of 1964, the right of employees to be protected against religious discrimination differed radically depending upon whether their employer was a government entity or a private actor.  Government employees—whether federal, state, or local—enjoy some protection from discriminatory employment practices under the First Amendment.[31]  Employees of non-governmental entities do not because the state-action requirement that triggers constitutional protections is not met.  Thus, prior to Title VII and absent a contract to the contrary, private-sector employers were generally subject only to the strictures of the at-will employment doctrine, which holds that an employee may be fired at any time for any reason or even for no reason at all.[32]  This meant that at-will employees had virtually no legal means of challenging religiously discriminatory practices in the workplace.


A. The Evolution Of The De Minimis Undue Burden Standard

Congress’s first attempt to address the problem of religious discrimination in the private marketplace came with Title VII of the Civil Rights Act of 1964.[33]  Although the primary target of Title VII was the elimination of racial discrimination,  it was more broadly drafted to prohibit employment discrimination on the basis of a person’s “race, color, religion, sex, or national origin.”[34]  The act originally treated religion exactly the same as the other traits or classifications that trigger its protections.  The statute thus prohibited religious discrimination, but it did not expressly create an affirmative duty for employers to accommodate the religious beliefs or practices of their employees. [35]  The Equal Employment Opportunity Commission nevertheless issued guidelines that interpreted Title VII as requiring employers to affirmatively accommodate an employee’s religious needs,[36] prompting litigation challenging the EEOC’s guidelines.[37]

In part “to resolve [this question] by legislation,”[38] Congress acted in 1972 to amend Title VII’s statutory definition of religion in section 701(j) as follows:

The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.[39]

The amended definition thus creates an affirmative duty to accommodate.  It does not, however, offer substantive guidance for determining what is a “reasonable accommodation” and what is an “undue hardship.”[40]  This question also became the subject of litigation and found its way to the Supreme Court in 1977.

Trans World Airlines, Inc. v. Hardison[41] involved a factual situation that is typical in religious accommodation cases.[42]  Hardison, a member of the Worldwide Church of God, worked as a clerk for TWA and sought Saturdays off in order to observe the Sabbath recognized by his faith.[43]  Initially, Hardison was allowed to participate in a temporary shift-swap. Soon after he received an intra-company transfer that resulted in the loss of the seniority rights he had enjoyed under the terms of a collective bargaining agreement.  This meant that he was no longer able to bid for and easily obtain shifts allowing him to be off on Saturdays.[44]  Hardison would not compromise his religious beliefs, however, and eventually TWA discharged him after he refused to show up for scheduled Saturday shifts.[45]

Hardison brought suit against TWA and the union, alleging religious discrimination in violation of Title VII.  The district court ruled in favor of the defendants.  The court found that the reasonable accommodation requirement of section 701(j) did not require either TWA or the union to violate its seniority system in order to accommodate Hardison’s religious beliefs.[46]  On appeal, the Court of Appeals for the Eighth Circuit reversed.  The court determined that Hardison’s request for an accommodation could have been accommodated without resulting in an undue hardship for TWA.[47]  The court found that Hardison had proposed three possible reasonable accommodations, each of which would have involved arranging a voluntary time-swap with another employee so that Hardison could have taken Saturdays off.[48]  The Eighth Circuit then observed that neither TWA nor the union steward sought to find volunteers within the seniority system.[49]

The Supreme Court took a different view of the matter, reversing the Eighth Circuit and reinstating the lower court’s verdict.  The Court determined that Title VII does not require an employer or union to violate a seniority system contained in a collective bargaining agreement in order to accommodate an employee’s religious needs, even if this could be accomplished through reliance on volunteers willing to enter into a time-swap.[50]  The Court reasoned that:

It would be anomalous to conclude that by “reasonable accommodation” Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.[51]

The Court then turned to the definition of “undue hardship” under section 701(j).  Although the meaning of this term is not defined in the statute, the Court determined that requiring an employer to bear any cost greater than “de minimis” would constitute an undue hardship.[52]  In fact, the Court went so far as to suggest that requiring an employer to incur any “additional costs” to accommodate a religious employee—including administrative costs—would be tantamount to discrimination because it “would involve unequal treatment of employees on the basis of their religion.”[53]  Finally, the Court determined that the accommodations proposed by Hardison and endorsed as “reasonable” by the Eighth Circuit would have led to lost efficiency and thus amounted to more than a de minimis cost.[54]

Given the relative size of TWA, this outcome may seem perplexing at first blush.  As Justice Marshall observed in dissent, “to conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense.”[55]  Nevertheless, the de minimis standard announced in Hardison not only remains good law, but has been extended as applying to all religious accommodation cases brought under Title VII.[56]

B. Application And Impact Of The De Minimis Undue Burden Standard

Religious discrimination cases account for a very small minority of employment discrimination claims tracked by the EEOC—accounting for only 4.2% in 2016. [57]  However, that ratio has doubled over the past 20 years.[58]  Religion-based charges are found to have no reasonable cause around two-thirds of the time, which is in alignment generally with all Title VII claims. [59]  This provides at least some indication of parity between religious discrimination claims and other claims of discrimination, suggesting that the standard in place for determining whether the act has been violated weighs religious concerns on par with other concerns.

To illustrate the impact and effect of the de minimis standard, consider the case of Cummins v. Parker Seal Company.[60]   Prior to Hardison, the Supreme Court had affirmed by an equally divided court the Sixth Circuit’s holding that the defendant had failed to reasonably accommodate an employee-supervisor’s refusal to work on Saturdays because it conflicted with his religious beliefs as a member of the Worldwide Church of God.[61]  The defendant had defended the discharge on the ground that his fellow employees resented having to work on Saturdays when he did not.  The Sixth Circuit found this argument unpersuasive.  The court reasoned that, although “employee morale problems could become so acute that they would constitute an undue hardship,” such was not the case under these facts because the co-worker complaints had been “mild and infrequent.”[62]

The court also suggested that the defendant could have taken less drastic measures—such as requiring Cummins to work on Sundays or reducing his salary commensurately with his shorter work week—to alleviate whatever dissension there was.[63]  The court conceded that such steps may have “inconvenienced” the defendant.  It nonetheless concluded that “to call the inconvenience shown on this record ‘undue hardship’ would be to venture into ‘an Alice-in-Wonderland world where words have no meaning.’”[64]

Subsequent to the Hardison decision, the Supreme Court vacated its original holding in Cummins and remanded the case to the Sixth Circuit for reconsideration in light of Hardison.[65] The Sixth Circuit then reversed its earlier decision and dismissed the case, finding in favor of the defendant.[66]  The court did not elaborate on its reasoning other than making a brief citation to Hardison.  The decision suggests, however, that post-Hardison burdens placed on co-workers due to “preferential” treatment of a fellow employee because of his or her religious convictions constitutes an “undue hardship” and is thus not required by Title VII.

Undue burden to the employer of course does not mean the absence of a burden.  Under Title VII analysis, the court will assess the facts and circumstances to determine what is reasonable.  For example, in E.E.O.C. v. Ilona of Hungary, Inc.,[67] the court found that the employer did not satisfy the reasonable accommodation requirement and found that the accommodation did not place an undue burden on the employer.  In this case, Ilona is a for-profit closely held salon and skin care company was owned by husband and wife, George and Ilona Meszaros.[68]

Two employees, Tomilina and Glukhovsky, requested a scheduling accommodation to observe Yom Kippur as part of their Jewish faith.[69]  Each submitted their requests between ten days and two weeks prior to the holiday.  Both were denied and offered alternative days off.[70]  Neither reported to work on Yom Kippur and they were both subsequently terminated.[71]

The court held that Ilona did incur a loss as a result of the employees taking off the day, however, that loss was due to their own refusal to accommodate.[72]  Although appointments were already booked, the employees gave ample notice of the request which would have provided plenty of time to reschedule.[73]  That the accommodation was not granted actually resulted in a greater loss than if the accommodation would have been granted.  In looking at the facts and circumstances present in this case, the court determined that the employer failed to provide a reasonable accommodation and did not show that to do so would unduly burden the employer.

III.  Religious Freedom Restoration Act (RFRA)

The Religious Freedom Restoration Act (RFRA) prohibits the Government from imposing a law which would substantially burden free exercise of religion for an individual, unless the Government can show that the law “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”[74] The statute applies to all existing and future Federal laws, as well as the administration of these laws.[75]  In other words, for a Federal law or administrative rule related to a Federal law to be exempt from RFRAs reach, the law would have to explicitly create an exemption.

A. The Case That Started The New Religious Protectionist Movement

RFRA legislation was introduced as a response to the Supreme Court’s decision in Employment Division v. Smith.[76]  The Smith case involved the termination for cause of two employees, and subsequent denial of unemployment benefits, after each tested positive during a work-related drug test for the use of an illegal drug.[77]  Oregon state law prohibits the use of  a controlled substance.  The plaintiffs, Alfred Smith and Glen Black, were employed as drug counselors and subject to random drug testing.  When the men tested positive for a controlled substance, they were terminated from the jobs.  The plaintiffs claimed that the drug they ingested, peyote, was a religious sacrament used in religious services at a Native American Church service.  When they applied for unemployment benefits they were denied as ineligible because they were terminated for work-related misconduct.[78]  The employees sued, arguing that the use of peyote in a religious ceremony was protected by the free exercise clause of the First Amendment, and as such, a law denying benefits for its use in that context also violated the First Amendment.[79]   The state argued that it had a compelling interest in proscribing use of certain drugs pursuant to its controlled substance laws.[80]

The Supreme Court ruled in favor of the state, holding that denial of unemployment benefits for criminal drug use was not a violation of free expression protections.[81]  The court held that the state did not have to show a compelling interest where the law was criminal in nature, neutral in its purpose and generally applicable,[82] consistent with prior case law addressing “ordered liberty.”[83]  The Court also recognized that religious exemptions from valid laws could be permitted if the legislature saw fit to allow it[84] so long as the law was neutral.[85]

Prior to the holding in Smith, the Court had held that the Government must demonstrate a compelling interest justifying a law that imposed upon the free exercise of religion a substantial burden.[86]  This seeming change in standard[87] caused an immediate and wide ranging reaction from across the political, social, and religious spectrum to form a broad coalition to call for a legislative response to Smith.[88]  In passing RFRA, congress explicitly recognized the purpose:

“The Congress finds that in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”[89]

B. Restoration Of The Standard That Never Was

The clear intent of RFRA was to “return” to the pre-Smith standard of requiring the showing of a compelling governmental interest for any law that imposed a substantial burden on free exercise of religion.  The wide sweeping language of RFRA gave concern of the need to clarify its reach.  As a result, in the section titled “Other Areas of Law are Unaffected,” the Report states:

“[a]lthough the purpose of this act is only to overturn the Supreme Court’s decision in Smith, concerns have been raised that the act could have unintended consequences and unsettle other areas of law…[n]othing in this act shall be construed as affecting religious accommodation under Title VII of the Civil Rights Act of 1964.”[90]

However, prior to Smith, it was very rare that religious claimants under the First Amendment Free Exercise clause would be allowed to excuse themselves from obeying the laws that applied to everyone else simply because they had a religious belief that happened to be in conflict with that law.  Laws requiring payment of Social Security taxes could not be avoided based on religious objections,[91] televangelists cannot avoid sales taxes,[92] Native Americans cannot dictate the use of federal land,[93] and Jewish business owners could not force blue laws to accommodate their day of Sabbath.[94]  The court, prior to Smith, had a long and well established history of recognizing that belief is absolutely protected, but conduct is not.

RFRA was initially buttressed by a diverse coalition that brought together religious groups, People for the American Way, the American Civil Liberties Union (ACLU), and Americans United for Separation of Church and State (Americans United).[95]  This coalition, and the bi-partisan support for a “return” to pre-Smith standard, gave political opportunity to religious adherents to demand of Congress a grant of extreme religious protections.  RFRA prohibits government from substantially burdening an individual’s exercise of religion even if the burden is the result of a generally applicablelaw.[96]  Except:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.[97]

The “least restrictive means,” means that the law must be tailored to the particular believer and is extremely difficult to satisfy.[98]  To demonstrate the impact of this law and how far it falls from prior First Amendment Free Exercise jurisprudence, consider:

“First, the Supreme Court has applied rationality review to neutral, generally applicable laws, which is to say, most laws, under the First Amendment’s Free Exercise Clause, as it held in Smith. Second, the First Amendment has reserved strict scrutiny for laws that are not neutral or generally applicable. Third, the Court has never applied the ‘least restrictive means’ test in a First Amendment free exercise case.”[99]

RFRA and its progeny are not about “restoring” some long existing standard discarded by the courts,[100] rather these laws create new and extreme rights that exceed Free Expression protection, as well as new and extreme burdens on the government to apply generally applicable laws that are neutral as to religion to religious individuals.[101]  The shift in power created by this new standard favors religious beliefs and has the potential to harm third parties.  The bill passed by unanimous consent.

IV. The RFRA in Employment Law – Unreasonable Accommodations

The United States is gradually becoming more religiously diverse—and this trend will persist.[102]  Changes in religious demographics are naturally seen in the American workplace.[103]  The impact of growing diversity in general requires finding a balance in the workplace that respects differences while preserving the ability of the business to be effective.[104]  At the same time demographics are changing and workplaces are striving to embrace and take advantage of diversity,[105] there has been a brewing political backlash[106] that has been growing in the United States for decades and has exploded in response to increasing acceptance of LGBT rights[107] and prejudices associated with different religious faiths.[108]

Tensions are only growing stronger in the United States as people become more polarized[109]—these tensions have been demonstrated in a litany of legislation to undermine civil liberties and place religious interests above secular interests, as well as increased instances of hate crimes targeting individuals based on their race, ethnicity, religion and sexual orientation.[110]  In this climate, RFRA has been quickly evolved from a universal preservation of religious liberty to a conservative weapon to defeat the application of anti-discrimination measures.[111]  The Courts have seemed more than happy to accommodate, as they have push the door wider and wider to allow RFRA to usurp Title VII protections.

A. RFRA Accommodation in the Alternative to Title VII

In Tagore v United States,[112] the Fifth Circuit Court of Appeals remanded a case for for reconsideration involving an employee of the IRS who was terminated when she failed to return to work after security guards refused her admission into the building while wearing a knife, called a kirpan, that is a ceremonial instrument of the Sikh faith.[113]  Tagore asserted two claims in the matter: religious accommodation Title VII and RFRA.

Tagore requested a waiver to allow her to wear a three inch blade which was denied.[114]  The IRS emailed Tagore suggested accommodations that would be respecting of her religion and within the rules and laws of the agency, including: “(1) wearing a kirpan with a blade shorter than 2.5 inches, (2) wearing a dulled blade, (3) wearing a dulled blade sewn in its sheath, (4) wearing a ‘symbolic kirpan’ encased in plastic or leucite, or (5) leaving her kirpan at home or in her car while she was in a federal building.[115]  She refused, saying all of the proposed options would violate her conscience or religious mandates.

The Court dismissed the Title VII action stating that the IRS did not have to accommodate Tagore’s request for a waiver to wear the kirpan in excess of 2 ½ because the accommodating the request would violate federal law, thus meeting the de minimis undue burden standard.[116]  However, the Court reverse Summary Judgment against the RFRA claims and remanded for further consideration.[117]  The Court noted that the lower court failed to consider the sincerity of Tagore’s religious belief that she could not wear a kirpan smaller than three inches, and assuming she could establish the first prong the RFRA prima face case, the court would then need to evaluate whether the law[118] substantially burdened her religious practice.  The Court observed that this hurdle would not be difficult to cross since “she gave up her job rather than wear a shorter-bladed kirpan” and would have been in violation of federal law by entering the building with it.[119]

The Court recognized that the Government should easily be able to demonstrate a compelling interest in protecting people with restrictions on weapons in government buildings, however, the Court noted:

“RFRA requires the government to explain how applying the statutory burden ‘to the person’ whose sincere exercise of religion is being seriously impaired furthers the compelling governmental interest. A ‘categorical approach’ is insufficient, particularly if, as here, the statute includes exceptions to the prohibition, and the government must produce evidence justifying its specific conclusion.”[120]

At this time, this appears to be the only case in which a Circuit Court of Appeals has allowed a plaintiff to move forward with a RFRA claim a case in which Title VII is implicated.  Lower courts have disallowed plaintiffs from asserting RFRA claims with Title VII claims

B. Private Party Litigation

In Hankins, a pastor sued the church that formerly employed him based on a violation of the Age Discrimination in Employment Act (ADEA).[121]  Rev. Hankins was ordained as a minister and served from 1962 until 2003 in the United Methodist Church (UMC).  Simply put, the policies that govern the church, including any rules related to retirement age limits, were maintained in The Book of Discipline,[122] which is controlled by the General Conference.  The rules stated that ministers would be subject to mandatory retirement at the age of 70, however, after retirement a minister may be appointed by his Bishop if he is determined to be fit.[123]  Rev. Hankins Bishop, Bishop Lyght, refused to appoint him siting his and other Bishop’s policy to “not continuing a pastor in the same pastoral charge from where he or she retires from full-time ministry.”[124] Rev. Hankins sued the church and Bishop Lyght for age discrimination under ADEA after receiving the Notice of Right to Sue from the EEOC.[125]

The district court dismissed the case based on the church’s ministerial exception founded in common law, which provides an exception to employment discrimination on the part of a religious society by employees who qualify as “ministers” in order to prevent free expression rights from being burdened.[126]  On appeal, the Second Circuit ruled that the ministerial expectation was not applicable to a statutory question since there was a separate statute, RFRA, that provided the relevant defense.[127]  The panel held that by amending the ADEA, RFRA governed the merits of the case and remanded it to the lower court.[128] In doing so, the Hankins court accepted that RFRA applies to private party litigation—without that acceptance, it would be irrelevant in this private party action whether RFRA supplanted the common law defense of ministerial exception.[129]

The question of whether RFRA applies to litigation between private parties has significant implications for Title VII claims, including religious accommodation.  For example, RFRA controls the level of scrutiny that the courts apply to neutral, generally applicable laws.[130]  The question of RFRAs application to private party litigation is implicated in two ways: (1) when it creates a claim against a private defendant; and (2) when it creates a defense to a claim brought by a private plaintiff.  If private parties can claim an action or defend against an action in private litigation, more and more employers will be able to undermine Title VII protections simply by claiming religious exemptions.

C. New Rights Extended to the Employer Through RFRA

Hobby Lobby is a large for-profit crafts store chain owned by the Green family.  It has over 32,000 employees and 750[131] stores nationwide,[132] earning $4 billion in revenue.[133] The Greens also own a chain of Christian bookstores that employs 400 people.[134]  The Hobby Lobby[135]case consolidated three cases involving closely held corporations suing to challenge the Health and Human Services (HHS) mandate requiring for-profit[136] companies to provide contraceptive coverages with employee health plan benefits as part of the Affordable Care Act (ACA).[137]  Failure to comply with the mandate would have resulted in costly fines and penalties.[138]  The companies filed suit under RFRA claiming that the mandate violated their religious beliefs[139] because providing contraceptive coverage would allow employees the ability to use certain birth control options that they considered to be “abortifacients.”[140]

The court ruled in favor of Hobby Lobby, expanding[141] the scope of persons covered under RFRAs protections to for-profit[142] closely-held corporations.[143]  This represents the first time the Court has ever ruled that a private for-profit corporation has the same Free Exercise rights as individuals.  The court then focused on whether, as persons with Free Exercise rights, the corporations were substantially burdened by the mandate.[144]  The court found that, despite options available to these corporations to avoid directly providing insurance to employees, Hobby Lobby would be subject to fines up to $475 million per year if it chose to opt out of the mandate and this prospect satisfied the substantial burden.[145]  The Court also rejected the HHS argument that the burden claimed—the connection between the mandate and religious objection—was too attenuated.[146]  The Court, in doing so, extends a very lenient standard for sincerity of belief to a statute that now imposes a very stringent standard for governmental intrusion on religious beliefs.[147]

 V. The Potentially Nullifying Impact of RFRA on Title VII Protections

The full impact of Hobby Lobby has yet to be seen and will likely play over many years—without legislative intervention.[148]  The potential seems significant, especially in light of the appointment of Neal Gorsuch, to the bench.[149]  The combination of for-profit closely-held corporations as persons with Free Exercise protections,[150] the Court’s effective inability to question the sincerity of the belief, and the government’s effective inability to burden a corporation’s religious beliefs, opens the door to a vast potential for abuse.  Add to that the potential that RFRA could be applicable in private party actions and that it could be asserted by employees against their employers, the potential for abuse is compounded by the chaotic impacts these competing rights create.  Will federal anti-discrimination statutes by nullified?

A case that will likely test the relevance and force of RFRA in Title VII actions is currently on appeal to the Sixth Circuit.  In the case if the EEOC v R.G. & G.R. Harris Funeral Home, Inc (Funeral Home),[151] involves a transgender woman, Aimee Stephans, who was terminated from her job with the Funeral Home when she informed her employer that she was in the process of transitioning from male to female and began wearing clothing in alignment with her gender identity.  Stephans began working at the Funeral Home in October of 2007 as a funeral director and embalmer.  The duties include, among other things, accompanying families and friends of deceased to the burial sites.  In her time as an employee, it is not disputed that she did an excellent job executing her responsibilities in her role.

The Funeral Home is a for-profit closely held corporation, located in Michigan.  Thomas Rost is the majority shareholder, with his children holding the balance.[152]  Rost is Christian and the Funeral Home’s mission statement include reference to honoring God in their work as a company, however, they are not affiliated with a church or religious society.[153]    The Funeral Home has a regimented and gender specific Dress Code for men and women.  Male employees who interact with the public are required to wear suit and tie, and women are instructed to dress “conservatively…suit or a plain conservative dress.”[154]

On July 31, 2013, Stephans notified Rost and the Funeral Home of her decision to have sex reassignment surgery and as part of that transition, she would be living and working as a woman and would be adhering to the gender specific dress code going forward.[155]  When Stephans returned to work following her announcement, Rost told her “this is not going to work,” and she was immediately terminated.[156]  Stephans filed a complaint with the EEOC for sex discrimination.

On June 5, 2014, the EEOC issued a letter of determination stating that the agency believed that Stephans’ Title VII rights has been violated when the Funeral Home “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”[157]  Ultimately, the trial court rejected the claim of discrimination based on transgender status, however the court agreed that Stephans stated a claims because of sex-stereotyping under Price Waterhouse.[158]

In dueling Motions for Summary Judgment filed by the plaintiff and defense, the Court held that, although Stephans stated a claim for sex discrimination under Title VII, the defendant was entitled to Summary Judgement on basis of his asserted RFRA defense.[159]  In fact, and quite notably, the court found that Stephans was able to show through direct evidence the existence of sex discrimination and but for the availability of the RFRA defense would have been entitled to Summary Judgment on those facts.[160]

The Court ruled that the Funeral Home was entitled to an exemption to Title VII anti-discrimination prohibitions by way of a RFRA defense.  The Court reasoned:

“One of the stated purposes of RFRA is to provide a “defense to persons whose religious exercise is substantially burdened by the government.” 42 U.S.C. § 2000bb(b)(2). RFRA provides that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding.” 42 U.S.C. § 2000bb-1(c) (emphasis added).  By its terms, RFRA “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a) (emphasis added).”[161]

Citing the Hobby Lobby decision, the court reasoned that the Funeral Home was entitled to RFRA protection as a for-profit closely-held corporation.[162] In determining whether Title VII imposes a substantial burden, the Court again cited Hobby Lobby as determinative of the inquiry—whether the law at issue “imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs.”[163]  The Court held that Title VII did impose a substantial burden on the Funeral Home’s ability to conduct business in accordance with their religious beliefs.[164]  Rost claimed that continuing to employ Stephans and allowing her to wear women’s clothing would put him in conflict with God’s commands.[165]

The EEOC argued that Hobby Lobby addressed Title VII preemptive status over RFRA,[166] however, the court found different meaning in the Hobby Lobby language.[167]  In applying the Hobby Lobby analysis, the Court noted that in determining whether the compelling interest test is met, it cannot focus on broad goals such as promoting gender equality, rather the focus must be placed on the interest the government has as applied to the individual challenging the law.  In other words, it is irrelevant whether the government has an interest in preventing sex discrimination in the workplace, it is only relevant whether the government has an interest in preventing sex discrimination in this particular workplace and under these particular facts and circumstances.[168]

The court assumed that the EEOC met the compelling interest prong, and moved to the least restrictive means prong.[169]  The EEOC argued that Title VII is narrowly tailored, however, the Court ruled that the EEOC did not provide the appropriate analysis.[170]  The Court discussed the Hobby Lobby analysis which would be required—a showing that the burden in its application to the person was the least restrictive means to accomplish the governments compelling interest.[171]  The court emphasized the difficulty of establishing this standard according to the Hobby Lobby analysis:

“The “least-restrictive means standard is exceptionally demanding.” Hobby Lobby, 134 S.Ct. at 2780. That standard requires the government to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part [y].” Id. at 2780.”

This holding represent potentially devastating blow to Title VII protections.  While these types of cases are only just making their way into the courts, this case has a lot to say about the potential expansive impact RFRA has in facilitating the imposition of religious beliefs in such a way that harms third parties[172] and impairs anti-discrimination protections generally.  This holding clearly rejects a broad interpretation of the statement: “Nothing in this bill shall be construed as affecting Title VII of the Civil Rights Act of 1964.”[173]

This decision is not specific to the issue of sex discriminations, rather, if this analysis and interpretations holds, it creates a potential nullifying effect to all Title VII protections.  The eye through which one must threat the needle is so narrows, it is difficult to see how any Title VII claimant could survive a RFRA defense.  The Courts findings in this case creates an extreme protection of religion that promotes rather than protects believers by placing employer declared religious beliefs above the rights of employees—exactly the outcome that Title VII undue burden seeks to avoid.


VI. RFRAs Unconstitutional Beginnings and Unconstitutional Effects

A.  Congressional Attempt to Amend The Constitution

In Boerne, the city had an ordinance that prohibited alterations and expansion of buildings residing in areas designated as historic districts or landmarks.  Archbishop Flores brought suit against the City of Boerne under the RFRA when his application on behalf of the church for a building permit to expand the building was denied by the City denied. The City’s Historic Landmark Commission determined the church was located in a historic district, and therefore denied the application.

Ultimately, the case was decided not on the applicability of the RFRA to the particular facts, but rather was challenged as constitutionally inapplicable to state and local laws as an overreach of Congress’s Fourteenth Amendment powers.[174]  The court held that Congress’s powers under §5 of the Fourteenth Amendment are strictly remedial and not plenary.[175]  In other words, Congress can enforce laws to protect constitutional rights, but cannot define the substance of that constitutional right—only the courts can interpret the substance of the right.[176]  The court held that RFRA exceeds the scope of Congress’s remedial enforcement powers—thus, in relation to the desired ends of promoting religious freedom RFRA is overly broad in its reach and scope, and therefore unconstitutional.

Following the Boerne decision, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000, (RLUIPA)[177] to provide institutionalized persons greater rights to engage in conduct required of followers of a religion and to protect religious institutions from discriminatory land use regulations or zoning codes.[178]  The result is that the RFRA applies a heightened strict scrutiny to all federal laws and regulations, except where explicitly exempted, making the protections for religious liberty significantly stronger than First Amendment protections.  In recent years, this has meant increasingly that Free Exercise cases are determined through the enhanced rights provided by RFRA, with the First Amendment playing a secondary role.[179]

The Boerne case, like Smith, inspired legislation to plug the whole left open by the Supreme Court decision.[180] As of 2005, twenty-two states enacted some form of RFRA legislation.[181]  Most states model the language of the Federal RFRA, but some have broaden the protections of the Federal RFRA significantly—many in direct response to anti-discrimination laws.[182]  Instead of serving as a limitation on the effect of the RFRA, Boerne has served as the catalyst for state level expansion of religious rights, far exceeding those recognized under Free Expression jurisprudence.[183]

B.   RFRA & The Establishment Clause

A central purpose of the Establishment Clause is “ensuring government neutrality in matters of religion.”[184]  A central purpose of the Free Exercise Clause is, in turn, to prevent government infringement of the freedom of religious belief and exercise.[185] Together, the two religion clauses mandate that government be neutral[186]—but not hostile—to religion.  The clauses also create an area of government action that the Supreme Court has called the “play in the joints.”[187]  That is, nothing in the Constitution requires that the government take such actions, but nothing in the Constitution prevents it from doing so either.

The Federal Government may mandate accommodations in order to protect Free Exercise.[188]  Accommodation is mandated where religion is singled out and subject to burdens to which secular conduct is not subjected.[189]  The Government’s ability to accommodate religion is limited by the Establishment Clause.[190]  Where an accommodation is mandatory Establishment Clause issues do not arise.[191]  However, when the accommodation does not arise out of the mandate to protect Free Expression, the Establishment Clause requirements must be satisfied as the result of such accommodation raises the issue of government giving preference to religion.[192]

RFRA is an example of such an action.  To the extent that it fosters the free exercise of religion by extending the principle of religious tolerance to the private marketplace, it is consistent with the Free Exercise Clause, but not required when it does not implicate the government as employer.[193]  However, RFRA’s purpose and effect implicate the Establishment Clause through application of the test established by the Supreme Court in Lemon for determining what constitutes an establishment of religion.  As such, it does create a colorable Establishment Clause issue.

Under the Lemon test, a statute, to be consistent with the Establishment Clause, must comply with the following: (1) “the statute must have a secular legislative purpose”[194]; (2) “its principal or primary effect must be one that neither advances nor inhibits religion”[195]; and (3) the statute must not foster “an excessive entanglement with religion.”[196]  The de minimis undue burden standard under Title VII, requiring of an employer to make reasonable accommodations that are not disruptive or costly to the business, avoids the implication of the Establishment Clause because it serves to avoid discriminatory actions rather than create an absolute duty to accommodate religious belief or practice.  Conversely, RFRA has the potential to require the employer to eliminate the conflict and capitulate to the religious employee’s accommodation[197], a result that amounts to privileging religious-based accommodations over non-religious-based ones.[198]

The Supreme Court differentiated that line in its decision in Estate of Thornton v. Caldor, Inc.[199]   That case involved a Connecticut statute that prohibited an employer form requiring an employee to work on the day of the week observed as his or her Sabbath and that provided that refusal to work on the Sabbath could not constitute grounds for dismissal.  The Court held that the statute violated the Establishment Clause because it provided Sabbath observers with an “unqualified” and “absolute” right not to work on whatever day they designated as either Sabbath,  regardless of the burden or inconvenience imposed on the employer or other workers.[200]   It thus had the primary effect of promoting a religious end “over all secular interests in the workplace.”[201]

In a concurring opinion, Justice O’Connor echoed the majority’s complaint with the Connecticut statute and added that she did not read the opinion as suggesting that the duty-to-accommodate created by Title VII was similarly invalid since that provision promoted the secular purpose of assuring equal employment opportunity and required “reasonable rather than absolute” accommodation.[202]   Finally, she distinguished Title VII from the Connecticut statute on the ground that the former extended protection to all religious observance, while the latter mandated accommodation only to Sabbath observance and thus did not have “the valid secular purpose of assuring employment opportunity to all groups in our pluralistic society.”[203]

The apprehensions stated by the Caldor Court support the argument that RFRA violates the Establishment Clause.  RFRA does not impose an absolute duty to accommodate, unlike the Connecticut statute, however it imposes a much higher duty by making the prohibition, [204] the governmental interest,[205] and the scrutiny applied[206] so high as to make the effect in application nearly absolute.  Moreover, RFRA does not single out one religious practice common only to particular religious groups.  It extends its protections to all religious beliefs and practices, while it also prohibits all religious discrimination even if the targets do not happen themselves to be religious as we typically understand that term.   It thus meets O’Connor’s concern expressed in Caldor that religious discrimination statutes serve a secular purpose that recognizes the pluralism of the contemporary American cultural landscape.

The Supreme Court in Hardison had the opportunity to pass on the constitutionality of Title VII’s reasonable accommodation requirement.[207]  The defendant argued that the statute, by requiring accommodation of an employee’s religious beliefs, constituted an establishment of religion in violation of the First Amendment.[208]  The court ignored this argument in its opinion, however, a move that suggests it did not deem the issue necessary to resolve in light of its adoption of the de minimis standard.  This leaves open the question whether a more stringent standard, as RFRA increasingly imposes, would run afoul of the Establishment Clause.

Despite the Court’s apparent endorsement of the constitutionality of Title VII, the constitutional issue has been raised in a number of cases since Hardison. Almost all courts addressing the issue, including the Third, Fourth, Sixth, Seventh and Ninth Circuits, have rejected the constitutional challenge.[209]  In Nottelson v. Smith Steel Workers D.A.L.U. 19806,[210] for example, the Seventh Circuit applied the Supreme Court’s three-pronged test announced in Lemon for evaluating an Establishment Clause challenge and made the following determination regarding the reasonable accommodation provision.  First, it had a secular purpose, the elimination of discrimination.[211]  Second, it neither advanced nor inhibited religion.  Here, the court noted that, “[l]ike the statutory exemption to military service for conscientious objectors, it requires no particular sectarian affiliation or theological position and promotes only ‘the principle of supremacy of conscience.’”[212]  The court also made reference to EEOC regulations interpreting the term “religion” as having the same broad meaning as used in the religious exemption provision in the selective service statutes.[213]  Finally, the court determined that it did not involve an excessive governmental entanglement with religion,[214] an issue that is perhaps less relevant here given developments in Establishment Clause jurisprudence since Lemon.[215]

V.  Conclusion

RFRA is increasingly being used as a tool by conservatives to combat application of anti-discrimination laws to themselves and as a means to actively discriminate under the guise of religious liberty.  What once rallied a nation together to support its passage, has now become a polarizing devise to “protect” religious believers from the rights of others—and the resulting litigation has created a tidal wave of new rights that place employee rights in direct contention with employer rights, and risk nullifying Title VII anti-discrimination provisions.

Without substantive requirements to establish sincerity of belief, pretext as a disqualifier for exemption will only exist in the theoretical.  The combination of text and application of RFRA has led to outcomes which clearly demonstrate governmental preferences for religion that favor religious interests over secular interests.  RFRA and its state-level progeny should be invalidated as violation of First Amendment Establishment Clause.

In recent years, there has been an increase in both anti-discrimination laws to protect the LGBT community and well as an increase in religious based laws to exempt parties from the formers application.   As the courts have increasingly recognized the rights of gays and lesbians, there has been a backlash  at the Federal and State level to enact legislation that would expand the ability to discriminate based on religious beliefs.

Increasingly, religious protectionist laws are being created and used to combat what some on the right consider to be an affront to their moral values.  The Supreme Court has given the political right ammunition through extreme religious protection to exact their intolerance as they will without a substantial mechanism to ensure the sincerity or validity of the proclaimed belief—they have even gone so far as to validate the attenuated claim of complicity to justify action or inaction in contravention of anti-discrimination measures.

The short-sightedness of this backlash is—just as those who supported RFRA in 1993 have realized the devastating impact it can have, so too will those who use RFRA for their discriminatory aims when those aims are directed back at them.  RFRA has the potential to not just promote religious interests over secular interests, but to promote particular religious interests over other religious interests. The decision in Hobby Lobby has opened the door to government sanctioned employment based discrimination that threatens to nullify the effect of Title VII protections, ironically, against religious based discrimination—as well as a host of other protections provided under Title VII.

The proliferation of state-based RFRA statutes that provide broader exceptions allowing for discrimination further erodes anti-discrimination efforts at the state and federal level.  Over time, the Federal RFRA and its state level equivalents have the potential to morph into a tool used for the purpose of discriminating based on religion, national origin, and sex.  RFRA should be repealed in recognition of its violation of the Establishment Clause.

[1] Lee v. Weisman, 505 U.S. 577, 632 (1992) (Scalia, J., dissenting).

[2] H. Leon McBeth, The Baptist Heritage 270 (1987).  The charges included preaching in violation of law requiring registration of meetinghouses (easily abused and difficult to meet for deep rural areas) and disturbing the peace.  See generally id. at 268-73.

[3] Id. at 271-72 (discussing a fine of 20 pounds and noting that fines applied to offenses such as disturbing the peace and parental cruelty for failure to baptize infants).

[4] Id. at 249.

[5] Discrimination against Irish Catholics well-known and documented in U.S. history and religion textbooks.  For a discussion of the Protestantism connection, see, e.g., Peter W. Williams, America’s Religions 276-77 (1998).

[6] Judah P. Benjamin almost became the first Jewish member of the U.S. Supreme Court.  In 1858, President Fillmore nominated Benjamin, but he declined the nomination.  Benjamin went on to serve as Secretary of State of the Confederate States of America.  Ruth Bader Ginsburg, From Benjamin to Brandeis to Breyer: Is there a Jewish Seat?, 41 Brandeis L.J. 229, 230-32 (2002).

[7] Id. at 233.

[8] See generally E. Gregory Wallace, Justifying Religious Freedom: The Western Tradition, 114 Penn St. L. Rev. 485, 495 (2009). Wallace observes that “Our constitutional commitment to religious freedom is the culmination of centuries of theological and political controversy about the proper relation between religion and government.” Id. at 221.

[9] U.S. Const. art. VI. § 3.

[10] Title VII—Equal Employment Opportunity, 42 U.S.C § 2000 et. seq. (2017).

[11]  “It shall be an unlawful employment practice 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.” Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

[12] See Pew Research Ctr., America’s Changing Religious Landscape 3 (2015), http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/.

[13] See, e.g., Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 448, 123 S. Ct. 1673, 1679, 155 L. Ed. 2d 615 (2003) (“At common law the relevant factors defining the master-servant relationship focus on the master’s control over the servant.”)

[14] USCS Const. Amend. 1 (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”)

[15] 42 U.S.C. § 2000e-2(a).

[16] Id.

[17] Rachel M. Birnbach, Love Thy Neighbor: Should Religious Accommodations That Negatively Affect Coworkers’ Shift Preferences Constitute an Undue Hardship on the Employer Under Title VII?, 78 Fordham L. Rev. 1331, 1338 (2009).

[18] 29 C.F.R. § 1605.1 (1967).

[19] Id.

[20] Debbie N. Kaminer, Title VII’s Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment. 21 BERKELEY J. EMP. & LAB. L. 575, 582 (2000).

[21] 42 U.S.C. § 2000e (j).  The term “religion” includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Id.

[22] See Prince v. Massachusetts, 321 U.S. 158, 161-62 (1944).

[23] Peter Zablotsky, After the Fall: The Employer’s Duty To Accommodate Employee Religious Practices Under Title VII After Ansonia Board of Education v. Philbrook, 50 U. Pitt. L. Rev. 513, 516-17 (1989) (“…the amendment did not provide guidance with respect to three significant issues: 1) the definition and scope of reasonable accommodation; 2) the definition and scope of undue hardship; and 3) the relationship between reasonable accommodation and undue hardship.”).

[24] 432 U.S. 63 (1977)

[25]  Id. at 84.

[26]  Id.

[27] For a detailed discussion of the balance between business, tolerance and Title VII’s reasonable accommodation requirement, see Hillel Y. Levin, Rethinking Religious Minorities’ Political Power, 48 U.C. Davis L. Rev. 1617 (2015).

[28] See Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (A church  sought an exemption for narcotics used in its ceremonies. The court ruled that “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’-the particular claimant whose sincere exercise of religion is being substantially burdened.”  Under this standard the government’s interest in an employment discrimination lawsuit is not its interest in eliminating discrimination from all workplaces, as in the case in Title VII actions, but instead its interest in “the particular claimant.”); Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) (IRS employee of the Sikh faith successfully asserted RFRA to allow her to wear a knife, as required by her faith, to work in a Federal building. The court ruled, among other things, Title VII claim unsuccessful due to undue burden on employer, however, reversed dismissal and citing Gonzolez may proceed on RFRA action.).

[29] Hobby Lobby, 134 S. Ct. 2751 (Holding that for-profit closely-held corporations are protected persons with First Amendment Free Expression rights to religious accommodation when federal law imposes a substantial burden on the corporation’s sincerely held religious beliefs).

[30] See Scott C. Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power, 73 TEX. L. REV.247, 248 (1994) (discussing the wide bi-partisan support RFRA received when passed); Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. ILL. L. REV.839, 845-46 (2014) (noting that religious accommodations and RFRA have move from wide support to controversial); Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 YALE L.J. 2516 (2015) (explaining that complicity-based claims for accommodation have increased in recent years).

[31]  It should be noted that in 1972 Title VII was amended to apply to federal, state, and local employers. Pub. L. No. 92-261, 86 Stat. 103, 111.  It also should be noted that, under free-exercise jurisprudence, the government traditionally could not substantially burden a public employee’s free-exercise-of-religion rights unless the government could show that it had a compelling interest to do so.  See, e.g., Sherbert v. Verner, 374 U.S. 398, 404 (1963) (holding that state could not deny unemployment compensation to a Seventh-day Adventist woman denied benefits because her religious faith prevented her from working on Saturdays).

[32] The traditional rule allowing an employer to discharge an at-will employee remains in force in all jurisdictions. The courts have not changed the general rule. 31 Am. Jur. Trials 317 (Updated March 2017)

[33] Title VII—Equal Employment Opportunity, Pub. L. No. 88-352, § 703, 78 Stat. 241, 255 (1964) (codified at 42 U.S.C § 2000e-2).

[34] Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1) and (a)(2).

[35] The Act provides: “It shall be an unlawful employment practice for an employer (1) 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.” 42 U.S.C. § 2000e-2(a) (1991).

[36] Title VII creates the Equal Employment Opportunity Commission (EEOC) to administer and interpret its provisions. 42 U.S.C. § 2000e-2(a).  See Trans World Airlines v. Hardison, 432 U.S. 63, 72-76 (1977) (discussing legislative history, cases, and EEOC guidelines interpreting the Act’s reasonable accommodation requirement up through that decision).

[37] E.g., Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), aff’d 402 U.S. 689 (1971) (per curiam); Riley v. Bendix Corp., 330 F. Supp. 583 (M.D. Fla. 1971), rev’d 464 F.2d 1113 (5th Cir. 1972).

[38] 432 U.S. 63, 73 (quoting remarks of Sen. Randolph, sponsor of the amendment in the Senate; see 118 Cong. Rec. 706 (1972)).

[39] 42 U.S.C. § 2000e(j).

[40] Kaminer, supra note 28, at 575 (examining cases and EEOC guidelines interpreting the accommodation requirement).

[41] 432 U.S. 63 (1977).

[42] According to the EEOC: “Employees and prospective employees most frequently request an accommodation because their religious practices conflict with their work schedules” 29 C.F.R. 1605.2(d) (2017).

[43] 432 U.S. at 66-67.

[44] Id. at 68.

[45] Id. at 68-69.

[46] Hardison v. Trans World Airlines, Inc., 375 F. Supp. 877, 882 (W.D. Mo. 1974), rev’d, 527 F.2d 33 (8th Cir. 1975), rev’d, 432 U.S. 63 (1977).

[47] Hardison v. Trans World Airlines, Inc., 527 F.2d 33.

[48] Id. at 40-41.

[49] Id. at 42.

[50] Trans World Airlines, Inc. v. Hardison, 432 U.S. at 79.

[51] Id. at 81.

[52] “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Id. at 84.

[53] Id.

[54] Id.

[55] Id. at 91 (Marshall, J., dissenting).

[56] See, e.g., Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476 (2d Cir. 1985), aff’d, 479 U.S. 60 (1986); Ward v. Allegheny Ludlum Steel Corp., 560 F.2d 579, 580, 582 (3rd Cir. 1977); Allen v. Prince George’s County, 737 F.2d 1299, 1303 (4th Cir. 1984); Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir. 2000); Cummins v. Parker Seal Co., 561 F.2d 658, 659 (6th Cir. 1977); Eckles v. Conrail, 94 F.3d 1041, 1048 (7th Cir. 1996); Mann v. Frank, 7 F.3d 1365, 1368 (8th Cir. 1993); Balint v. Carson City, 180 F.3d 1047, 1053 (9th Cir.1999); Lee v. ABF Freight Systems, Inc. 22 F.3d 1019 (10th Cir. 1994); Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589, 593 (11th Cir. 1994).

[57] Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2016, Charge Statistics, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited Apr 26, 2017).

[58] Id.

[59] Id

[60] 516 F.2d 544, 10 FEP 974 (6th Cir. 1975), aff’d, 429 U.S. 65  (1976), vacated, 433 U.S. 903 (1977), on remand, 561 F.2d 658 (6th Cir. 1977).

[61] 429 U.S. 65 (1976).

[62] 516 F.2d 544, 550 (1975).  The court also stated: “If employees are disgruntled because an employer accommodates its work rules to the religious needs of one employee, … such grumbling must yield to the single employee’s right to practice his religion.” Id.

[63] Id.

[64] Id. at 550 (quoting Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring)).

[65] 433 U.S. 903 (1977).

[66] 561 F.2d 658 (6th Cir. 1977).

[67] 108 F.3d 1569 (7th Cir. 1997)

[68] Id. at 1572.

[69] Id.at 1573.

[70] Id.at 1573 (The company did have a policy related to taking time off documented in their employee manual, which stated that “if an employee requested a day off for religious reasons, the company would ‘cooperate’ with the request ‘provided advance notice [was] given.’” Id.at 1572).

[71] Id.at 1574. In both employees cases, they were told that the accommodation was denied and that they has scheduled appointments on that date already and were expected to keep the appointments.

[72] Id.at 1578.

[73] Id.at 1576.

[74] 1 Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb-2000bb-4 (2012)), invalidated in part by City of Boerne v. Flores, 521 U.S. 507 (1997).

[75] 42 U.S.C. § 2000bb–3(a).

[76] 494 U.S. 872 (1990), superseded by statute, Religious Freedom Restoration Act, Pub. L. No. 103-141, 107 Stat. 1488, as recognized in Holt v. Hobbs, 135 S. Ct. 853, 859-60 (2015).

[77] Id. at 874.

[78] Id. The Oregon Department of Human Resources argued the denial of benefits was permissible due to the criminal nature of the use of peyote.

[79] Id. at 875. Citing the case Sherbert v. Verner, 374 U.S. 398, 403 (1963), claimants argued in order to deny them the benefits the government must prove a compelling interest. Smith, 494 U.S. at 882-83.

[80] Id.

[81] It is commonly accepted that the decision in Smith changed the analysis under which the court reviewed First Amendment Free Expression cases.  However, Smith is distinguished from prior Supreme Court cases in that it was the first case involving a criminal law of general application.  See Sherbert v. Verner, supra; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136 (1987) (The supreme court invalidated state unemployment rules that disqualified benefits due to applicant’s inability to work where policies or conditions conflicted with religious beliefs). However, See Bowen v. Roy, 476 U.S. 693 (1986) (“declined to apply Sherbert analysis to a federal statutory scheme that required benefit applicants and recipients to provide their Social Security numbers”).

[82] Smith, 494 U.S. at 884-85 (“We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation”)

[83] Sell v. United States, 539 U.S. 166, 180 (2003); Chavez v. Martinez, 538 U.S. 760, 774 (2003); Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001); County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998); Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Kansas v. Hendricks, 521 U.S. 346, 357 (1997); O’Dell v. Netherland, 521 U.S. 151, 157 (1997); Carlisle v. United States, 517 U.S. 416, U.S. 333, 345, 352 (1993); Graham v. Collins, 506 U.S. 461, 478 (1993); Riggins v. Nevada, 504 U.S. 127, 135–36, 150–54 (1992); Palko v. Connecticut, 302 U.S. 319, 325–28 (1937).

[84] Id. at 899 (Legislatures, of course, have always been “left free to reach actions which were in violation of social duties or subversive of good order.” quoting Reynolds, 98 U.S., at 164); see also Yoder 406 U.S., at 219-220; Braunfeld v. Brown, 366 U.S. 599, 603-604 (1961).

[85] See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1992) (City ordinance intended to burden the church’s religious practice by prohibiting animal sacrifice, held not neutral and therefore violated Free Exercise rights).

[86] See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 214–15, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

[87] See Marci Hamilton, The Court after Scalia: The complex future of free exercise SCOTUSblog (2016), http://www.scotusblog.com/2016/09/the-court-after-scalia-the-complex-future-of-free-exercise/ (last visited Apr 27, 2017).  (“The interpretation of the Free Exercise Clause…came to rest on the following principles: (1) there is an absolute right to believe but not an absolute right to act (Reynolds v. US; Cantwell v. Connecticut); (2) the government may not mandate speech in contravention of one’s religious belief (West Virginia State Board of Education v. Barnette; Wooley v. Maynard); (3) harm to others is a limit on free exercise (Reynolds; United States v. Lee); (4) lawmakers may (and often do) exempt religious conduct from otherwise neutral, generally applicable laws (Employment Division v. Smith); and (5) the government may not target or discriminate against a religious individual or entity without strong and articulated reasons (Church of Lukumi Babalu Aye, Inc. v. Hialeah; Sherbert v. Verner). The doctrine, taken as a whole, protected religious believers and entities by absolutely protecting their right to believe, and shielding them from discrimination, but it also took into account the potential for harm and obligations to the larger society and the rule of law. The 1990 decision in Employment Division v. Smith rested on these principles.”)

[88] H.R. Rep. No. 103-88, at 1 (1993).

[89] 42 U.S.C. § 2000bb(a)(4)-(5). See also 42 U.S.C. § 2000bb(b) (“The purposes of this chapter are (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.”); see also H.R. REP. No. 103–88, at 1–5 (1993) (explaining the purpose of RFRA).

[90] S. REP. No. 103–111, at 12-13 (1993), reprinted in 1993 U.S.C.C.A.N. at 1903. The House Report on RFRA contains nearly identical language. See H.R. REP. No. 103–88, at 7 (1993) (“Nothing in this bill shall be construed as affecting Title VII of the Civil Rights Act of 1964.”).

[91] See United States v. Lee, 455 U.S. 252 (1982) (“…Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from Social Security taxes to an employer operates to impose the employer’s religious faith on the employees”)

[92] See Jimmy Swaggart Ministries v. Equalization Bd. of Calif., 493 U.S. 378 (1990)

[93] See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988)

[94] See Braunfeld v. Brown, 366 U.S. 599, 603– 04, (1961) (“Certain aspects of religious exercise cannot in any way be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute… However, the freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from legislative restrictions.…[ L] egislative power over mere opinion is forbidden, but it may reach people’s actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one’s religion”).

[95] See 139 CONG. REC. S14350 (This is a partial list entered into the Congressional Record representing support for the bill: Agudath Israel of America, American Association of Christian Schools, American Civil Liberties Union, American Conference of Religious Movements, American Humanist Association, American Jewish Committee, American Jewish Congress, American Muslim Council, Americans for Democratic Action, Americans for Religious Liberty, Americans United for Separation of Church and State, Anti-Defamation League, Association of Christian Schools International, Association of American Indian Affairs, Baptist Joint Committee, Coalitions for America, Concerned Women For America, Episcopal Church, Christian Legal Society, Church of Jesus Christ of Latter-day Saints, Church of Scientology, Evangelical Lutheran Church, Conference of Seventh-day Adventists, Jesuit Social Ministries, Mennonite Central Committee, National Association of Evangelicals, National Council of Churches, People for the American Way, Presbyterian Church, Southern Baptist Convention, Traditional Values Coalition, Union of American Hebrew Congregations, Union of Orthodox Jewish Congregations, United Methodist Church, United States Catholic Conference.) See also Joshua A. Edwards, Yellow Snow on Sacred Sites: A Failed Application of the Religious Freedom Restoration Act, 34 Am. Indian L. Rev. 151, 161 (2010).

[96] 42 U.S.C. § 2000bb, bb-1 (2012).

[97] The US Supreme Court has differentiated the narrowly tailored standard from the least restrictive means standard in First Amendment jurisprudence.  See Ward v. Rock Against Racism 491 U.S. 781 (1989) (“Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so.”)

[98] Fullilove v. Klutznick, 448 U.S. 448, 507 (1980) (Powell, J., concurring) (emphasis added).

[99] See Reynolds v. United States, 98 U.S. (8 Otto.) 145, 164 (1878) (“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”).


[101] “The court held that RFRA applied retroactively because Congress’s intent was clearly expressed in the statute, which provides that RFRA ‘applies to all Federal … law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.’” E.E.O.C. v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996). § 5:18.Overview of the substance of the Act—Retroactive application to all federal law, 1 Federal Civil Rights Acts (3d ed.) § 5:18

[102] See Paul D. Numrich, The Faith Next Door: American Christians and Their New Religious Neighbors 6 (2009).

[103] See Benjamin Wormald, America’s Changing Religious Landscape Pew Research Center’s Religion & Public Life Project (2015), http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/ (last visited May 1, 2017).

[104] See Demographic Change and the Future Workforce, Demographic Change and the Future Workforce, https://www.dol.gov/oasam/programs/history/herman/reports/futurework/conference/trends/TrendsI.htm (last visited May 1, 2017).

[105] See Sylvia Ann Hewlett, Melinda Marshall, Laura Sherbin, How Diversity Can Drive Innovation Harvard Business Review (2014), https://hbr.org/2013/12/how-diversity-can-drive-innovation (last visited May 1, 2017).

[106] For a discussion on various national religious-right groups mobilized to enact legislation to legalize discrimination against the LGBT community, See ‘Religious Liberty’ and the Anti-LGBT Right, Southern Poverty Law Center, https://www.splcenter.org/20160211/religious-liberty-and-anti-lgbt-right (last visited May 1, 2017).

[107] See Travis Gasper, A Religious Right to Discriminate: Hobby Lobby and “Religious Freedom” As A Threat to the LGBT Community, 3 Tex. A&M L. Rev. 395 (2015).

[108] This is evidenced particularly in the context of Muslem employees and applicants who have suffered discrimination based off of prejudices and perceptions about the religion post-911.  See Heather L. Weaver, 9/11’s Legacy of Religious Discrimination American Civil Liberties Union (2015), https://www.aclu.org/blog/911s-legacy-religious-discrimination (last visited May 1, 2017); See also 2011 September 5, Muslim Employees Still Face Unique Workplace Challenges a Decade After 9/11 Muslim Employees Still Face Unique Workplace Challenges a Decade After 9/11 | Bloomberg BNA, https://www.bna.com/muslim-employees-face-n12884903363/ (last visited May 1, 2017).

[109] See Carroll Doherty, 7 things to know about polarization in America Pew Research Center (2014), http://www.pewresearch.org/fact-tank/2014/06/12/7-things-to-know-about-polarization-in-america/ (last visited May 1, 2017).

[110] At the state level there are multiple competing bills intent on both providing protections from discrimination and exempting individual from anti-discrimination laws.  For a listing of current state-level bills, See Legislative Tracker, Freedom for All Americans, http://www.freedomforallamericans.org/category/legislative-tracker/ (last visited May 1, 2017).

[111] For a discussion on how support for RFRA has changed since its initial and the evolution of religious liberty. See Kyle C. Velte, All Fall Down: A Comprehensive Approach to Defeating the Religious Right’s Challenges to Antidiscrimination Statutes, 49 Conn. L. Rev. 1, 9 (2016)

[112] 735 F.3d 324, (2013).

[113] Id.at 327, 328.

[114] Id.at 326. Tagore’s kirpan qualify for any of the statutory exemptions. See § 930(d)(1)-(3) (providing exemptions for (1) government officers acting in “lawful performance of official duties,” (2) federal and military officials, “if such possession is authorized by law,” and (3) other persons, if possession is “incident to hunting or other lawful purposes”).

[115] Id. at 327.

[116] Id.at 330.

[117] The case settle after remand. See Allan Turner, Former IRS worker, U.S. reach agreement in ritual dagger case Houston Chronicle (2014), http://www.chron.com/news/houston-texas/houston/article/Former-IRS-worker-U-S-reach-agreement-in-ritual-5876549.php (last visited Apr 30, 2017).

[118] 18 U.S.C. § 930(g)(2) (“The term ‘dangerous weapon’ means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length.”).

[119] Id. at 330. See 18 U.S.C. 930(a)(imposing a fine and up to 1 year imprisonment).

[120] Id. at 330–31.

[121] Hankins, 441 F.3d at 97.

[122] Rev. John Paul HANKINS, Plaintiff-Appellant, v. THE NEW YORK ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH, the Stony Brook Community Church (United Methodist), and Bishop Ernest S. Lyght, Defendants-Appellees., 2008 WL 8045726 (C.A.2), 3 (“The Book of Discipline was adopted, and is subject to revision, by the General Conference of the Church, which convenes every four years and is the highest governing body of the Church…Under the Church’s Constitution, the General Conference has ‘full legislative power over all matters distinctively connectional…clerical retirement is a ‘connectional’ matter, and the General Conference has authority under the Constitution to fix a retirement age’”).

[123] Id. at 5

[124] Id. at 6 (Rev. Hankins had been appointed to the same church for 37 years).

[125] Id. at 7

[126] Id. at 103 (2d Cir. 2006) (stating that “[t]he RFRA’s language surely seems broad enough . . . . [t]he statutory language states that it ‘applies to all federal law, and the implementation of that law.’” (quoting 42 U.S.C. § 2000bb-3(a))); see also Worldwide Church of God v. Phila. Church of God, 227 F.3d 1110, 1120–21 (9th Cir. 2000) (allowing the Philadelphia Church of God to raise an affirmative defense under RFRA but then finding that it had failed to demonstrate that the generally applicable copyright laws imposed a “substantial burden” on the exercise of its religion); In re Young v. Crystal Evangelical Free Church, 141 F.3d 854, 863 (8th Cir. 1998) (permitting the church to assert RFRA as a defense against a trustee in bankruptcy); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 468–69 (D.C. Cir. 1996) (treating the EEOC and the private plaintiff alike in holding that Catholic University was allowed to claim a RFRA defense).

[127] Hankins v. Lyght, 441 F.3d 96, 102–03 (2d Cir. 2006) (“…RFRA must be deemed the full expression of Congress’s intent with regard to the religion-related issues before us and displace earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities.”).

[128] Id. at 109

[129] The court found that a RFRA defense exists in actions between private parties where (1) a federal law is at issue, and (2) the law can be enforced equally by the government or a private party. Id. at 103-104. (“The statutory language states that it ‘applies to all federal law, and the implementation of that law,’ 42 U.S.C. § 2000bb–3(a), and that a defendant arguing that such a law substantially burdens the exercise of religion ‘may assert [a violation of the RFRA] as a … defense in a judicial proceeding.’ Id. § 2000bb–1(c).”)

[130] 42 U.S.C. § 2000bb-4 (2006) (Laws failing in neutrality and general applicability are reviewed under strict scrutiny irrespective of RFRA. See Emp’t Div. v. Smith, 494 U.S. 872, 873 (1990)).

[131] The number of people employed since the decisions has nearly tripled and the number of stores have increase by 50%. See Our Company, HOBBY LOBBY, http://www.hobbylobby.com/about-us/our-story (last visited April 23, 2017).

[132] Id. at 2765.

[133] Hobby Lobby Stores, FORBES, http://www.forbes.com/companies/hobby-lobby-stores/ (last visited April 23, 2017). The Supreme Court’s decision cites the figures submitted to the Tenth Circuit, which appear to be out-of-date. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1122 (10th Cir. 2013) (noting that Hobby Lobby has 500 stores and 13,000 full-time employees).

[134] Id.

[135] Burwell v. HobbyLobby Stores, Inc., 134 S. Ct. 2751, 2767-69 (2014).

[136] The HHS Mandate provides for exemptions for traditional religious entities such as churches, integrated auxiliaries of churches, and associations of churches, as well as other nonprofits, religiously affiliated entities, such as charities and schools. See 45 C.F.R. § 147.131(a), (b) (2015) (“[A] ‘religious employer’ is an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”). See also 45 C.F.R. § 147.131(b), (c). Some religious nonprofits have sued under RFRA because they are still required to act by certifying and signing that they are using the accommodation of third-party coverage. Geneva Coll. v. Sec’y of Health & Human Servs., 778 F.3d 422 (3d Cir. 2015); Priests for Life v. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014); Mich. Catholic Conference v. Burwell, 755 F.3d 372 (6th Cir. 2014); Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012); Catholic Benefits Ass’n v. Burwell, No. CIV-14-685-R, 2014 WL 7399195 (W.D. Okla. Dec. 29, 2014); Colo. Christian Univ. v. Sebelius, 51 F. Supp. 3d 1052 (D. Colo. 2014); Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d 912 (N.D. Ind. 2013)).

[137] Id. at 2763.

[138] Id. at 2764.

[139] The Hobby Lobby Mission Statement states, “We are committed to: Honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles. Offering our customers exceptional selection and value. Serving our employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families. Providing a return on the family’s investment, sharing the Lord’s blessings with our employees, and investing in our community.”  See http://www.hobbylobby.com/about-us/our-story (last visited April 23, 2017).

[140] Id. at 2765-66. The term abortifacients refers to contraceptive methods that prevent a fertilized egg from adhering to a uterus. See Olga Khazan, Here’s Why Hobby Lobby Thinks IUDs Are Like Abortions The Atlantic (2014), https://www.theatlantic.com/health/archive/2014/03/heres-why-hobby-lobby-thinks-iuds-are-like-abortions/284382/ (last visited Apr 28, 2017).

[141] Id. at 2754–55. (“Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services.”)

[142] While it is true that regulations have been created that address the relationship between private business and religion, they have been focus on protecting the employee from discrimination by the private business—not exempting private business from obligation under the regulation. Title VII does afford certain religious organizations the right to discriminate on the basis of religion, to: “religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” 42 U.S.C. § 2000e-1 (2012) (Emphasis added).  In recent years the the Supreme Court has expanded the corporate “person” to include a First Amendment right to speech. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[143] Id. at 2765. (“Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of ‘person,’ which ‘include[s] corporations, … as well as individuals.’ 1 U.S.C. § 1. The Court has entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017. And HHS’s concession that a nonprofit corporation can be a ‘person’ under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of ‘person’ includes natural persons and nonprofit corporations, but not for-profit corporations.”)

[144] Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2755 (2014).

[145] Id. at 2759. The tax penalty is actually much lower than the cost of providing health insurance. Hobby Lobby had the choice of not providing health insurance, which would have resulted in considerable savings for the company.  The corporation argued that this would place them at a competitive disadvantage, however Hobby Lobby could have passed that savings to employees through higher wages.  Given that there were viable options available to Hobby Lobby the finding that the madidate scheme coerced for-profit companies to take actions that violated their religious beliefs are suspect and out of alignment with prior holdings. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Braunfeld v. Brown, 366 U.S. 599 (1961). The court found that the options were too speculative, stating, “it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty.” Id. at 2751. However, in doing so the court ignored that the burden is on the RFRA claimant to establish the burden is substantial, not mere provide some plausible scenario which may be substantial.

[146] Id. at 2778. (“This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs ) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).”)

[147] See Brett H. McDonnell, The Liberal Case for Hobby Lobby, 57 Ariz. L. Rev. 777, 777 (2015) (Illustrating the distance between the employer and the offending contraceptives, “The corporations are not being forced to buy contraceptives for themselves, nor are they supplying contraceptives directly to their employees. They are paying insurers to provide payment for medical services and items. If an employee asks for contraception and her doctor chooses to write a prescription, the insurer will then pay for them. The employer is pretty far removed from the decision to use the contraceptives.”)

[148] See Molly Ball, How Hobby Lobby Split the Left and Set Back Gay Rights The Atlantic (2014), https://www.theatlantic.com/politics/archive/2014/07/how-hobby-lobby-split-the-left-and-set-back-gay-rights/374721/ (last visited Apr 30, 2017); See also, House Introduces Bill to Modify RFRA to Prevent Discrimination and Harm, American Civil Liberties Union, https://www.aclu.org/news/house-introduces-bill-modify-rfra-prevent-discrimination-and-harm (last visited Apr 30, 2017).

[149]  Neal Gorsuch wrote a concurring opinion for the Tenth Circuit en banc decision in Hobby Lobby indicating that not only did he side with the owners, he emphasized that the courts should not evaluate that the credibility of the belief and should be in the business of protecting religious exercise.  See Garrett Epps, Gorsuch’s Selective View of ‘Religious Freedom’ The Atlantic (2017), https://www.theatlantic.com/politics/archive/2017/03/gorsuchs-selective-view-of-religious-freedom/520104/ (last visited Apr 30, 2017).

[150] Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2755 (2014).

[151] 201 F.Supp.3d 837, (2016).

[152] Id.at 843.

[153] Mission Statement, RG & GR Harris Funeral Homes and Cremation Services: Mission Statement, http://www.rggrharris.com/_mgxroot/page_10769.php (last visited Apr 30, 2017).

[154] Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837, 844 (E.D. Mich. 2016). (The EEOC found a separate unlawful discrimination practice that was not initiated with this case.  It was dismissed as not related to this case and for the EEOCs failure to investigate.  Male employees received free suits, ties, and an additional monetary supplement for clothing, where women did not, “the Commission found probable cause to believe that the Respondent discriminated against its female employees by providing male employees with a clothing benefit which was denied to females, in violation of Title VII of the Civil Rights Act of 1964, as amended.”)

[155] Id. at 844-845.

[156] Id.at 845-846.

[157] Id. at 840.

[158] Id.at 840. (Based on Stephans’ intent to dress in women’s clothing while working). See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[159] Id.at 870.

[160] Id.at 850. (“…while this Court does not often see cases where there is direct evidence to support a claim of employment discrimination, it appears to exist here.”)

[161] Id.at 856.

[162] Id.at 857.

[163] Id.at 857 (quoting Hobby Lobby, 134 S.Ct. at 2778 (emphasis in original).)

[164] Id.at 857. (The Court goes on to discuss that Rost was a Christian and that the Funeral Home website makes religious references as well as Rost’s purported basis for discrimination, “Rost believes that the ‘Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex.’”).

[165] It is worth pointing out that Rost did not assert the RFRA defense in his initial filings, the complaint was amended five months later to include the RFRA defense and there was no religious objection mentioned in the EEOC investigation.See EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Aimee Stephens, Intervenor-Appellant, v. R.G. & G.R. HARRIS FUNERAL HOME, INC., Defendant-Appellee., 2017 WL 1406688 (C.A.6) (“Rost submitted an affidavit in which he stated that he had fired Ms. Stephens because she intended to violate the Funeral Home’s gendered dress code by dressing as a woman.  At the time he fired Ms. Stephens and throughout the EEOC’s investigation of her discrimination claim, Rost made no mention of religion.”)

[166] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2783, 189 L. Ed. 2d 675 (2014) (In response to the dissents concerns that the decision could be used justify other workplace discrimination, “Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”)

[167] Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837, 856 (E.D. Mich. 2016).

[168] Id.at 859.

[169] The court did not make this assumption because of the ease with which this prong is met, rather, it made this assumption because it did not understand how to evaluate it based on the analysis provided in the Hobby Lobby decisions. Id.at 859 (“The Court fails to see how the EEOC has met its requisite “to the person”-focused showing here. But this Court is also at a loss for how this Court is supposed to scrutinize “the asserted harm of granting specific exemptions to [the] particular religious claimant” and “look to the marginal interest in enforcing” the challenged law in this particular context. Hobby Lobby, 134 S.Ct. at 2779. This Court will therefore assume without deciding that the EEOC has met its first burden and proceed to the least restrictive means burden.”)

[170] The court speculates that the EEOC did not attempt to complete this analyses because it presumed that Title VII preempted a RFRA defense and did not consider the need to complete the analysis.  Id. at 858-859.

[171] Id.at 860.

[172] “In the Court’s view, RFRA demands accommodation of for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”  Burwell, 134 S. Ct. at 2787 (Ginsburg, J., dissenting).

[173] S. REP. No. 103–111, at 12-13 (1993), reprinted in 1993 U.S.C.C.A.N. at 1903. The House Report on RFRA contains nearly identical language. See H.R. REP. No. 103–88, at 7 (1993) (“Nothing in this bill shall be construed as affecting Title VII of the Civil Rights Act of 1964.”).

[174] City of Boerne v. Flores, 521 U.S. 507 (1997). Following the Boerne decision, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to cc-5 (2012) (RLUIPA) to allow institutionalized persons increased rights to engage in conduct required of adherents to a religion and to protect religious assemblies from discriminatory land use regulations or zoning codes.

[175] Id.at 511.

[176] Id. at 532. (“Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.”)

[177] 42 U.S.C. §§ 2000cc to cc-5 (2012).

[178] Id.

[179] Marci Hamilton, The Court after Scalia: The complex future of free exercise SCOTUSblog (2016), http://www.scotusblog.com/2016/09/the-court-after-scalia-the-complex-future-of-free-exercise/ (last visited Apr 27, 2017).

[180] See Angela Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 BYU L. Rev. 275, 310-12 (1993) (citing decisions by the supreme courts of Minnesota and Washington State).

[181] See RFRA Map, Protect Thy Neighbor, http://www.protectthyneighbor.org/rfra (last visited Apr 28, 2017) (Providing a 50 state listing of RFRA state constitutional amendments and legislation, both enacted and pending).

[182] See David Badash, Georgia Senate Overwhelmingly Passes Anti-Gay ‘Religious Freedom’ Bill The New Civil Rights Movement, http://www.thenewcivilrightsmovement.com/davidbadash/georgia_senate_overwhelmingly_passes_anti_gay_religious_freedom_bill (last visited Apr 28, 2017).

[183] See Jason Goldman, Religious Freedom: Why States Are Unconstitutionally Burdening Their Own Citizens As They “Lower” the Burden, 2015 Cardozo L. Rev. de novo 57, 58 (2015)

[184] Gillette v. United States, 401 US 437, 449 (1971).

[185] Wisconsin v. Yoder, 406 US 205, 218-21 (1972).

[186] See Gillette, 401 U.S. at 449 (“An attack founded on disparate treatment of “religious” claims invokes what is perhaps the central purpose of the Establishment Clause — the purpose of ensuring governmental neutrality in matters of religion.”); Everson v. Bd. of Education, 330 U.S. 1, 18 (1947) (“[The First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.”).

[187] Locke v. Davey, 540 U.S. 712, 718 (2004); Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970).

[188] See Walz v. Tax Comm’n, 397 U.S. 664, 673 (1970) (“The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.”).

[189] See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (holding ordinances subject to strict scrutiny where effect of prohibiting ritual animal slaughter by religious society but applicable to secular animal killings).

[190] See Lee v. Weisman, 505 U.S. 577, 587 (1992) (“The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.”)

[191] The Establishment Clause cannot prohibit the government from protecting the Free Exercise clause when special burdens are found to impact religion and not impact secular conduct.

[192] See, e.g., Marci A. Hamilton, The Religious Freedom Restoration Act Is Unconstitutional, Period, 1 U. Pa. J. Const. L. 1, 11 (1998) (“The Establishment Clause provides a ceiling that does not permit the government significant room within which to expand religious liberties.”); See also Ira C. Lupu, The Trouble with Accommodation, 60 Geo. Wash. L. Rev. 743, 751, 753 (1992) (“Claims to permissive accommodations always raise Establishment Clause questions, because their underlying theory is that government is free to respond beneficially to religion-specific concerns.”)

[193] See supra note 26 and accompanying text.

[194] See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335, 107 S. Ct. 2862, 2868, 97 L. Ed. 2d 273 (1987) (“Lemon’s “purpose” requirement aims at preventing the relevant governmental decisionmaker…from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.”)

[195] Id. at 2869 (“For a law to have forbidden “effects” under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence.”)

[196] Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

[197] See Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) (IRS employee of the Sikh faith successfully asserted RFRA to allow her to wear a knife, as required by her faith, to work in a Federal building, resulting in a change of written policy for the agency).

[198] Id. at 264-65.

[199] See Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 712 (1985) (O’Connor, J., concurring) (“Since Title VII calls for reasonable rather than absolute accommodation and extends the requirement to all religious beliefs and practices … I believe an objective observer would perceive it as an anti-discrimination law rather than an endorsement of religion or a particular religious practice.”). See also Id. at 711 (Holding that a Connecticut statute requiring employers to excuse employees from working on days observed as their Sabbath violates the Establishment Clause, noting that there is “no exception under the statute for special circumstances, such as the Friday Sabbath observer employed in an occupation with a Monday through Friday schedule-a school teacher, for example; the statute provides for no special consideration if a high percentage of an employer’s work force asserts rights to the same Sabbath. Moreover, there is no exception when honoring the dictates of Sabbath observers would cause the employer substantial economic burdens or when the employer’s compliance would require the imposition of significant burdens on other employees required to work in place of the Sabbath observers. Finally, the statute allows for no consideration as to whether the employer has made reasonable accommodation proposals.”)

[200] Id. at 710

[201] Id.

[202] Id. at 712

[203] Id.

[204] The Substantial Burden standard imposed by RFRA is a greater standard than merely showing a de minimis burden under Title VII, that standard does not evaluate the ways in which an accommodation burdens the religion, rather it looks at the ways the accommodation burdens the employer. While there is some variance between the circuits as to what exact standard applies, there is no indications that courts view the standard to meet the low threshold of the de minimis standard. See, Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996); Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489 (6th Cir. 1995); Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995). (Holding that the burden must touch central tenets of the faith); See also Goodall v. Stafford Cnty. Sch. Bd., 60 F.3d 168 (4th Cir. 1995); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995) (Holding that the burden must violate the party’s faith); See also, See, e.g., Small v. Lehman, 98 F.3d 762, 767-68 (3d Cir. 1996); Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995); Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (Holding that the burden must be both central to and violatively of).

[205] 42 U.S.C. § 2000bb-1 (“Government shall not substantially burden a person’s exercise of religion…except …if it demonstrates that application of the burden to the person–(1) is in furtherance of a compelling governmental interest…”) (Emphasis added).

[206] Id. (“…the least restrictive means of furthering that compelling governmental interest.”) (Emphasis added).

[207]  TWA v. Hardison , 432 U.S. 63, 89 (1977).

[208] See Hardison v. TWA , 357 F. Supp. 879 (W.D. Mo. 1974).

[209] E.g., Protos v. Volkswagen of Am., 797 F.2d 129 (3d Cir. 1986); United States v. Board of Educ., Philadelphia , 50 FEP 71 (E.D. Pa. 1989), aff’d in part and rev’d in part, 911 F.2d 882, 53 FEP 1077 (3d Cir. 1990); EEOC v. Ithaca Indus. , 849 F.2d 116, 46 FEP 1730 (4th Cir. 1988); McDaniel v. Essex Int’l, Inc. , 696 F.2d 34, 30 FEP 831 (6th Cir. 1982); Endres v. Indiana State Police , 349 F.3d 922, 92 FEP 1678 (7th Cir. 2003); Tooley v. Martin-Marietta Corp. , 648 F.2d 1239, 26 FEP 95 (9th Cir. 1981).  But see Isaac v. Butler’s Shoe Corp., 511 F. Supp. 108 (N.D. Ga. 1980)  (holding that the reasonable accommodation requirement violates all three prongs of Lemon).

[210] 643 F.2d 445 (7th Cir. 1981).

[211] Id. at 454.

[212] Id. (quoting Gillette v. United States, 401 U.S. 437, 453).

[213] Id. at n.12.

[214] Id. at 455.

[215] Agostini v. Felton, 521 U.S. 203, 233 (1997) (explaining that the excessive entanglement prong of Lemon is “an aspect of the inquiry into a statute’s effect” as required under the second prong).

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