December 01, 2020 | 95 Wash. L. Rev. 1673
Dallan F. Flake
When Congress amended Title VII of the Civil Rights Act in 1972 to require employers to reasonably accommodate employees’ religious practices absent undue hardship to their business, it intended to protect employees from being forced to choose between their jobs and their religious beliefs. Yet in the decades since, courts have cut away at this right to the point it is practically nonexistent. Particularly concerning is the growing tendency of courts to read reasonableness out of the accommodation requirement, either by conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it would cause the employer undue hardship, by setting the bar for reasonableness so low it is practically meaningless, or by ignoring the requirement altogether. Consequently, employers today have near carte blanche over whether and how to provide religious accommodations—a power imbalance that often forces employees into the precise dilemma from which Congress sought to protect them.
This Article argues for the restoration of employees’ right to reasonable religious accommodations. It does so by asserting that reasonableness under Title VII is a standalone requirement, separate and distinct from undue hardship, that must be evaluated from the employee’s perspective. An accommodation should be deemed reasonable to the employee only if it (1) fully eliminates the conflict between the employee’s job and religion, (2) does not cause the employee to suffer an adverse employment action, and (3) avoids unnecessarily disadvantaging the employee’s terms or conditions of employment. This conceptualization of reasonableness aligns with Congress’s intent and, if adopted, would help level the playing field between employers and employees in this increasingly critical area of law.Download Full Article
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