Better Disabled than Devout

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    Better Disabled than Devout? Why Title VII
         Has Failed to Provide Adequate
      Accommodations Against Workplace
             Religious Discrimination

                                   By Keith S. Blair ∗

                                  I. Introduction
     Imagine you suddenly have become disabled and you are
now confined to a wheelchair. Being confined to a wheelchair,
however, has not prevented you from holding a full-time job in
which you thrive. Further imagine that your employer does not
provide a ramp or some other accommodation for you to enter
the building. You and most of society would find that
unreasonable and, indeed, the Americans with Disabilities Act
(ADA) would probably mandate that you be accommodated.
     Now imagine that you are a devout follower of a religion
and that your religious beliefs mandate that you must wear a
particular piece of clothing. One would expect that, based on
workplace anti-discrimination statutes, some accommodation
would be made so that you could wear the clothing. One also
might expect that your religious beliefs would be given at least
the same protection that the ADA would provide you were you
disabled. That expectation might not be met however.
     On June 8, 2009, the Civil Rights Division of the United
States Department of Justice filed suit on behalf of the United
States of America pursuant to Title VII of the Civil Rights Act
of 1964 in the United States District Court for the District of

        Associate Professor of Law and Director, Low-Income Tax Clinic, University of the
District of Columbia, David A. Clarke School of Law, B.A. 1982; Andrews University,
J.D., 1993, Brooklyn Law School. At the time this article was written, Professor Blair was
an Assistant Professor of Law at the University of Baltimore School of Law. Funding for
this article was provided by a University of Baltimore Educational Foundation Summer
Research Fellowship. Professor Blair would like to thank his wife, Faith Blair, for her
unending support.

516                     ARKANSAS LAW REVIEW                         [Vol. 63:515
New Jersey against Essex County, New Jersey. 1 The Justice
Department alleged that Essex County discriminated against
Yvette Beshier on the basis of her religion, Islam, when Essex
County failed to reasonably accommodate her religious practice
of wearing a Muslim headscarf. 2 Essex County has a uniform
policy that does not allow the wearing of a headscarf. 3 Ms.
Beshier was suspended and ultimately fired for not complying
with the County’s dress requirements. 4
      Although Ms. Beshier was successful before the Equal
Employment Opportunity Commission (EEOC) and the Justice
Department agreed to file suit on her behalf, her chances in
federal court are not as clear-cut as they appear. That is because
while employers must offer a reasonable accommodation to
employees who face conflicts between workplace obligations
and religious obligations, the Supreme Court has severely
limited how burdensome those accommodations can be on
      One of the greatest legislative achievements of the
twentieth century was the Civil Rights Act of 1964. Title VII of
the bill was enacted in an attempt to eradicate discrimination in
the workplace. The main focus of the bill was racial
discrimination, but protections were included for color, sex, and
national origin. Subsequent to the Act’s passage, religion was
added as a protected category under Title VII.
      Religious discrimination is the category of discrimination
that has been the hardest for courts, employers, and employees
to deal with. Discrimination that is based on race is relatively
easy to spot and, in theory, to remedy. The same is true of
discrimination based on sex, national origin, or color. Religion
is different. First, employees who sue because of discrimination
based on race, color, sex, or national origin are seeking to be
treated the same as other employees. They want the ability to get
a job, keep a job, and be paid the same as everyone else.

     1. See Complaint, United States v. Essex Cnty., Civ. Action No. 09-2772 (KSH),
2010 WL 551393 (D. N.J. Feb. 16, 2009), available at
essexctycomp.pdf (last visited Sept. 19, 2010).
     2. Id. ¶ 5(a), at 2.
     3. Id. ¶ 5(b), at 2.
     4. Id. ¶ ¶ 5(b)-(c), at 2.

2010]         BETTER DISABLED THAN DEVOUT                     517
      Employees who seek redress for discrimination based on
their religion do not want to be treated the same. Instead, they
wish not to work a particular day or shift; or they wish to wear a
particular piece of religious clothing that does not conform to
company policy; or they wish to groom themselves in ways that
meet a religious obligation but that conflict with a workplace
rule. Employees who complain of religious discrimination want
to be treated differently—or “accommodated”—so that they can
meet both their religious and work obligations.
      Employment discrimination claims that arise on account of
religion can generally be classified into three primary areas.
The first area of such claims concerns conflicts between work
requirements and holy day or Sabbath observances. Employees
in these cases wish to have time off in order to observe a day of
worship. Next are the dress claims, which involve religious-
clothing requirements. Employees in these cases generally seek
to wear an article of clothing that does not conform to an
employer’s uniform or dress policy. Finally, there are the
grooming claims, where an employee needs to be groomed in a
particular manner to meet a religious obligation, but where the
grooming conflicts with an employer’s policy. These cases arise
frequently and are sometimes difficult to resolve.
      Employers seek to have workplaces that are as free from
conflict as possible. Accommodating employees who have
religious needs not only affects the religious employee but
affects the nonreligious employee who might be asked to work
overtime to cover the religious employee’s absence on a day of
worship. It also affects other religious employees who might
not have the need for an accommodation but who feel as if the
employer is favoring the religion of the employee who has been
      Despite the perceived challenges that accommodating the
needs of religious employees pose, there are benefits to meeting
those challenges. The United States is an extremely diverse
country. We celebrate the fact that our society is a melting pot.
We value the wide variety of thought that our diverse society
brings. The conversation in the public square is richer because
we include multiple races, colors, gender, and nationalities in the
public conversation on the issues of the day. Similarly, the
inclusion of the multitude of religions in our society at large

518                     ARKANSAS LAW REVIEW                         [Vol. 63:515
enriches society. Inclusion of the views of people of faith adds
another bit of diversity to the melting pot.
      Just as society benefits from the inclusion of diverse voices
and thoughts, the workplace also benefits from diversity. That
was recognized by the passage of Title VII. Although the main
impetus of the Civil Rights Act was to stop discrimination, part
of the push came from people’s realization that the inclusion of
all members of society in the workplace benefits all society.
      Despite the passage of Title VII and the inclusion of
religion as a protected category, religious discrimination in the
workplace persists. Between 1997 and 2009, claims of
employment discrimination on account of a worker’s religion
increased eighty-two percent, while claims of discrimination
based on race or color increased only sixteen percent during the
same period. 5 Similarly, claims of sex discrimination increased
only fifteen percent, 6 and age discrimination increased fifty-five
percent. 7 Minority religions became especially vulnerable to
discrimination after the September 11, 2001 attacks on the
United States. Because of the importance of protecting the
rights of religious workers, the accommodation of these workers
must be revisited.
      The United States Supreme Court has examined workplace
religious discrimination in two cases, Trans World Airlines, Inc.
v. Hardison 8 and Ansonia Board of Education v. Philbrook. 9
Those two cases have shaped the law of religious discrimination
in employment. Because of those cases, courts view what must
be done to accommodate the needs of religious employees
through the lens of the employer, not the employee. No

      5. See Race-Based Charges, FY 1997-FY 2008, U.S. EQUAL EMPLOYMENT
visited Sept. 19, 2010).
      6. See Sex-Based Charges, FY 1997-FY 2008, U.S. EQUAL EMPLOYMENT
visited Sept. 19, 2010).
      7. See Age Discrimination in Employment Act (includes concurrent charges with
COMM’N, (last visited Sept. 19,
      8. 432 U.S. 63 (1977).
      9. 479 U.S. 60 (1986).

2010]            BETTER DISABLED THAN DEVOUT                  519
employee is entitled to claim an accommodation that would pose
a burden on the employer’s ability to run his business. 10
     Rather than looking at the accommodation through the eyes
of the employer, however, this paper argues that courts and
employers should look at the accommodation through the eyes
of the employee. The religious-discrimination provision of Title
VII is an accommodation to the employee, not to the
employer. 11 The legislative history of Title VII shows that the
drafters of the bill had the needs of the religious employee at the
forefront of their efforts. 12 The Supreme Court, in Hardison and
Philbrook, has shifted the focus of the accommodation
incorrectly to the employer rather than to the employee.
     Requiring that any accommodation be viewed from the
viewpoint of the employee, however, does not mean that the
employee gets a free pass. The employee must genuinely work
with the employer to ensure that the accommodation enables the
employee to meet both his religious and professional obligations
and that the employer is able to operate its business efficiently
and free of conflict. 13 The employee might need to mitigate
some of the cost of the accommodation. 14
     Part II of this article examines the history of Title VII and
how religion became a protected category. It also reviews
Hardison and Philbrook and the ways in which the Supreme
Court shaped the view of what is a reasonable accommodation
and discusses whether that view conforms to the legislative
intent of Title VII and the amendments to it that added religion
as a protected class. 15
     Part III of the piece examines how reasonable
accommodations are handled in the ADA. The ADA provides
that employers must provide a reasonable accommodation to
employees who have disabilities. 16               The reasonable-
accommodation regime of the ADA differs from Title VII in the
burden placed on employers under the ADA. 17 This section first

    10.   See id. at 68.
    11.   See 42 U.S.C. § 2000e(j) (2006).
    12.   See infra Part II.B.
    13.   Philbrook, 479 U.S. at 69.
    14.   See, e.g., 80-81 (Stevens, J., concurring).
    15.   See infra Parts II.C-E.
    16.   42 U.S.C. § 12112(b)(5)(A) (2006).
    17.   See infra Part III.B.

520                     ARKANSAS LAW REVIEW       [Vol. 63:515
examines how the ADA handles accommodations and then
urges that this regime should be used in Title VII religious-
discrimination cases. It also addresses some of the criticisms of
using this regime in Title VII religion cases. 18
      Part IV examines how the law has treated reasonable
accommodations in light of Hardison and Philbrook. It
examines the current test for religious discrimination claims and
will examine the duty of the employee under those claims. 19
The section then looks at types of accommodations that are
made and not made under the current law. 20 It then reviews
Title VII religion cases and examines how Hardison and
Philbrook       have      affected     reasonable-accommodation
jurisprudence. 21 It then looks at how the accommodations might
look if the ADA standard for reasonable accommodations were
adopted for Title VII religious-discrimination cases. 22
      Part V looks at the constitutional issues involved with
requiring more accommodation of religious employees.
Because religion is protected pursuant to the First Amendment,
restricting or favoring religion implicates the constitutional
concerns. 23 This part concludes that the Establishment Clause
does not pose a problem for the increased accommodation of
religious employees that would occur if the ADA reasonable-
accommodation standard were adopted for Title VII religion
cases. 24 It then analyzes the First Amendment and finds that
there is constitutional justification for expanding the Title VII
reasonable accommodation regime to match the ADA
standard. 25 Finally, the section looks at the religious-liberty
issues involved with using the ADA standard for reasonable
accommodations. 26
      Part VI then concludes that Title VII should be amended to
adopt the ADA standard for reasonable accommodation. 27

    18.   See infra Part IV.B.
    19.   See infra Part IV.A.
    20.   See infra Parts IV.A-B.
    21.   See infra Part IV.B.
    22.   See infra Part IV.C.
    23.   See infra Part V.
    24.   See infra Part V.A.
    25.   See infra Part V.B.
    26.   See infra Part V.C.
    27.   See infra Part VI.

2010]          BETTER DISABLED THAN DEVOUT                                       521
Religious employees who face conflicts between workplace
requirements and their religious beliefs and practices need to
have greater protection than is currently given them. The Court
has spoken on what the current law requires, so it is up to the
legislative branch to provide this protection.

            II. The History of Title VII and Its Amendments
      Congress enacted the Civil Rights Act of 1964 to combat
racial discrimination in the United States. 28 The Act contained
numerous titles that addressed distinct forms of discrimination. 29
Title VII of the Civil Rights Act of 1964 was enacted to give
workers broad protection from discrimination in employment. 30
Title VII provides, in relevant part, that it is unlawful 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.” 31
      The Civil Rights Act of 1964 was passed because of the
vision of President John F. Kennedy, who pledged to protect
workers from discrimination based on race, creed, or ancestry. 32
The resulting legislation, passed after President Kennedy’s
assassination, provided protection not only for race, creed, or
ancestry but for color, religion, or sex. 33 Although the final
version of Title VII included protection from a broad range of
discrimination, Title VII was envisioned as a way to combat
discrimination based on race. 34 There is little legislative history
explaining why religious discrimination was added to Title
VII. 35

     28. H.R. Rep. No. 88-914 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2393, 1963
WL 4735, at *3-4.
     29. See 42 U.S.C. §§ 1981 to 2000h-6 (2006).
     30. 42 U.S.C. § 2000e to 2000e-17.
     31. 42 U.S.C. § 2000e-2(a)(1).
     32. See H.R. Rep. No. 88-914, reprinted in 1964 U.S.C.C.A.N. 2391, 2391-92, 1963
WL 4735, at *2.
     33. 42 U.S.C. § 2000e-2(a)(1).
     34. James A. Sonne, The Perils of Universal Accommodation: The Workplace
Religious Freedom Act of 2003 and the Affirmative Action of 147,096,000 Souls, 79 NOTRE
DAME L. REV. 1023, 1034 (2004).
     35. Id.

522                     ARKANSAS LAW REVIEW                           [Vol. 63:515
     The EEOC issued guidelines in 1966 that stated that
accommodation of religious employees should be made unless
the accommodation would be a “serious inconvenience” to the
employer’s business. 36 The next year the EEOC modified the
guidelines, stating that employers must accommodate
employees’ religious needs unless the accommodation would be
an undue hardship to the employer. 37

          A. The Early History of Religious Accommodation
     An example of the treatment that religious discrimination
claims received in the courts can be found in Dewey v. Reynolds
Metals. 38 Dewey was employed by the Reynolds Metals
Company as a dye repairman. 39 He started his employment with
Reynolds in 1951 and became a member of the Faith Reformed
Church in 1961. 40 Reynolds had collectively bargained an
overtime agreement with the labor union representing its
employees. 41 That agreement required that “[a]ll employees
shall be obligated to perform all straight time and overtime work
required of them by the Company except when an employee has
a substantial and justifiable reason for not working.” 42
     Dewey never volunteered for overtime work on Sundays,
his Sabbath. 43 Nevertheless, he was scheduled for work on
Sunday, November 21, 1965. 44 He refused the work assignment
because of his religious beliefs, was given a warning, and was
told that it was necessary for the company to maintain a seven-
day work week. 45 Dewey was subsequently scheduled to work

     36. 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, 581 (2000) (citing 29 C.F.R. § 1605.1 (1968)).
     37. Id.
     38. 429 F.2d 324 (6th Cir. 1970), aff’d by an equally divided court, 402 U.S. 689
(1971), superseded by statute, 42 U.S.C. § 2000e(j) (2006), as recognized in Smith v. Pyro
Min. Co., 827 F.2d 1081, 1087 (6th Cir. 1987).
     39. Id. at 329.
     40. Id.
     41. Id. at 327.
     42. Id. at 328. It is arguable that, even absent Title VII, Dewey had a “substantial
and justifiable reason for not working” and should not have been required to work overtime
on his Sabbath pursuant to the collective bargaining agreement.
     43. Dewey, 429 F.2d at 329.
     44. Id.
     45. Id.

2010]           BETTER DISABLED THAN DEVOUT                                         523
five Sundays between January and August 1966. 46 He did not
report to work but obtained replacements for those days. 47
However, because of his beliefs he declined on August 28, 1966
to obtain a work replacement. 48 This continued for the next two
Sundays. 49 Dewey was subsequently fired for violation of plant
rules. 50
     Dewey sued Reynolds for employment discrimination
because of his religious beliefs. 51 The district court found that
the collective-bargaining decision that mandated the overtime
was discriminatory in its impact, and found for Dewey. 52 The
Sixth Circuit reversed the district court, finding that Reynolds
had provided a reasonable accommodation to Dewey by
providing a replacement system. 53

                             B. Congress’s Response
     As a result of the decision in Dewey, Senator Jennings
Randolph introduced legislation to amend Title VII.54 Randolph
was a Seventh Day Baptist and was alarmed at the inconsistent
Title VII decisions with respect to religious discrimination. 55
Senator Randolph believed that the courts were not adhering to
the original intent of the Civil Rights Act of 1964, and his
amendment meant to codify what he believed was the original
intent. 56 Specifically, Senator Randolph wanted to protect

      46. Id.
      47. Id.
      48. Dewey, 429 F.2d at 329. Dewey apparently believed that not only was it a sin for
him to work on the Sabbath but also for him to obtain a replacement to work for him. See
id. at 330. This belief is not unique to Dewey. See, e.g., Smith v. Pyro Mining Co., 827
F.2d 1081, 1084 (6th Cir. 1987).
      49. Dewey, 429 F.2d at 329.
      50. Id.
      51. Id. at 327.
      52. Id. at 329.
      53. Id. at 331.
      54. Sonne, supra note 34, at 1039.
      55. See id.; Robert A. Caplen, Note, A Struggle of Biblical Proportions: The
Campaign to Enact the Workplace Religious Freedom Act of 2003, 16 FLA. J.L. & PUB.
POL’Y 579, 584-85 (2005).
      56. See Sonne, supra note 34, at 1039; Caplen, supra note 55, at 584-85.

524                     ARKANSAS LAW REVIEW                 [Vol. 63:515
Sabbatarians from religious discrimination in the workplace. 57
Congress subsequently passed the amendment. 58
     The amendment tracked the EEOC guidelines that were
published in 1967 in that it codified the requirement that
employers provide a reasonable accommodation for the religious
needs of their employees. 59 The amendment, however, did not
provide guidance as to what constituted a reasonable
accommodation except that the accommodation could not pose
an undue hardship.
     The amendment also modified the definition of religion in
the statute. The statute now defined the elements of religion that
must be accommodated to include “all aspects of religious
observance and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate an
employee’s or prospective employee’s religious observance or
practice without undue hardship on the conduct of the
employer’s business.” 60

            C. The Supreme Court’s Response—TWA v.
      The Supreme Court was finally able to take up the issue of
religious discrimination and Title VII in 1977 in Trans World
Airlines, Inc. v. Hardison. 61 Larry Hardison was hired as a clerk
by Trans World Airlines (TWA). 62 Hardison was a clerk in a
department that operated twenty-four hours a day, 365 days a
year. 63 Subsequent to his hiring, Hardison became a member of
the Worldwide Church of God. 64 One of the basic tenets of the
Worldwide Church of God is the observance of a Sabbath from
sundown Friday until sundown Saturday. 65 Because of this
belief, Hardison informed TWA that he would not be able to

      57. Sonne, supra note 34, at 1039 (quoting 118 CONG. REC. 705-06 (1972)
(statement of Sen. Randolph)), Caplen, supra note 55, at 584-85.
      58. See 42 U.S.C. § 2000e(j) (2006).
      59. 42 U.S.C. § 2000e(j).
      60. 42 U.S.C. § 2000e(j).
      61. 432 U.S. 63 (1977).
      62. Id. at 66.
      63. Id.
      64. Id. at 67.
      65. Id.

2010]           BETTER DISABLED THAN DEVOUT                                          525
work during those times. 66 Hardison was initially able to avoid
working on his Sabbath. 67 However, because of seniority rules
that were present in contracts that TWA had collectively
bargained with its unions, Hardison was ultimately required to
work on Saturdays. 68
      Hardison was fired on the grounds of insubordination
because he would not work on Saturday. 69 He sought relief
under Title VII, asserting that his discharge constituted religious
discrimination, that his union had not adequately represented
him in the matter with TWA, and that he had been deprived of
his right to exercise his religion. 70 The United States District
Court ruled in favor of TWA and the union, finding: (1) the
union’s seniority rules could not be trumped by the duty to
accommodate Hardison; and (2) TWA had reasonably
accommodated Hardison and further accommodation would
have been an undue hardship. 71 The Court of Appeals for the
Eighth Circuit reversed the judgment of the district court,
finding that TWA had not met its burden to accommodate
Hardison. 72
      The Supreme Court reversed the Eighth Circuit Court of
Appeals, finding instead for TWA. 73 The Court attempted to
analyze the legislative history of Title VII and the EEOC
guidelines. 74 The Court determined that “the employer’s
statutory obligation to make reasonable accommodation for the
religious observances of its employees, short of incurring an
undue hardship, is clear, but the reach of that obligation has
never been spelled out by Congress or by EEOC guidelines.” 75
      The Court found that the collectively bargained seniority
agreement was not unlawful under Title VII and could not be

     66. Hardison, 432 U.S. at 67-68.
     67. Id. at 68.
     68. Id.
     69. Id. at 69.
     70. Id.
     71. Hardison, 432 U.S. at 69-70.
     72. Id. at 70. Additionally, the court found that Hardison had not directly challenged
the district court’s judgment in favor of the union and affirmed without passing on the
merits of Hardison’s case. Id.
     73. Id. at 85.
     74. See id. at 71-72.
     75. Id. at 75.

526                     ARKANSAS LAW REVIEW                        [Vol. 63:515
ignored to accommodate an employee’s religious needs. 76 The
Court further held that requiring TWA to incur more than a de
minimis cost in accommodating Hardison would be an undue
hardship under Title VII. 77

                           D. The EEOC’s Response
     The Hardison decision was not well received by some
members of Congress. 78 Attempts were made to amend Title
VII to change “undue hardship” to “severe material hardship.” 79
Ultimately, the EEOC held hearings that resulted in new
guidelines for religious discrimination, which went into effect in
1980. 80 The new guidelines stated that an employer could not
claim an undue hardship simply based on a “mere assumption”
that additional employees would request and require
accommodations if the employer were to accommodate one
employee for religious reasons. 81 The new guidelines also
stated that there was not a set definition of “undue hardship” or
“reasonable accommodation,” but that the definition depended
on various factors including the size of the employer, the
number of employees who needed accommodation, and the
employer’s operating costs. 82
     Given that the EEOC’s guidelines were a response to
Hardison, it is no surprise that the guidelines required more
accommodation than Hardison. 83 The guidelines had suggested
accommodations for employees who had work conflicts because
of their religious practices. 84 In addition to setting guidelines
for what a reasonable accommodation would be, the guidelines
also stated that an undue hardship could occur only when an
employer was able to show an actual hardship, not merely a
hypothetical or anticipated hardship. 85 Finally, the guidelines

     76. Hardison, 432 U.S. at 80-81.
     77. Id. at 84-85 (“To require TWA to bear more than a de minimis cost in order to
give Hardison Saturdays off is an undue hardship.”).
     78. Caplen, supra note 55, at 592.
     79. Id.
     80. Id. at 593-94; H.R. 8670, 95th Cong. (1977).
     81. 29 C.F.R. § 1605.2(c)(1) (1981).
     82. 29 C.F.R. § 1605.2(e)(1).
     83. Kaminer, supra note 36, at 591 & n.108.
     84. 29 C.F.R. § 1605.2(d).
     85. 29 C.F.R. § 1605.2(c)(1).

2010]          BETTER DISABLED THAN DEVOUT                                        527
defined “religious practices” broadly so as to include moral and
ethical beliefs that are sincerely held. 86
     The broad definition of religion in the guidelines meant that
employers no longer were able to question whether a belief or
practice was religious or a necessary part of a particular religion.
Employers were, however, now allowed to question the sincerity
of the employee’s religious belief. 87 Courts, however, have not
embraced the broad reading of religion contemplated by the
EEOC and have not been receptive to offering protection for
ethical beliefs that are not associated with a religious tenet. 88

      E. The Supreme Court Speaks Again—Ansonia Board
                 of Education v. Philbrook
     The Supreme Court had an opportunity to revisit religious
discrimination in Ansonia Board of Education v. Philbrook. 89
Ronald Philbrook taught classes in a public high school in
Ansonia, Connecticut. 90 Subsequent to his hiring, he became a
member of the Worldwide Church of God. 91 The Worldwide
Church of God required that its members not work on
designated holy days, which caused Philbrook to miss about six
work days a year. 92 The school board and teachers union
negotiated a collective-bargaining agreement that provided for
eighteen days of sick leave per year. 93 Three sick days could be
used for the observance of religious holidays. 94 Philbrook
requested that the school board allow him either to use three
days of personal-business leave to observe the holy days or to
pay the cost of a substitute teacher for days that were not

     86. 29 C.F.R. § 1605.1 (1981).
     87. Karen Engle, The Persistence of Neutrality: The Failure of the Religious
Accommodation Provision to Redeem Title VII, 76 TEX. L. REV. 317, 386 (1997).
     88. Maxine M. Harrington, The Ever-Expanding Health Care Conscience Clause:
The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs, 34
FLA. ST. U. L. REV. 779, 796-97 (2007); James M. Oleske, Jr., Federalism, Free Exercise,
and Title VII: Reconsidering Reasonable Accommodation, 6 U. PA. J. CONST. L. 525, 535-
36 (2004).
     89. 479 U.S. 60 (1986).
     90. Id. at 62.
     91. Id.
     92. Id. at 62-63.
     93. Id. at 63.
     94. Philbrook, 479 U.S. at 63-64.

528                     ARKANSAS LAW REVIEW                          [Vol. 63:515
covered by the collective-bargaining agreement. 95 The school
board rejected both alternatives but allowed Philbrook to take
unpaid leave on those days. 96 The Supreme Court held that
while permitting unpaid leave would generally be a reasonable
accommodation, such a policy would be discriminatory if an
employer permitted paid leave to be used flexibly for all
purposes except religious ones. 97 It further held that there was
no need for an employer to choose the accommodation that the
employee prefers. 98 Rather, once an employer has offered any
reasonable accommodation, the employer has met its burden. 99
     After Philbrook, employers need only show that they
offered a reasonable accommodation to an employee. It need
not be the accommodation preferred by the employee or the
most advantageous to the employee. 100 Philbrook seemed to
look at reasonableness through the eyes of the employer rather
than the employee. 101 This interpretation of Title VII relieves
employers of any obligation to work with an employee to come
up with an accommodation that solves the employee’s
problems. 102
     This reading of Title VII seems to contravene the
congressional intent with respect to protecting religious
employees’ rights. 103      Senator Randolph introduced the
amendment to section 701(j) of Title VII specifically to deal
with situations like those addressed in Hardison. 104
Additionally, the legislative history, while admittedly slim, does

      95. Id. at 64-65.
      96. Id.
      97. Id. at 71. The Second Circuit Court of Appeals had previously held that the
school board had offered Philbrook a reasonable accommodation but held that Title VII did
not permit the board to reject Philbrook’s proposal—which was also reasonable—without
demonstrating that the accommodation would pose an undue hardship. See Philbrook v.
Bd. of Educ., 757 F.2d 476, 484 (2d Cir. 1985). The court remanded the case, ordering the
district court to determine whether accepting “either of [Philbrook]’s proposed
accommodations would cause undue hardship.” Id. at 485.
      98. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68, 69 n.6 (1986).
      99. Id. at 68.
      100. Id. at 69 n.6, 70.
      101. Bilal Zaheer, Accommodating Minority Religions Under Title VII: How Muslims
Make the Case for a New Interpretation of Section 701(J), 2007 U. ILL. L. REV. 497, 513
      102. Id.
      103. Id. at 517-19.
      104. 118 CONG. REC. 705, 705-06.

2010]         BETTER DISABLED THAN DEVOUT                                 529
provide guidance as to what might or might not constitute an
“undue hardship.” 105
     Indeed, the legislative history seems clear that the intent of
the amendments was to negate the need of employees to choose
between their jobs and the exercise of their faith. 106 According
to the legislative history, an accommodation would not be
reasonable if an employee had to make this choice. 107 Departing
from the legislative history, Hardison and Philbrook turned the
tables on the amendment and made the employer rather than the
employee the focus of the inquiry. 108
     Given that the Supreme Court has not addressed the issue
of religious employment discrimination since Philbrook, it is not
surprising that the lower courts have followed the standards set
forth in Hardison and Philbrook. This has resulted in lower
courts’ finding an undue hardship if an accommodation would
result in any cost to the employer. 109

             III. Reasonable Accommodations Under the
                  Americans With Disabilities Act
     The key to protecting the ability of religious employees to
resolve conflicts between their religious obligations and
workplace obligations lies in a revisiting of the reasonable-
accommodation regime that evolved after Hardison and
Philbrook. Although Title VII, its legislative history, and EEOC
guidelines all contemplate an expansive reading of what
constitutes a reasonable accommodation, there has been
anything but an expansive reading. 110 The level of effort that is
required of employers when providing a reasonable
accommodation is so slight as to be non-existent. Employees,
meanwhile, face numerous challenges as they try to acquire

     105. See id. at 706.
     106. Zaheer, supra note 101, at 518.
     107. See 118 CONG. REC. 705, 705-06 (1972).
     108. Nantiya Ruan, Accommodating Respectful Religious Expression in the
Workplace, 92 MARQ. L. REV. 1, 16-17 (2008).
     109. 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, 547 (1989); Ruan, supra note 108, at 16-17.
     110. See supra Part II.

530                     ARKANSAS LAW REVIEW                            [Vol. 63:515
     Numerous commentators have embraced the approach
toward reasonable accommodations in Title II of the ADA,
which is codified at sections 12131 to 165 of title 42 of the
United States Code. 111 The ADA is instructive in how it deals
with accommodations to persons with disabilities.           The
similarities in religious discrimination and discrimination
against people with disabilities also make the approach taken in
the ADA a good model for Title VII accommodations.112

        A. Similarities between Religious Discrimination and
              Discrimination Based on Disability
      Although people of faith have faced challenges in the
workplace, those challenges are usually not a result of irrational
discrimination on the basis of their religion. The discrimination
is generally a result of economics and workplace harmony. For
example, if a Sabbatarian wishes not to work on her day of
worship, her employer may deny the request because he cannot
find someone to work for her without having to pay the other
employee overtime. 113 The denial, therefore, is not based on the
religion of the employee but on the economics of the situation.
      Similarly, if an employee wishes to groom herself in a
particular manner despite workplace rules against the grooming,
the employer risks the other employees’ feeling as if the
religious employee were given favored treatment because of her
religion. While the views of the employees who were not given
the accommodation probably would not alone be enough to be a
de minimis cost, they will in all likelihood be factored into the
calculation that the employer makes when assessing the cost of
the accommodation.

     111. See generally Carlos A. Ball, Preferential Treatment and Reasonable
Accommodation under the Americans with Disabilities Act, 55 ALA. L. REV. 951 (2004);
Peter D. Blanck, The Economics of the Employment Provisions of the Americans with
Disabilities Act: Part I-Workplace Accommodations, 46 DEPAUL L. REV. 877 (1997);
Michelle A. Travis, Lashing Back at the ADA Backlash: How the Americans with
Disabilities Act Benefits Americans without Disabilities, 76 TENN. L. REV. 311 (2009).
     112. There have been numerous attempts in Congress to pass the Workplace
Religious Freedom Act as a response to Hardison and Philbrook. The Workplace
Religious Freedom Act is based, at least in part, on the ADA. Although there are
similarities between the proposal put forth in this paper and the Workplace Religious
Freedom Act, this paper takes no position on the passage of the Act nor does it endorse the
     113. See, e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 68-69 (1977).

2010]           BETTER DISABLED THAN DEVOUT                                           531
      Discrimination based on disability and the goals of the
ADA are similar to employment discrimination based on
religion and the goals of Title VII. Employers generally
discriminate against disabled persons not because they are
disabled but for economic reasons. 114 Employers refuse to
accommodate disabled persons because the employers do not
wish to spend the money to make their workplaces accessible to
disabled employees.
      Religious discrimination and discrimination based on
disability also are similar in that they are treated differently than
the other Title VII categories. Title VII does not require an
accommodation for race, gender, or national origin. More
importantly, Title VII attempts to eradicate the irrational,
invidious discrimination based on race, gender, and national
origin. 115
      Title VII, as it deals with religious discrimination, shares
with the ADA the same goal of protecting certain individuals
even if it means that an employer will bear an additional cost. In
adopting Title VII and the ADA, Congress that society and the
workplace would be better if these employees were fully able to
participate in the workplace despite having a need for an
accommodation based on either a religious belief or disability.
      Despite these similarities, the accommodations provisions
of Title VII and the ADA have differed in their application. The
Title VII provisions have been construed very narrowly, 116
while the ADA provisions have been construed more broadly. 117

             B. The ADA and Reasonable Accommodation
     The ADA prohibits discrimination against qualified
individuals who are able to perform essential job functions “with

available at
     115. See supra notes 30-31 and accompanying text.
     116. See supra Part II.
     117. It should be noted that the ADA has been amended to provide greater
accommodation to persons with disabilities. ADA Amendments Act of 2008, Pub. L. No.
110-325, § 2, 122 Stat. 3553, 3553 (2008) (effective Jan. 1, 2009). This piece will not deal
with the amended version of the ADA as the amendments provide an even greater
accommodation for persons with disabilities than recommended in this piece.

532                     ARKANSAS LAW REVIEW                     [Vol. 63:515
or without reasonable accommodation.” 118             A person is
considered disabled if she is “substantially limit[ed]” in at least
one “major life activit[y]” by “[a] physical or mental
impairment,” has “a record of . . . impairment,” or is perceived
as impaired. 119
     The ADA provides that an employer may not discriminate
against “a qualified individual with a disability.” 120 A qualified
individual is one with a disability “who, with or without
reasonable accommodation, can perform the essential
functions” of the relevant “employment position.” 121 An
employer discriminates under the ADA when it does not make a
reasonable accommodation for a qualified employee’s known
physical or mental limitations unless the employer can show that
the accommodation would impose an undue hardship on the
employer’s business. 122
     An undue hardship is defined in the ADA as an action
requiring “significant difficulty or expense.” 123 Factors that
may be considered in determining if an undue hardship exists
include: (1) the nature and cost of the accommodation; (2) the
financial resources of the business; (3) the overall size of the
business, including the number and location of the facilities; and
(4) the operation of the business, including the composition of
its workforce. 124 In addition to the statute, the EEOC has
provided guidance as to how “reasonable accommodations” and
“undue hardship” should work in practice. 125
     The seminal Supreme Court case dealing with reasonable
accommodation in the ADA context is U.S. Airways, Inc. v.
Barnett. 126 In Barnett, an employee, Barnett, transferred to a
less physically demanding position in the mailroom because of a

    118. 42 U.S.C. § 12111(8) (2006).
    119. 29 C.F.R. § 1630.1(g) (2010).
    120. 42 U.S.C. § 12112(a) (2006).
    121. 42 U.S.C. § 12111(8).
    122. 42 U.S.C. § 12112(b)(5)(A).
    123. 42 U.S.C. § 12111(10)(A) (2006).
    124. 42 U.S.C. § 12111(10)(B).
    125. Sonne, supra note 34, at 1047 (citing 2 EEOC COMPL. MAN. § 902, at 6908A,
5467-6, 5467-28 5467-31 (2003)); see also Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, U.S.
accommodation.html (last visited Sept. 11, 2010).
    126. 535 U.S. 391 (2002).

2010]           BETTER DISABLED THAN DEVOUT                                           533
disability. 127 Subsequently, Barnett learned that he would not be
able to keep the position because of a union seniority system. 128
Barnett ultimately lost his job when U.S. Airways would not
make an exception to the seniority rules. 129 Barnett sued under
the ADA asserting, inter alia, that the mailroom position was a
reasonable accommodation for his disability and that U.S.
Airways discriminated against him when it did not allow him to
keep the position. 130
      The district court found for U.S. Airways on summary
judgment, holding that breaking the seniority system would be
an undue hardship for U.S. Airways. 131 The Court of Appeals
for the Ninth Circuit reversed and held for Barnett, finding that
the seniority system was only a factor to be considered in the
analysis of undue hardship. 132
      During the analysis of the parties’ arguments with respect
to what would constitute a reasonable accommodation in this
case, the Supreme Court, in response to U.S. Airways’
arguments, stated that “[b]y definition any special
‘accommodation’ requires the employer to treat an employee
with a disability differently, i.e., preferentially.” 133 In other
words, a reasonable accommodation is not one that treats the
employee neutrally. Rather, it gives employees opportunities to
function in the workplace, which they would not have had
without the accommodation. The accommodation is not neutral
because employees who are not disabled are not given the same
      As the Court further reasoned, “neutral” rules would be of
little help to employees who need accommodation. The
employee who cannot travel higher than the ground floor is not
helped by a neutral office-assignment policy. 134 A neutral rule
regarding spending on office furniture does not help the
employee who needs an ergonomic desk or chair because of a

    127.   Id. at 394.
    128.   Id.
    129.   Id.
    130.   Id. at 394-95.
    131.   Barnett, 535 U.S. at 395 (quoting opinion of the district court).
    132.   Id. (quoting U.S. Airways, Inc. v. Barnett, 228 F.3d 1105, 1120 (9th Cir. 2000)).
    133.   Id. at 397.
    134.   Id. at 397-98.

534                      ARKANSAS LAW REVIEW                           [Vol. 63:515
disability. 135 Thus, while neutral workplace rules that are
generally applicable are to be considered when formulating a
reasonable accommodation, they are not the end of the
analysis. 136
      The Supreme Court also rejected Barnett’s interpretation of
reasonable accommodation. Barnett urged the Court to interpret
the reasonable-accommodation provisions so that the word
“reasonable” is synonymous with the word “effective.” 137 The
Court rejected this interpretation.138 While an accommodation
must be effective if it is to eliminate the impediment that the
employee is facing, that has no bearing on the accommodation’s
reasonableness. 139 The Court ultimately reversed and remanded
the case back to the court of appeals for further proceedings in
light of the reasoning of the Court. 140
      An example of the ADA reasonable accommodation
regime after Barnett comes from a recent case in the First
Circuit, Tobin v. Liberty Mutual Insurance Co. 141 In Tobin, the
plaintiff was a salesman suffering from bipolar disorder. 142
Tobin had many deficiencies as a salesman because of his
disorder. 143 He asked his employer to transfer him to a certain
type of account that he felt would accommodate his disability. 144
Liberty Mutual refused the transfer in part because of Tobin’s
past performance as a salesman. 145 The court of appeals dealt
with the plaintiff’s performance and how it affected a reasonable
accommodation by relying on Barnett, stating that an
accommodation cannot be deemed unreasonable solely because
the employee has failed to meet standard eligibility
requirements. 146 While the court noted that the existence of an
impersonal seniority system might mean that a transfer could

     135.   Id. at 398.
     136.   See Barnett, 535 U.S. at 398.
     137.   Id. at 399.
     138.   See id. at 400-01.
     139.   See id.
     140.   Id. at 406.
     141.   553 F.3d 121 (1st Cir. 2009).
     142.   Id. at 124-25.
     143.   Id. at 126.
     144.   Id. at 127.
     145.   Id. at 125.
     146.   Tobin, 553 F.3d at 137 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397

2010]          BETTER DISABLED THAN DEVOUT                                       535
upset another employee’s expectation of fair and uniform
treatment, it also found that no such system was in place at
Liberty Mutual. 147
      The court next dealt with whether the accommodation of
moving Tobin to a different position with more responsibility
would be an undue hardship to Liberty Mutual. 148 The court
recognized that moving the employee to the new position might
have been a risk for the company but that Liberty Mutual would
have been able to mitigate those risks. 149
      This approach to reasonable accommodation and undue
hardship is vastly different than the approach taken in Title VII
religious discrimination cases.         Under the ADA regime,
although an employer may present credible evidence that
moving the employee to a new position would have been a
hardship, that is not the end of the analysis. 150 Under Title VII,
the analysis stops when the employer is able to prove that the
accommodation would have presented more than a de minimis
burden. 151 Under the ADA, however, more is required of the
employer than just presenting evidence that there would be a
cost to accommodate the employee.
      The First Circuit in Tobin treated the ADA as a normative
statute whose purpose is to provide an opportunity for disabled
workers to function in the workplace. While the needs of
employers are taken into account, those needs do not rise above
the goals of the ADA.
      Modeling the Title VII employment-discrimination
reasonable-accommodation regime after the ADA has been
criticized. The main criticisms against such a change are that:
(1) Title VII has little legislative history when compared to the
ADA; and (2) the ADA has a definitional limitation on the
number of persons covered, numbering 43 million in 1990,
while Title VII has no such limitation and could reach the entire
American workforce. 152 This paper addresses each argument in

     147. Id. at 137-38
     148. Id. at 140.
     149. Id. at 140-41.
     150. See supra notes 111-14 and accompanying text.
     151. See supra Part II.C.
     152. Sonne, supra note 34, at 1050, 1069-70 & n.282. Professor Sonne also lists
other reasons that are specific to the Workplace Religious Freedom Act. This paper will

536                     ARKANSAS LAW REVIEW                            [Vol. 63:515
     First, it is true that the ADA’s legislative history is more
extensive than the legislative history of Title VII religious
discrimination. That does not mean, however, that the intent
behind adding religion to Title VII is less clear than the ADA or
is ambiguous. The statements of Senator Randolph make quite
clear why he offered the amendments to Title VII.153 Given
those statements and the Dewey decision that were the impetus
behind the amendments, the reasoning and intent of the
amendments are clear if not extensive. 154 Senator Randolph
wished to enable people of faith to practice their faith and meet
workplace obligations without fear of losing their jobs. While
what constituted a reasonable accommodation was not defined
in the statute, the EEOC did attempt to define “reasonable
accommodation” based on its understanding of what Congress
was trying to accomplish. 155
     The second argument against treating religious-
discrimination claims like ADA claims deals with the scope of
the ADA versus the scope of Title VII. The argument appears to
be that the number of employees who can claim religious
discrimination is not limited by definition as it is in the ADA,
and that, accordingly, the reasonable-accommodations scheme
should not be expanded. 156 The argument fails to acknowledge,
however, that changing the Title VII reasonable-accommodation
regime does not change the number of persons who are covered.
That is, it presumes that workers will for some reason wish to
bring religious-discrimination claims when they have no reason
to do so.
     Professor Sonne also criticizes applying the ADA approach
to religious accommodations because doing so would raise the
burden on employers 157 because the ADA uses “significant

not address those arguments, as it is not advocating for the passage or defeat of the Act.
Rather, this paper is merely recommending that Title VII religious employment
discrimination claims be treated the same as ADA claims.
      153. See 118 CONG. REC. 705-6 (1972). Senator Randolph stated “[I]t is my desire,
and I hope the desire of my colleagues, to assure that the freedom from religious
discrimination in the employment of workers is for all time guaranteed by law.” Id. at 705.
      154. See supra Part II.A.
      155. See Guidelines on Discrimination Because of Religion, 40 Fed. Reg. 72610
(Oct. 31, 1980) (codified at 29 C.F.R. pt. 1605).
      156. See Sonne, supra note 34, at 1050.
      157. Id. at 1051.

2010]           BETTER DISABLED THAN DEVOUT                                          537
difficulty or expense” where Title VII uses “undue hardship.” 158
In other words, an employer must offer an accommodation
under the ADA more frequently than under Title VII. Under the
ADA an accommodation must be offered unless that
accommodation poses significant difficulty or expense. 159 The
ADA formulation is an attempt to balance the accommodation
of the employee with the needs of the employer. This balance,
however, has been criticized. 160
      Sonne discusses accommodations that have been deemed
reasonable under the ADA and concludes that the extra cost and
expense of adopting the ADA standard in Title VII cases would
not be in the best interest of employers. 161 For example, hiring a
reader for an employee with a vision disability, providing
private parking for an employee with a walking disability, and
supplying a text telephone for a hearing-impaired employee
have been considered reasonable accommodations under the
ADA, even though the employers had to bear the cost of the
accommodation. 162 Because these accommodations are more
than the de minimis standard of Hardison, Professor Sonne looks
disfavorably on them. 163
      However, the de minimis standard of Hardison has proved
to be a way for employers to avoid making more than token
accommodations for employees who have conflicts between
their faith and their work obligations. 164 It is true that
employers would bear an extra cost in accommodating these
employees, 165 but that cost would be balanced by the benefit of
having a workplace that respects religious pluralism.
      Had the ADA standard been applied in Hardison, the result
would almost certainly have been different. Had TWA
accommodated Hardison in his preferred way, it would have
incurred a cost of $150 per month for three months. 166 It is

     158. See id.
     159. Id. at 1053-54.
     160. Id. at 1052.
     161. Sonne, supra note 34, at 1054.
     162. Id.
     163. See id.
     164. See Ruan, supra note 108, at 17.
     165. Sonne, supra note 34, at 1055.
     166. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 92 n.6 (1977) (Marshall, J.,
dissenting). It is unclear why $150 was not a de minimis cost even under the majority’s

538                     ARKANSAS LAW REVIEW                         [Vol. 63:515
unlikely that $150 would have been considered a “significant
difficulty or expense,” 167 and Hardison would have been
accommodated. The extra cost to the company should not have
been enough to deny Hardison an accommodation so that he
could have kept both his religious and work commitments.
      Even accommodations that do not have direct financial
costs are not looked on kindly under Title VII. 168 Analysis of
those accommodations under the ADA standards would mean
that employers’ burdens would increase from the current Title
VII standard. 169 Under the ADA, accommodations such as
involuntary shift swaps, mandated breaks, or transfer of duties
might well be required in order to meet the “significant
difficulty or expense” standard for accommodations. 170 Again,
this increased “burden” on employers just brings balance to the
accommodation regime.

       IV. Reasonable Accommodation Under Title VII Is
      Not Reasonable and Would Benefit from the ADA
     The Hardison and Philbrook cases have created a
landscape for employees that is counter to the intent of Title VII.
The amendments to Title VII that added religion as a protected
category were enacted to ensure that employees with religious
and workplace conflicts would be able to resolve the conflicts in
a way that would enable the employees to meet both sets of
obligations. 171 While not all conflicts could be resolved in favor
of the employee’s religious obligations, the focus was squarely
on how to help the employee. 172                 The reasonable-
accommodation regime that has evolved has taken the focus off
helping the employee resolve the conflict. Instead, the focus is
on how to minimize the burden on the employer in resolving the

      167. 42 U.S.C. § 12111(10)(A) (2006) (defining an undue hardship).
      168. Sonne, supra note 34, at 1055-56 (discussing “shift and job preferences” and
efficiency losses).
      169. Id. at 1055.
      170. Id.
      171. Ruan, supra note 108, at 16.
      172. Id.

2010]           BETTER DISABLED THAN DEVOUT                                        539
      Although Title VII seems to require a broad reading of
accommodation, courts have been reluctant to read it broadly. 173
Courts generally find either that if an employer were to provide
an accommodation that the employer would suffer a hardship, or
that any accommodation provided by an employer is
sufficient—and therefore reasonable—and meets the standards
of Title VII. 174 Judges have generally not been willing to
require deviation from rules of general or neutral applicability in
religion cases despite Title VII’s seemingly broad mandate. 175
      By using the approach toward reasonable accommodation
that the ADA uses, employees who are facing conflicts between
their religious practices and workplace rules will have a more
even playing field when attempting to negotiate an
accommodation. The approach taken by the ADA requires more
of an accommodation by the employer. This section looks at
how Title VII currently handles accommodations and suggests
how required accommodations might be different if the ADA
approach were used.

                         A. Current Test under Title VII
      The test for proving a case of religious discrimination is
fairly straightforward. In order to prove a prima facie case, an
aggrieved employee must prove: (1) that he has a religious
practice, belief, or observance that conflicts with a requirement
of employment; (2) that the practice, belief or observance is
required because of a bona fide belief of the employee; (3) that
the employer has actual notice of the conflict; and (4) that the
employee has suffered or will suffer an adverse employment
action because of the employee’s noncompliance with the
employment requirement. 176 This test is usually not where the

      173. See Engle, supra note 87, at 392.
      174. Id.
      175. Id.
      176. Steven D. Jamar, Accommodating Religion at Work: A Principled Approach to
Title VII and Religious Freedom, 40 N.Y.L. SCH. L. REV. 719, 743 (1996); see also Reed v.
Int’l Union, United Automobile, Aerospace and Agric. Implement Workers of Am., 569
F.3d 576, 580 (6th Cir. 2009); Webb v. City of Philadelphia, 562 F.3d 256, 259 (3d Cir.
2009); E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008);
Bowles v. N.Y.C. Transit Authority, 285 F. App’x 812, 813 (2d Cir. 2008); Morrissette-
Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1320 (11th Cir. 2007); Ellis v.
Principi, 246 F App’x 867, 872 (5th Cir. 2007).

540                     ARKANSAS LAW REVIEW                          [Vol. 63:515
problem arises for employees however. It is the next step in the
process of employment-discrimination claims where employees
usually fail.
      After the employee makes a prima facie case, the employer
must show that it has made a good-faith effort to accommodate
the employee’s beliefs. 177 If the attempt to accommodate the
beliefs was unsuccessful, the employer must show that it was
not reasonably possible to accommodate the employee without
an undue hardship. 178 The hardship required to defeat the
request for an accommodation is minimal because of Hardison
and Philbrook, which established that a hardship means only a
de minimis cost to the employer. 179
      For religious employees who seek an accommodation by
their employers to meet religious obligations, the Hardison and
Philbrook decisions could not have been less welcome. An
employer’s responsibility to accommodate an employee’s
religious needs has been narrowed to such an extent that the
employer can meet its burden merely by offering a token
accommodation. 180 As a result, many accommodations sought
by employees have been found to create an undue burden. 181

                               B. Duty to Cooperate
      The slim legislative history of Title VII contemplated that
employees and employers would work together in order to
achieve an accommodation that balanced the employee’s
religious need and the employer’s need to run a business. 182
This cooperation not only would have spread the burden more
equitably, but would also have contributed toward creating a
workplace that contains diverse viewpoints. Despite the
anticipated cooperation, the religious employee seems to be the
party who bears the greatest burden in obtaining an
accommodation. Because of the de minimis undue hardship
standard of Hardison and Philbrook, employers need not do

     177. Jamar, supra note 176, at 743.
     178. Id.
     179. Id.
     180. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986); Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).
     181. See, e.g. Trans World Airlines, Inc. 432 U.S. 63; Ansonia Bd. of Educ. 479 U.S.
     182. Ansonia Bd. of Educ., 479 U.S. at 69.

2010]          BETTER DISABLED THAN DEVOUT                                        541
much to accommodate the needs of employees who have a
religious conflict at work.
      If an employee does not cooperate with his employer in
attempting to reach an accommodation, he has no chance of
being successful in a religious discrimination claim. 183 Courts
have recognized this duty of an employee to cooperate in finding
a reasonable accommodation. In a Massachusetts case, an
employee filed a complaint against her employer after she was
fired for wearing facial piercings at work. 184 The employee
claimed that she needed to be groomed in that manner because
of her religious beliefs. 185 The First Circuit ruled in favor of the
employer, finding it would place an undue hardship on the
employer to require him to allow the plaintiff to wear her facial
jewelry. 186 The First Circuit, quoting from the district court
opinion, stated, “[T]he search for a reasonable accommodation
goes both ways. Although the employer is required under Title
VII to accommodate an employee’s religious beliefs, the
employee has a duty to cooperate with the employer’s good faith
efforts to accommodate.” 187
      Requiring an employee to cooperate in the fashioning of a
reasonable accommodation is fair. It also does not undermine
the goal of looking at the religious and workplace conflict
through the eyes of the employee. The cooperation requirement
actually places the employee on equal footing with the
employer. It offers the employee respect in that it makes him an
equal partner in the effort to solve the problem. Focusing solely
on how the accommodation affects the employer without any
input from the employee on the accommodation marginalizes
religious employees and their needs.
      A question related to the employee’s duty to cooperate is
how much does an employee have to cooperate? Or, as one
commentator puts it, does an employee have to compromise his

      183. Kaminer, supra note 36, at 598.
      184. Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 130 (1st Cir. 2004).
      185. Id.
      186. Id. at 137
      187. Id. at 131 (quoting Cloutier v. Costco Wholesale Corp., 311 F. Supp. 2d 190,
198 (D. Mass. 2004)); see also Jones v. United Parcel Serv., Inc., 307 F. App’x 864, 866
(5th Cir. 2009) (quoting Bruff v. N. Miss. Health Services, Inc., 244 F.3d 495, 501 (5th
Cir. 2001) (“An employee has a duty to cooperate in achieving his accommodation of his
or her religious beliefs”)).

542                     ARKANSAS LAW REVIEW                          [Vol. 63:515
religious beliefs? 188 A minority of courts have stated that an
employee may be required to compromise his religious beliefs in
order to meet the duty to compromise. 189 Those courts,
however, appear to take the position that religious belief and
practices are like a cafeteria menu where an employee can pick
and choose which beliefs he wants to observe. 190 This position
thus makes it easier for courts to say that an employee must
compromise his religion and that an employer need not
accommodate the employee. 191
      This lack of respect for the needs of employees is further
evidenced by the fact that an employer can meet its obligation of
reasonably accommodating an employee even if it is an
accommodation that is not favored by the employee. In other
words, the employee must cooperate in crafting an
accommodation but the employer does not have to cooperate
with the employee.            The employer may offer any
accommodation that it deems reasonable. 192 Again, cooperation
need not mean that the employee’s preferred method of
accommodation will always be chosen. But if the duty to
cooperate were also a requirement on the employer, this would
help ensure that employees’ needs were truly being considered
in the crafting of an accommodation.
      Despite the imposition of the cooperation requirement,
employees do not need to compromise their religion as part of
an accommodation. A majority of courts have held that the
employee’s duty to compromise is not synonymous with a duty
to compromise his religion. 193 This view seems consistent with
the legislative intent of Title VII. 194 Indeed, it would be
incongruous with Title VII to require an employee to
compromise a religious belief in order to accommodate a
religious conflict.

     188. Kaminer, supra note 36, at 597.
     189. Id. at 599.
     190. Id.
     191. Id.
     192. See Bruff, 244 F.3d 495 at 501 (“Once the Medical Center establishes that it
offered Bruff a reasonable accommodation, even if that alternative is not her preference,
they have, as a matter of law, satisfied their obligation under Title VII.”).
     193. Kaminer, supra note 36, at 600.
     194. See supra Part II.A-B.

2010]          BETTER DISABLED THAN DEVOUT                                        543
     The current law on reasonable accommodation and the duty
of cooperation does offer the employee one glimmer of
sunshine: If an employer does not offer an accommodation to
the employee, the duty of the employee to cooperate is not
triggered. 195

         C. Accommodations That Do Not Directly Implicate
                   Financial Concerns
      An important element of the reasonable accommodation
regime is that the accommodation must eliminate the conflict
between the employee’s religious requirements and the
employer’s work requirements. 196 This circumstance generally
comes into play when an employee is offered a shift swap as an
accommodation for time off for a religious need.197
      One commentator who discusses the courts treatment of
shift swaps indicates that the courts are “ambivalent” toward
religious-accommodation claims. 198 Shift swaps are similar to
day-of-worship accommodations, but not identical. 199 Shift
swaps occur when an employee needs a day off for a religious
observance, and the employer allows the employee to swap
shifts with another employee rather than granting leave
directly. 200
      Federal district courts favor voluntary shift swaps and
generally view them as a reasonable accommodation for Title
VII purposes. 201 A shift swap that does, in fact, eliminate the
conflict between the employee’s need for religious time off and
the employer’s job requirements is a reasonable
accommodation. 202 The thorny issue with shift swaps arises

     195. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481,1488-89 (10th Cir. 1989) (citing
Brener Diagnostic Ctr. Hosp., 671 F.2d 141, 146 (5th Cir. 1982); Anderson v. Gen.
Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir. 1978)).
     196. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 (1986).
     197. Kaminer, supra note 36, at 605.
     198. Id. at 606.
     199. Id. at 605.
     200. Id.
     201. See Beadle v. Hillsborough Cnty. Sheriff’s Dep’t., 29 F.3d 589, 593 (11th Cir.
1994), Moore v. A.E. Staley Mfg. Co., 727 F. Supp 1156, 1161 (N.D. Ill. 1989); Kaminer,
supra note 36, at 606.
     202. See Beadle, 29 F.3d at 591, 593 (finding that the employee was afforded a
reasonable accommodation even though he could only negotiate a shift swap on two

544                     ARKANSAS LAW REVIEW                          [Vol. 63:515
when the employer suggests a shift swap in an attempt to
accommodate the employee but no one is willing to swap shifts.
Courts have found that this circumstance is still a reasonable
accommodation. 203
      From a purely legal standpoint, the shift-swap
accommodation does appear to be reasonable even if there is no
employee readily available to swap shifts. However, from a
policy viewpoint, this situation is problematic. If one of the
goals of Title VII is to enable religious employees to practice
their faith, within reason, while keeping their jobs, 204 the shift
swap solution does not achieve that goal if no second employee
is willing to swap. That would place the “religious” employee
in the position of having to choose between his job and his faith,
which is contrary to the goals of Title VII.
      In summary, courts have taken a pro-employer view of
what constitutes a reasonable accommodation. This narrow
view is contrary to the congressional intent for Title VII
religious-employment-discrimination cases. 205

     D. Religious Discrimination Claims Are Different than
   Claims Based on Race, Color, Sex, or National Origin
     While there are similarities between discrimination based
on religion and discrimination based on race, color, sex, or
national origin, 206 religious discrimination also demonstrates
some unique differences. 207         Those differences require a
different type of analysis than that which is done for the other
classifications of section 701(j). 208
     People of faith who claim religious discrimination in the
workplace are seeking an accommodation. They wish to work a
different shift, or not to work a particular day, or to wear
something that nonreligious employees are not allowed to wear.
In other words, they wish to be treated differently. Employers

occasions); Kaminer, supra note 36, at 604-05 (citing Ansonia Bd. of Educ. v. Philbrook,
479 U.S. 60, 70 (1986)).
     203. Kaminer, supra note 36, at 605-06; see Beadle, 29 F.3d at 591, 593.
     204. See Ruan, supra note 108, at 15.
     205. Id.; see also Kaminer, supra note 36, at 606.
     206. See, e.g., Tseming Yang, Race, Religion, and Cultural Identity: Reconciling the
Jurisprudence of Race and Religion, 73 IND. L.J. 119, 120-21 (1997).
     207. See Jamar, supra note 176, at 742.
     208. See id.

2010]           BETTER DISABLED THAN DEVOUT                                          545
have a duty to accommodate those needs. Employees who claim
workplace discrimination based on race, color, sex, or national
origin are seeking the opposite—they wish to be treated the
same. 209
      Although the Title VII religion cases focus mostly on the
accommodation of the employee, employers use neutrality as a
defense for making accommodations. 210 While neutrality is a
principle applied in cases that deal with discrimination in the
other Title VII classifications, it is not an intuitive principle in
the religion context, as there is a mandate for employers to
accommodate their employees. 211
      Professor Engle has examined neutrality in the Title VII
religion cases and has found two trends. One is that courts will
consider a workplace rule neutral because it does not
discriminate against any particular religion and, in fact,
disallows all religious practices. 212 This neutrality, however,
ignores the fact that Title VII contemplates that employees will
and should be treated differently in order to resolve conflicts
between religious practice and workplace rules.
      Additionally, the goal of Title VII is not to disallow all
religious practices. The goal is to allow religious practices as
best as possible. Focusing on whether other religious employees
receive the same accommodation misses the point.                 An
Orthodox Jewish employee might need a day-of-worship
accommodation while a Muslim employee would not. The fact
that the Muslim employee does not need an accommodation for
a day of worship should have no bearing on whether the
Orthodox Jewish employee receives the accommodation.
      Additionally, the question of whether all religions have
been treated the same focuses on the employer’s perceived need
to have religious neutrality in the workplace. Although an
accommodation should not favor one religion over another, an

      209. See id.
      210. Engle, supra note 87, at 392.
      211. Id.
      212. Engle, supra note 87, at 392 (citing United States v. Bd. of Educ., 911 F.2d 882
(3d Cir. 1990)). Professor Engle relates a case where a federal appeals court upheld the
dismissal of a Muslim teacher for wearing religious garb. The court found that if the
teacher had been accommodated, the school district would have run afoul of a state law
banning the wearing of anything that indicated the teacher was a member of a particular
religion. United States, 911 F.2d 882, 891 (3d Cir. 1990).

546                     ARKANSAS LAW REVIEW              [Vol. 63:515
accommodation is not suspect if it only reaches one religion. 213
The focus, instead, should be on the need to ensure that the
religious employee is able to meet both his religious and
workplace obligations. That focus is in keeping with the goals
of Title VII. 214
      Another view of neutrality is that courts may deny claims
on the grounds that the employee was treated the same as other
employees. 215 This claim of neutrality, however, does not
acknowledge that religious employees have a need to be treated
differently through an accommodation.

           E. Religious Discrimination is Not the Same as
                  Status-Based Discrimination
      As one commentator discusses, the principal similarity
between discrimination based on religion and the other forms of
discrimination is that the discrimination is based on the status of
the person. 216 Just as a person can face discrimination for her
status as a person of color, or as a woman, or as a person of
Indian descent; a Muslim, or Jew, or Hindu may face
discrimination based on her status of being identified with the
particular religion. 217 However, the vast majority of religious
discrimination claims are not based on the religious status of the
individual. Rather, the claims are based on the individual’s
practice, belief, or observance.
      An example of a practice-based religious discrimination
claim would be one where an employee wished to have time off
because of a day of worship, similar to the employee in
Hardison. 218 An employer who does not wish to grant the time
off to this employee generally is not doing so because of the
religious status of the employee. Rather the employer does not
wish to accommodate the employee’s religious practices.219

    213. Michael W. McConnell, Accommodation of Religion: An Update and a
Response to the Critics, 60 GEO. WASH. L. REV. 685, 706 (1992).
    214. See supra Part I.A-B.
    215. See supra Part I.C.
    216. Jamar, supra note 176, at 745.
    217. See id.
    218. See supra Part I.C.
    219. Jamar, supra note 176, at 746.

2010]           BETTER DISABLED THAN DEVOUT                                         547
      Additionally, Title VII defines religion as encompassing all
aspects of religious observance, practice, and belief. 220
Employers must accommodate an employee’s religious
observance and practice of belief unless that would pose an
undue hardship to the employer. 221 Thus, the words of the
statute call for employers to accommodate the religious needs of
their employees and, in essence, religion itself. 222

                           F. Religion is Not Immutable
      A major difference between religion and the other Title VII
categories is that religion is not “immutable.” Religion is not a
physical trait like gender or race. While one can be “born into”
a particular religion at birth, like national origin, 223 that is not a
perfect analogy. Religion is more likely to be something that is
initially chosen unlike the other categories. Religion deals with
how one lives one’s life and what one believes. As Professor
Engle puts it, religious practice can be both compelled and
voluntary. 224 Whether one considers that practice compelled or
voluntary is a central question in Title VII religious
discrimination cases. 225
      Not only is religion not immutable, it is something that is a
choice and yet is not a choice. Most religious persons at some
point in their life make a decision to follow a particular religion.
That choice may be a conscious choice made because of
attending worship services or some life-changing experience.
The decision can be a choice that is made over time, as when a
person is born into a particular religion. In any event, a choice
is ultimately made.
      But when that choice is made and religion becomes part of
the person’s life, there is no room for choice. Either the person
will embrace the religion and its practices and beliefs and it will
become an all-encompassing part of the person’s life, or he will
not and the beliefs and practices of the religion will become
meaningless to the person. When the person lets religion

    220.   42 U.S.C. § 2000e(j) (2006); see also Engle, supra note 87, at 357-58.
    221.   Engle, supra note 87, at 358.
    222.   Id. at 358.
    223.   See id. at 327.
    224.   Id. at 359.
    225.   Id. at 353.

548                     ARKANSAS LAW REVIEW                   [Vol. 63:515
become all-encompassing there is no choice as to whether or not
to follow the religion’s practices or beliefs.
      For example, there is no question that an Orthodox Jewish
person will not work from sundown on Friday evening through
sundown Saturday evening. That is his Sabbath, his day of rest,
and it would be unthinkable for him to even consider doing
secular activities on that day. It is as much a part of his being as
the color of his hair.
      Some commentators define the accommodation that
employers must give employees under Title VII as a “positive
right” because it creates an exception to the neutrality principle
unless the accommodation would cause an undue hardship to the
employer. 226 Title VII, therefore, requires courts to balance the
interests of the employee who seeks an accommodation for his
religious practice, belief or observance, with those of the
employer who will bear the cost of that accommodation. 227
Courts, in other words, must decide when the neutral rules are
subject to an exception for religious reasons. 228
      Despite the accommodationist nature of Title VII, courts
have been reluctant to grant accommodations to employees. 229
This might be because Title VII is an anti-discrimination statute,
and courts are unwilling to seem as if they are endorsing
religion. 230 Additionally, courts seem unwilling to impose
much, if any, burden on employers to accommodate their
employees’ religious needs. 231 This reluctance to provide
accommodations in religion cases actually makes them similar
to the race, gender, and national origin cases. 232 And, as such,
employees face a burden that they should not have to face.

                        V. Constitutional Implications

    226. Engle, supra note 87, at 357–58 (quoting Michael W. McConnell,
Accommodation of Religion: An Update and a Response to Critics, 60 GEO. WASH. L.
REV. 685, 737 (1992)).
    227. Id.
    228. Id. at 358-59.
    229. Id. at 360.
    230. Id.
    231. Engle, supra note 87, at 361.
    232. Id.

2010]           BETTER DISABLED THAN DEVOUT                                         549
      Religion is a complicated and controversial part of
American society. 233 A majority of Americans state that
religion is very important to them. 234 At the same time, a
majority of Americans believe that religion should have less of a
role in the public square. 235 The public square consists of
people with varying religions and religious beliefs. If an
individual’s belief does not infringe upon others’ beliefs, there is
no problem. But when the beliefs affect others, like in the
workplace, controversy is likely to occur.
      This paradox underscores the importance of the
Constitution’s religion clauses to society: the Establishment
Clause protects those who do not want to have religion dictated
to them by the government, and the Free Exercise Clause
protects the right of individuals to practice their religions
without interference from government. 236 While an exhaustive
examination of the religion clauses is beyond the scope of this
paper, they still must be examined in order to gain a fuller
understanding of the issues involved with Title VII religious-
discrimination cases.
      Constitutional considerations must be evaluated if the ADA
regime is to be adopted in Title VII religious-discrimination
cases. Religion is protected by the Constitution through the
First Amendment, while disability is not. 237           While the
Establishment Clause does at first blush appear to pose a
constitutional barrier, in actuality it does not. Indeed, it can be
argued that the Establishment Clause actually favors more
accommodation. 238 Similarly, an employee might argue that the
Free Exercise Clause is necessary to allow him to practice his
religion while still keeping his workplace obligations.

      233. Ruan, supra note 108, at 3. Professor Ruan notes that religion is important to
people of faith who wish to be protected from religious discrimination and also to those
who do not practice a particular religion who wish to be protected from religion. Id.
      234. See State of States: Importance of Religion, GALLUP POLL, http://www. (last visited Oct. 06, 2010).
      235. See More American Question Religion’s Role in Politics, THE PEW RESEARCH
visited Oct. 06, 2010).
      236. Robert A. Sedler, Essay: The Protection of Religious Freedom Under the
American Constitution, 53 WAYNE L. REV. 817, 817-18 (2007).
      237. See U.S. CONST. amend. I.
      238. See Jamar, supra note 176, at 770-72.

550                     ARKANSAS LAW REVIEW                             [Vol. 63:515
                              A. Establishment Clause
      Generally, the Establishment Clause attempts to provide a
separation of church and state by mandating that the government
remain neutral toward all religion. 239 Specifically, the current
test for the Establishment Clause was enunciated in Lemon v.
Kurtzman. 240 Pursuant to Lemon, a law must: (1) have a secular
purpose; (2) not have the principal effect of advancing or
restricting religion; and (3) must not foster an “excessive
governmental entanglement with religion.” 241
      While at first glance the Establishment Clause might appear
hostile toward religion, it was an attempt by the Framers to
protect religious freedom for all. 242 If the government were
allowed to favor one religion over another, the religious rights of
the non-favored religion would, of course, be lesser than the
favored religion. 243 Thus, the Constitution mandates neutrality
toward all religions rather than favoritism toward any particular
religion. Despite this neutrality toward specific religions, the
Establishment Clause is not violated when the government
includes religious institutions along with secular institutions
when distributing certain benefits. 244
      One commentator has examined religious expression in the
workplace and concluded that the balance of public
accommodation has swung too far in favor of employees. 245
This is in spite of the fact that the Supreme Court has become
more receptive to religious expression in the public square since
the 1980s. 246 Despite the evolution of Establishment Clause

      239. Id. at 766.
      240. 403 U.S. 602 (1971).
      241. Id. at 612-13. Professor Jamar examines the vitality of Lemon in subsequent
cases. Jamar, supra note 176, at 766-68. While Lemon has not always been applied in
Establishment Clause cases, it appears to still be the applicable test. Lamb’s Chapel v. Ctr.
Moriches Free Sch. Dist., 508 U.S. 384 (1993) (applying the Lemon test).
      242. Sedler, supra note 236, at 819.
      243. Id.
      244. See id. at 820-21. Professor Sedler lists various examples of the inclusion of
religion with secular institutions. Those examples include the tax exemption for
contributions to religious institutions, the tax exemption for property owned by religious
institutions, and allowing parents to deduct educational expenses that include tuition
payments to parochial schools. Id. at 821. He also cites examples of the government
providing benefits to children attending parochial schools that are equivalent to benefits
that children receive who attend public schools. Id.
      245. Ruan, supra note 108, at 10-11.
      246. Id.

2010]           BETTER DISABLED THAN DEVOUT                                           551
jurisprudence, Title VII religious-discrimination law has not
allowed the same level of religious expression and practice in
the workplace. 247
      During the 1980s, the Supreme Court began to allow more
religious expression in the public square. 248 Professor Ruan
postulates that this development was a result of the Court
“returning to the religious clauses’ historical roots and
encouraging religion for the betterment of society.” 249 While
this is a controversial conclusion, especially in light of the
number of Americans who wish to limit religion’s reach into the
public square, it is likely an accurate assessment of the Court’s
      In addition to the principles of neutrality and separation of
church and state, some commentators have stated that the
Supreme Court has used the principles of tolerance and
accommodation in its Establishment Clause jurisprudence. 250
Professor Jamar uses these principles, as well as the principles
of neutrality, equality, and inclusion, to advocate a new
approach to Title VII religious discrimination cases. 251
      Professor Jamar states that “official tolerance requires the
state to permit a wide range of religious actions, even when
those actions are antithetical, to some extent, to the general
welfare.” 252 It is this tolerance that allows Title VII to include
religion in the list of protected classes. 253 Professor Jamar states
that this tolerance of religion is actually a non-neutral
position. 254 The government has actually favored religion

      247. Id. at 16-17.
      248. Id. at 10-11.
      249. Id. at 11. Professor Ruan also examines two recent Establishment Clause cases
in the Supreme Court, Van Orden v. Perry, 545 U.S. 677 (2005), and McCreary County v.
ACLU of Kentucky, 545 U.S. 844 (2005), in which the Supreme Court came to opposite
conclusions in cases involving the Establishment Clause. Id. at 12-13. In Perry, a majority
of the Court allowed a Ten Commandments monument to remain on the grounds of the
state capital. 545 U.S. at 691-92. The Court, in its plurality opinion, appeared to allow the
display in an attempt to encourage religion and acknowledge the religious traditions in
America. Id. at 687-90. In McCreary County, the Court did not allow a Ten
Commandments display to remain in a county courthouse because the display had a
religious purpose which violated the Establishment Clause. 545 U.S. at 878-81.
      250. Jamar, supra note 176, at 769.
      251. Id. at 770-72.
      252. Id. at 785.
      253. See id.
      254. Id. at 786.

552                     ARKANSAS LAW REVIEW                             [Vol. 63:515
insofar as it has declared that the practice of religion cannot be
discriminated against in employment decisions. 255
      The principle of accommodation allows the government to
take steps to favor religion “by allowing it room to exist,” and
that principle “extends to steps which differentially benefit
religion.” 256 Accommodation in the context of Title VII refers,
of course, to what an employer must do to enable an employee
to practice his religion and retain his job. 257 The principle of
accommodation allows the government to move beyond the
simple neutrality of the Establishment Clause. 258

                                    B. Free Exercise
      The Free Exercise Clause was designed to allow
individuals to practice their religion without government
interference. However, the usefulness of the Free Exercise
Clause is questionable after the Supreme Court’s decision in
Employment Division v. Smith. 259 In Smith, the Supreme Court
held that the Free Exercise Clause will not excuse an
individual’s noncompliance with a “valid and neutral law of
general applicability on the ground that the law proscribes. . .
conduct that his religion prescribes. . . .” 260 The Smith decision
leaves people of faith little recourse if their ability to practice
that faith is hampered by a law of general applicability. 261
      Professor Alan Brownstein has written on how religion
should be analyzed for Free Exercise purposes. 262 He has
identified issues that must be addressed if the free exercise of
religion is to be protected. The first of those issues is the

      255. See Jamar, supra note 176, at 786.
      256. Id. at 784. Professor Jamar views the granting of tax-exempt status to religious
organizations, while secular institutions must pay tax, as an accommodation to religion. Id.
The exemptions given to religious organizations from certain Title VII requirements are
also another accommodation of religion. Id.
      257. Id.
      258. Id.
      259. 494 U.S. 872 (1990).
      260. Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens,
J., concurring)). Smith does, however, provide greater protection when the Free Exercise
right is combined with other constitutional rights such as freedom of speech or press. See
id. at 881.
      261. Alan Brownstein, Taking Free Exercise Rights Seriously, 57 CASE W. RES. L.
REV. 55 (2006).
      262. See, e.g., id.

2010]           BETTER DISABLED THAN DEVOUT                                        553
privileging of religion. 263 When an individual’s right to exercise
his religion is enforced, that person is given a benefit that a
nonreligious person does not receive. 264 That privilege also
applies to religious institutions that receive benefits from the
state, such as tax exemptions. 265 With regard to privilege,
Professor Brownstein states that the issue is not whether the
religious individual should receive different treatment than the
nonreligious individual but, rather, whether the exercise of
religion deserves constitutional protection in the first place. 266
      Professor Brownstein answers the question in the
affirmative, but then asks how the Free Exercise doctrine should
deal with the fact that granting a religious accommodation to a
religious individual may confer secular benefits beyond the
protection of her ability to practice her faith.267 The suggested
solution is to clearly enunciate what the privilege is that the
religious individual will be receiving and also to clearly state
what the government expects in return for the privilege.268 In
other words, while the state may accommodate a religious
individual by not forcing him to violate his religious belief, it
may take action to mitigate the secular benefit that may accrue
to the individual. 269
      Although the thought that a religious individual must
mitigate any secular benefit he may receive as a result of a
privileging accommodation is counterintuitive, it is a rational
solution. The mitigation of the privilege allows the religious
individual who has received the accommodation to share in the
social cost of the accommodation. 270 Being allowed to avoid an
obligation because of one’s religious faith has real value. 271

      263. Id. at 63.
      264. Id. at 71.
      265. Id.
      266. Brownstein, supra note 261, at 72.
      267. Id. at 72.
      268. Id.
      269. Id. Professor Brownstein gives the example of the military conscientious
objector. Conscientious objectors must perform alternative service in exchange for not
bearing arms in the military. Id. at 72-73. That service may be community service or non-
fighting military roles.
      270. Id. at 73.
      271. Brownstein, supra note 261, at 73.

554                     ARKANSAS LAW REVIEW                           [Vol. 63:515
Mitigating the privilege lessens the surplus value of the benefit
to the religious individual. 272
     There is another justification for mitigating the secular
benefit received by the granting of Free Exercise rights. In the
Title VII context, if, for example, a Sabbatarian wishes to not
work a particular day of the week because of his religious faith,
some other person will have to work that day for the
Sabbatarian. That may be a disadvantage to the nonreligious
employee who would prefer a weekend day off for nonreligious
reasons. 273

           C. Accommodation Furthers Religious Freedom
      This reluctance to require more than a de minimis
accommodation by employers seems to be inapposite to the
societal goal of allowing members of all religions to practice
their faith freely. 274 This is especially important for members of
minority religions, who face challenges of acceptance and
skepticism from society at large.
      In recent years, religion has taken on a greater role in the
lives of Americans. 275 As the practice of religion has become
more prevalent, many question the role that religion should play
in public life. 276 Concurrent with the rise of religious practice
has been the diversification of religions. 277 While the United
States at one time might have been exclusively a Judeo-
Christian nation, that now is not the case. 278
      Minority religions pose challenges in the workplace that are
harder for employers to accommodate. While an employer
might not want to allow an employee time off because of a day

      272. Id. at 73-74.
      273. Id. at 71, 74-76.
      274. Ruan, supra note 108, at 17, 19.
      275. See        State of States: Importance of Religion, GALLUP POLL, (last visited Oct.
06, 2010).
      276. See More American Question Religion’s Role in Politics, THE PEW RESEARCH
visited Oct. 06, 2010).
      277. Buford, Jennifer, Diversity and Religion in America, LIFESTYLE,
(last visited Oct. 06, 2010).
      278. Zaheer, supra note 101, at 498. Zaheer states that Islam will soon pass Judaism
as the largest minority religion in the United States. Id.

2010]         BETTER DISABLED THAN DEVOUT                                   555
of worship, that can usually be accommodated without too much
disruption to the workplace. The harder accommodation might
be for a Muslim who does not necessarily need an
accommodation for a day of worship, but might need an
accommodation for daily prayers at numerous times throughout
the workday. Indeed, religious discrimination claims by
Muslims have doubled since the September 11, 2001 terrorist
attacks. 279
      If Americans truly believe in cultural and religious
diversity, then ensuring that minority religions are able to
resolve conflicts between religious practice and workplace rules
is a necessity. If religious minorities are marginalized in the
workplace, they will be marginalized in the rest of society. The
marginalization of religious minorities will make it easier to
deny accommodations to those who practice more mainstream
      Freedom of religion is a concept that most Americans
believe is fairly straightforward. The Constitution protects an
individual’s right to practice his religion and prohibits the
government from establishing a religion. 280 But of course it is
not that simple. The Supreme Court has rendered the Free
Exercise clause no help to many individuals. 281
      In Employment Division v. Smith, the Supreme Court held
that an individual’s Free Exercise rights are not violated by the
obligation to comply with a neutral law of general applicability
that conflicts with his religion. 282 The individual may, however,
have hybrid rights when the Free Exercise claim is combined
with another constitutional right such as freedom of speech or
freedom of the press. 283 As a result, an individual’s free
exercise claim may be trumped by laws which ostensibly have
no relation to religion as long as the law is one of general

     279. Semuels, Alana, Workplace Bias Against Muslims, Arabs on Rise, Advocates
Say, L.A. TIMES, Oct. 3, 2008, at C5, available at
     280. U.S. CONST. amend. I.
     281. George W. Dent, Civil Rights for Whom?: Gay Rights Versus Religious
Freedom, 95 KY. L.J. 553, 558 (2006-2007).
     282. 494 U.S. 872, 879 (1990).
     283. Smith, 494 U.S. at 881

556                     ARKANSAS LAW REVIEW                          [Vol. 63:515
      The Smith Court based its decision on two grounds. First,
it did not support a regime in which individuals only obeyed
laws to the extent that the laws did not conflict with their
religious beliefs. 284 Second, the Court did not want judges
weighing the “social importance of all laws against the centrality
of all religious beliefs.” 285 The Court clearly was uncomfortable
with evaluating the religious practices of individuals. 286
However, the result has left the Free Exercise Clause virtually

                                    VI. Conclusion
      There is a disconnect between the rhetoric on the value of
religion in society and the protection afforded to employees of
faith who encounter conflicts between practicing their faith and
workplace rules. While at least some in society claim to value
religion and what religion adds to the public square, others say
that accommodating the needs of religious employees need only
be accomplished if it does not cost anything to employers. 287
The federal court system has embraced the notion that an
accommodation that poses more than a minimal burden on an
employer demands too much, notwithstanding the benefits that a
pluralistic society and workforce may bring. 288
      The ADA has provided a guide on how to strengthen
reasonable accommodations given to employees. 289 The ADA
model offers greater balance in the analysis of what
accommodations are reasonable and how much of a burden is
required of employees. While the cost to employers would
necessarily increase under the ADA model, that cost is
outweighed by the benefits of employees being able to practice
their faith without the threat of losing their jobs because of a
conflict with employment requirements.
      While religious-discriminations cases are covered by Title
VII, there are many differences between religion and the other

      284. James M. Oleske, Jr., Federalism, Free Exercise, and Title VII: Reconsidering
Religious Accommodation, 6 U. PA. J. CONST. L. 525, 540 (2004) (citing Smith, 494 U.S. at
      285. Smith, 494 U.S. at 890
      286. See id.
      287. See supra Part I.
      288. See supra Part I.E.
      289. See supra Part III.

2010]         BETTER DISABLED THAN DEVOUT                      557
covered Title VII categories. Those differences require that the
analysis of religious-discrimination claims be different than the
analysis of claims brought because of discrimination based on
race, sex, or national origin discrimination.
     In a religious pluralistic society, the religious rights of all
must be respected and protected. Forcing employees to choose
between their faiths and their jobs does not offer these
employees the respect or the protection that was envisioned
when the First Amendment was ratified or when Title VII was
enacted. Creating a more equal balance when evaluating
whether an accommodation is reasonable will help provide the
respect and protection that employees deserve.

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