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The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII
Abstract
This article addresses recent scholarly proposals to expand the scope of Title VII to include rights of employees to dress, groom or speak in accordance with what they consider their culture. Such proposals often suggest that Title VII's religious accommodation provision would provide a good model for reinterpreting race, national origin or sex. They fail, however, to consider seriously how courts have interpreted religion over the years.This article compares the doctrine developed in race, national origin and sex discrimination cases with the religious accommodation doctrine. It argues that courts in the religion cases either follow the integrationist approach of the race and national origin cases or the separationist approach of the sex cases. The inability of religious accommodation to overcome integrationist and separationist ideology is one of many examples of the dominance of the nondiscrimination/neutrality norm in American law (and society).The article concludes by cautioning legal reformers against valorizing models that they propose for comparison. In this case, the deployment of the religious accommodation model as a critique of race, national origin and sex discrimination doctrine has obscured not only the recalcitrance of neutrality, but also of the distinction between status and conduct and the deference that courts have long given to the rights of employers to fashion their workplace.
In this vibrant new history, Phil Tiemeyer details the history of men working as flight attendants. Beginning with the founding of the profession in the late 1920s and continuing into the post-September 11 era, Plane Queer examines the history of men who joined workplaces customarily identified as female-oriented. It examines the various hardships these men faced at work, paying particular attention to the conflation of gender-based, sexuality-based, and AIDS-based discrimination. Tiemeyer also examines how this heavily gay-identified group of workers created an important place for gay men to come out, garner acceptance from their fellow workers, fight homophobia and AIDS phobia, and advocate for LGBT civil rights. All the while, male flight attendants facilitated key breakthroughs in gender-based civil rights law, including an important expansion of the ways that Title VII of the 1964 Civil Rights Act would protect workers from sex discrimination. Throughout their history, men working as flight attendants helped evolve an industry often identified with American adventuring, technological innovation, and economic power into a queer space.
Discussion of the way in which law engages with religious difference often takes place within the context of a single jurisdiction. Religion and Law: An Introduction, presents a comprehensive text for students, drawing on examples from across key Anglophone jurisdictions the United Kingdom, the United States, Canada, New Zealand, Australia and South Africa, as well as international law, to explore a broad range of issues. Aimed at a non-legal readership, this book introduces the use of legal sources and focuses on factual situations as much as legal doctrine. Key issues arising from interaction of the religious individual and the State are discussed, as well as the religious organisation or community and the State. The interaction is explored through case studies of areas as diverse as the legal regulation of religious drug use, sacred spaces and sacred places, and claims of clergy misconduct. Taking a broad, non-jurisdictional approach to the key issues, in particular providing insights differing from the dominant US experiences and paradigms, this student-friendly textbook includes a clearly structured bibliography and clear guidance on how to approach relevant legal materials.
Although section 701(j) of the Civil Rights Act of 1964 requires that employers reasonably accommodate their employees' religious practices and beliefs, many commentators acknowledge that the spirit of reasonable accommodation has not been realized because courts have drastically limited the scope of employers' duty. This may be especially true for Muslims, who, according to a 2012 study, are roughly half as likely to prevail in free-exercise and religiousaccommodation lawsuits as are non-Muslim claimants. One of the central tenets of Islam, the hajj, poses significant challenges for Muslim employees seeking accommodation under Title VII. Because accommodating the hajj will almost always impose more than a de minimis cost on employers, a court is unlikely to find that Title VII requires employers to accommodate a Muslim employee's decision to complete the pilgrimage.
This Note attempts to articulate a new method for expanding Title VII's protection of employees' religious beliefs and practices. Specifically, this Note argues that increased involvement by the Equal Employment Opportunity Commission and the Department of Justice in hajj-accommodation cases offers a promising approach to developing a more balanced accommodation doctrine, or at least to realigning the scales so that they are not tilted so heavily in favor of employers. Despite clear precedent limiting an employer's duty to accommodate, increased intervention by the federal government in Title VII hajj-accommodation cases has the potential to shift the conception of reasonable accommodation. Though the government must pick and choose the cases in which to intervene, hajjaccommodation cases present an opportunity to further the dual purposes of the government's Title VII enforcement authority to implement the public interest as well as to bring about more effective enforcement of private rights. Intervention can restore the spirit of accommodation to section 701(j) and give employers more of an incentive to accommodate their employees' religious obligations.
Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and criminal records. It argues that the new immutability does not avoid the old version’s troublesome judgments about which traits are morally blameworthy and introduces new difficulties by requiring problematic judgments about which traits are important. Ultimately, immutability considerations of both the old and new varieties distract from the aim of employment discrimination law: targeting unreasonable and systemic forms of bias.
There is growing tension in the law between an employee's right to religious expression in the workplace and an employer's countervailing right to cultivate its corporate image. The existing case law provides little meaningful guidance to employers and employees faced with this conflict. Not only do outcomes vary from court to court, but the analysis and reasoning underlying these decisions are often inconsistent, and sometimes contradictory. I argue that because a company's image is one of its most valuable assets, courts should more closely scrutinize religious accommodation claims that interfere with a company's ability to control its image. Such enhanced scrutiny does not require a break from Supreme Court precedent; rather, it requires stricter adherence thereto. I offer three recommendations for how courts can recalibrate their analyses of religious accommodation cases involving corporate image concerns. These recommendations should help produce a more balanced case law that better harmonizes with Supreme Court precedent, while providing employers and employees greater clarity in navigating this sensitive and complex issue.
Federal agencies regularly sail in murky constitutional waters. Established principles of statutory interpretation, however, leave federal courts adrift amid these dangerous shoals. When faced with agency interpretations that raise constitutional doubts, courts are torn. On the one hand, the famous rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. instructs courts to defer to an agency’s reasonable interpretation of its own statute. On the other, cutting against deference, the longstanding canon of constitutional avoidance counsels courts, when possible, to choose a statutory construction avoiding serious constitutional doubts. Although the Supreme Court eventually resolved this dilemma in favor of the avoidance canon, the Court’s rationale remains somewhat of a mystery. Commentators generally tell a story of policy. This Note offers an alternative textualist account rooted in historical practice.
In this Essay, I seek to analyze the origins of the duty to accommodate people with disabilities in Canadian law in order to present a counter-factual argument on why the duty to accommodate has not flourished in American law. Comparative legal approaches have the merit of shedding fresh light on old legal problems that might not otherwise be considered. In Part I, I trace the history of the concept of reasonable accommodation in leading Supreme Court of Canada decisions, and demonstrate how accommodation of workers with religious beliefs remained central to the development of the jurisprudence and helped make decision-makers more comfortable in adopting a broader theory of equality. I contrast this in Part II with American jurisprudence on the duty to accommodate workers with religious beliefs, which has been plagued by concerns that the mandatory nature of reasonable accommodation in the workplace may infringe the Establishment Clause. I conclude in Part III with some brief reflections on the implications of the argument.
Can women capture the benefits of equal citizenship in a legal system that does not mandate necessary accommodations for pregnant workers? This article argues that current pregnancy discrimination law, which bases the right to work on full capacity, systematically deprives women of equal opportunity to make use of their innate capacities and talents in the workplace. This failure, in turn, compromises the quest for equal social citizenship - the right of equal access to paid work - that has been a cornerstone of the modern women’s movement.This article first examines the nature and extent of conflicts between pregnancy and work, concluding that such conflicts have escalated in number and degree as women have expanded their labor force participation in many different respects. It next turns to the concept of substantive citizenship, with a particular focus on work and social citizenship, as a framework within which to assess gender inequality generally and, more specifically, the effects of the law’s failure to provide sufficient accommodation for the needs of pregnant working women. The article then examines pregnancy discrimination law, tracing the shift from an era of exclusion to an era of access brought about, in large part, by the Pregnancy Discrimination Act of 1978 (PDA). The PDA was part of a broad social movement designed to guarantee equal employment opportunities for women, but was specifically designed to dismantle a system in which states and employers excluded or restricted pregnant workers based on false assumptions about their capacity. Unquestionably, the PDA opened workplace doors for pregnant women. The plight of pregnant workers today, however, rests not primarily in false assumptions about their incapacity, but in the failure of current law to account for the physical, medical, and social realities of pregnancy. Pregnancy discrimination law provides absolute protection for women only if they retain full work capacity during the period of pregnancy and childbirth. In cases of partial incapacity, it provides only a comparative right to accommodations that can be limited in nature and difficult to enforce. In the final section, this article thus argues that equal citizenship requires not only legal protection from unjustified exclusion from the workforce, but also protection for a pregnant woman’s right to work despite the potential temporary physical limitations of pregnancy. Only with a greater right of accommodation can women make full use of their innate talents and capacities at work.
This is a story about gender, makeup and the law. Darlene Jespersen, a bartender, was fired from her job of fifteen years at Harrah's Casino because she refused to wear makeup. Jespersen responded with a lawsuit that traveled to the Ninth Circuit, where she was represented by LAMBDA Legal, the preeminent gay rights litigation organization. Makeup, some will argue, is a trivial thing. Why would Darlene Jespersen (choose to) lose her job over makeup? More generally, how did favoring (as opposed to prohibiting) a practice that so many women (but not men) engage in become the basis for a sex discrimination suit? Why was LAMBDA involved? What is at stake? Isn't makeup a vehicle for women to express their autonomy and individuality? Finally, do we really want the federal government involved in policing employers' makeup policies? Because anti-discrimination law has been wedded to a biological conception of sex, it has not grappled well with sex discrimination cases that implicate makeup and grooming. This is particularly problematic in today's labor market because few contemporary employers are likely to exclude all women from their workplace; they are far more likely to engage in intra-gender screening based on whether a woman's self presentation is in accord with social scripts about gender normative behavior. Using Jespersen as a point of departure, we reveal how makeup is implicated in this screening process and explain why its regulation ought to be conceptualized as a form of discrimination on the basis of sex.
This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory - the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. Nonetheless, as a practical matter, the paradox is real. Courts are more likely to protect workplace expressions of gender identity than racial identity. The divergence, I contend, flows not from law, but from culture - in particular society's ongoing commitment to racial transcendence and gender essentialism.
The Genetic Information Nondiscrimination Act (“GINA”), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic-information discrimination is currently taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article provides a detailed look at this unprecedented new statute, beginning with its initial introduction in 1995. Next, the Article examines the justifications for passing preemptive genetic-information discrimination legislation, concluding that Congress had twin objectives: a research justification and an antidiscrimination justification. Lastly, the Article explores the implications of passing antidiscrimination legislation absent a history of discrimination. It concludes that GINA’s preemptive nature may be both its greatest attribute and its deepest flaw.
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