ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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 employers. 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 http://www.usdoj.gov/crt/religdisc/ 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. ARKANSASLAWREVIEW.ORG 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 accommodated. 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 ARKANSASLAWREVIEW.ORG 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 OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/statistics/enforcement/race.cfm (last visited Sept. 19, 2010). 6. See Sex-Based Charges, FY 1997-FY 2008, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/statistics/enforcement/sex.cfm (last visited Sept. 19, 2010). 7. See Age Discrimination in Employment Act (includes concurrent charges with Title VII, ADA and EPA), FY 1997-FY 2008, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm (last visited Sept. 19, 2010). 8. 432 U.S. 63 (1977). 9. 479 U.S. 60 (1986). ARKANSASLAWREVIEW.ORG 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., id.at 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. Hardison 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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). ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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 (2007). 102. Id. 103. Id. at 517-19. 104. 118 CONG. REC. 705, 705-06. ARKANSASLAWREVIEW.ORG 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 accommodations. 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. ARKANSASLAWREVIEW.ORG 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 Act. 113. See, e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 68-69 (1977). ARKANSASLAWREVIEW.ORG 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 114. See OFFICE OF DISABILITY EMP’T POLICY, U.S. DEP’T OF LABOR, SURVEY OF EMPLOYER PERSPECTIVES ON THE EMPLOYMENT OF PEOPLE WITH DISABILITIES (2008), available at http://www.dol.gov/odep/documents/survey_report_jan_09.doc. 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. ARKANSASLAWREVIEW.ORG 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. EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/policy/docs/ accommodation.html (last visited Sept. 11, 2010). 126. 535 U.S. 391 (2002). ARKANSASLAWREVIEW.ORG 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 preferences. 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. ARKANSASLAWREVIEW.ORG 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 (2002)). ARKANSASLAWREVIEW.ORG 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 turn. 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 ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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 reasoning. ARKANSASLAWREVIEW.ORG 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 Approach 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 conflict. 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. ARKANSASLAWREVIEW.ORG 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). ARKANSASLAWREVIEW.ORG 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. 60. 182. Ansonia Bd. of Educ., 479 U.S. at 69. ARKANSASLAWREVIEW.ORG 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”)). ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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 ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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). ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. gallup.com/poll/114022/state-states-importance-religion.aspx (last visited Oct. 06, 2010). 235. See More American Question Religion’s Role in Politics, THE PEW RESEARCH FOR THE PEOPLE AND THE PRESS, http://people-press.org/report/445/religion-politics (last 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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 thinking. 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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. ARKANSASLAWREVIEW.ORG 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, http://www.gallup.com/poll/114022/state-states-importance-religion.aspx (last visited Oct. 06, 2010). 276. See More American Question Religion’s Role in Politics, THE PEW RESEARCH FOR THE PEOPLE AND THE PRESS, http://people-press.org/report/445/religion-politics (last visited Oct. 06, 2010). 277. Buford, Jennifer, Diversity and Religion in America, LIFESTYLE, http://www.associatedcontent.com/article/182043/diversity_and_religion_in_america.html (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. ARKANSASLAWREVIEW.ORG 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 religions. 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 applicability. 279. Semuels, Alana, Workplace Bias Against Muslims, Arabs on Rise, Advocates Say, L.A. TIMES, Oct. 3, 2008, at C5, available at http://www.adc.org/media/press- releases/2006/october-2006/workplace-bias-against-muslims-arabs-on-rise-la-times/. 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 ARKANSASLAWREVIEW.ORG 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 meaningless. 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 885). 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. ARKANSASLAWREVIEW.ORG 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.