Hijabs, Dreads, and Saturdays Off: Employees' Religious Rights in the Workplace

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, September 7, we discuss “Hijabs, Dreads, and Saturdays Off: Employees’ Religious Rights in the Workplace.” My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

      This afternoon, we are joined by Rachel Morrison. Rachel is a Policy Analyst at the Ethics & Public Policy Center. She was formerly an Attorney Advisor at the U.S. Equal Employment Opportunity Commission. She has also worked at Americans United for Life and the Becket Fund as a Constitutional Law Fellow. Rachel graduated from Pepperdine University School of Law, and she clerked for Judge Victor Wolski on the United States Court of Federal Claims.  We’re very pleased to welcome Rachel this afternoon and are looking forward to this afternoon’s discussion.

 

      We will be taking audience questions towards the end of today’s program, so please enter your questions into the Q&A feature of your Zoom screen. Rachel will handle those questions towards the end, time permitting. Please feel free to enter questions into the Q&A tab at any time.

 

      With that, thank you for being with us today. Rachel, the floor is yours.

     

Rachel Morrison:  Thank you, Evelyn. And thank you to FedSoc for hosting this webinar. I think it’s important to talk about employees’ religious rights in the workplace. Many employees don’t know their rights, or they think that they don’t have an option to be religious in the workplace. So the goal of the webinar today is to educate you about employees’ rights to religious expression, nondiscrimination, and accommodation in the workplace. I will address each of those in turn. These issues are very fact specific, so my goal is to address the legal framework on how to analyze these issues and not get into the nuances of any one specific scenario and it how it should come out under the law.

 

      To set the stage, I want to clarify that I’m talking about the rights of employees who work for secular organizations or for federal or state governments. There’s additional considerations for employees who work for religious organizations. Religious organizations have certain rights to employ individuals that share their religion or to make employment decisions based on religion. If you want to know more about that, there’s going to be another webinar in this series, so stay tuned for that. I will be focusing on employees who do not work for religious organizations.

 

      To start off, let’s talk about religious expression. First thing we should probably do is define what is religious. If you’ve ever had to define religion, you know that it’s hard to define what religion is, so I’ll share with you what the courts have said about what is considered religious under the law.

 

      A belief is considered religious if it’s religious in the person’s own scheme of things, if it’s a sincere and meaningful belief that occupies in the life of the possessor a place parallel to that filled by God. This included theistic beliefs as well as non-theistic, moral, or ethical beliefs as to what is right and wrong that are sincerely held with the same strength as traditional religious views. Typically, beliefs must concern ultimate ideas about life, purpose, and death.

 

      And so religion includes traditional organized religions, including Buddhism, Christianity, Hinduism, Islam, Judaism, Sikhism, and the like, but it also includes religious beliefs that are new or uncommon, that are not part of a formal church or sect or only subscribed to by a small group. They can seem illogical or unreasonable to others, including to the employer.

 

      Title VII defines religion to include all aspects of religious observance and practice as well as beliefs, so this is a very broad definition of religion. And so legal protections for employment discrimination extend to more than just practices that are mandated or prohibited by a tenet of an individual’s faith. It’s also important to note that something that is religious under Title VII is considered religious even if the organized religion that the employee is affiliated with does not espouse that belief or has a different one. It’s focused on what the individual’s religious beliefs are.

 

      To put this in context, you might have seen there’s some controversy over President Biden claiming to be Catholic and whether his views on abortion align with the Catholic faith. While that’s an interesting theological question, for purposes of the law, Biden would be able to have the views he wants on abortion regardless of what the Catholic Church says.

 

      Another issue I’ve seen recently also involving the Catholic Church is the view of whether it is morally permissible or required to take a COVID-19 vaccine or whether you can have a religious objection to that. For employers, it matters what the individual employee’s religious beliefs are, not what the Catholic Church itself has espoused. And so when you’re dealing with religious discrimination, courts and employers should look at whether the beliefs are religious and whether they are sincerely held.

 

      A belief is not religious if it is merely philosophical or personal, if it’s political or social. So think about a situation where two different employees can have the same practice for different reasons. Say an employee is vegetarian for religious reasons, certain dietary prescriptions according to their religious beliefs, but you can also have an employee who is vegetarian for environmental reasons, for animal rights reasons, for other reasons. So only the first employee’s practices would be protected as religious under the law.

 

      It’s also important to note that for religious employees, it’s important to not claim that certain practices are religious if they’re not done for religious reasons. The practices need to be religious, but they also need to be sincerely held. Generally, this is assumed by employers and by the courts unless there’s reasons to suspect pretext.

 

      For example, say an employee asks for time off for a concert on Saturday, and that gets denied. The employee comes back and then asks for time off on Saturday to observe the Sabbath. Now, this might give an indication that it’s being asked pretextually, that there’s not a sincerely held religious belief to observe the Sabbath on Saturday. That being said, it’s also important to recognize that beliefs can change over time, that employees may not perfectly follow all of their religious tenets, and the employee’s beliefs can be different than the organized religion’s practice.

 

      So what does religious expression look like in the workplace? Religious expression is an outward reflection of your religious beliefs or faiths. It’s affirmatively doing something or choosing to refrain from doing something.

 

      When I was at the EEOC, I looked at hundreds of charges of religious discrimination. And my colleagues and I on the general counsel’s religious discrimination workgroup decided that it made sense to group these different types of claims into four broad categories. It just helped us conceptually organize these claims in our mind and think about these claims. I’ll share those with you. These are not legal categories, and they’re not perfect categories. Some types of religious discrimination claims can fall into multiple categories, depending on how you frame them.

 

      The four categories are -- the first one is appearance. This includes clothing or grooming. So think about clothing in the sense of wearing a hijab or a turban, wearing modest clothing, such as wearing skirts or dresses instead of pants. Grooming -- these are issues related to hair and whether you want to cut your hair, or if you have dreadlocks, such as for Rastafarians. This also is beards and whether you have to have a beard for religious reasons. This could also include things such as jewelry, wearing a cross necklace or perhaps a religious tattoo. And so that’s the first category.

 

      The second category is observance. So think about observance in the sense of taking prayer breaks during the day or observing the Sabbath, whether that’s Friday or Saturday or Sunday. This could be attending a religious service or convention. This could be ritual type practices. It could be the types of food you eat or drink, whether your kosher or halal, whether you don’t drink alcohol, or whether you don’t drink caffeine, or whether you need to take time off to go on a pilgrimage.

 

      So we have appearance, observance, and the third one is expression. Obviously, all of these are religious expression on some level, but for this category, think about expression in the sense of free speech context. So these are sayings that you say, such as having a blessed day, or maybe having a byline after your signature on an email with a religious quote or verse. So this could be having religious texts at your workplace, or a poster, or a verse or passage. It could be listening to Christian music. It could be proselytizing or talking about your faith or your religion with others.

 

      So we have appearance, observance, expression, and the final category is forced participation. So this is the desire to refrain from doing something for religious reasons. This could be choosing not to participate in a holiday party or a celebration of something, some social or political or other type of event that goes on at work. It could be trying to promote values that are contrary to your faith. This could be something such as taking a flu vaccination or, these days, the COVID-19 vaccination. It could be swearing an oath.

 

      For healthcare workers, it could be participating in an abortion procedure or sterilization or transgender surgeries. For a pharmacist, it could be dispensing contraception in general or certain types of contraception that are considered potential abortifacients. For truck drivers, it could be transporting alcohol. If your employer has optional religious activity or starts off a meeting with a prayer or invocation, you could choose not to participate in that for religious reasons. So these are the various ways that religious expression can come up in the workplace, and I’m sure you can probably think of other ways as well.

 

      Under the law, you are protected from religious discrimination on the basis of religion. The main law that applies to that is Title VII of the Civil Rights Act of 1964. This applies to employers who have 15 or more employees, and it prohibits discrimination on the basis of religion as well as race, color, sex, and national origin. So you’re protected from discrimination in hiring, firing, promotions, training, wages, terms, conditions, benefits, privileges. Basically, an employer cannot make a decision for religious reasons, whether that’s because you are of a certain religion or because you are not of a certain religion.

 

      It’s important to note that in this way, atheists, agnostics, non-religious are also protected from religious discrimination. They cannot be fired because they are not Christian or Jewish or Muslim. And you cannot hire someone because they are Christian or Jewish or Muslim as a secular organization. Employers cannot make the decision because of religion or because someone is not of a religion.

 

      If an employer allows something for secular reasons, they also have to allow it for religious reasons. So say, for example, that an employer allows the use of breakrooms before or after work or during lunch to be reserved for use to watch football games or to meet with other colleagues to discuss a book. They would also need to allow the use of the breakrooms for a Bible study or for prayer meetings as well during the non-work hours.

 

      Title VII protects from disparate treatment in the work environment, and it also protects against hostile work environments. So hostile work environments is illegal harassment, so religious harassments analyzed and proved in the same manner as harassment based on other traits. But there is potentially unique considerations in the religious context, especially when the alleged harassment relates to another employee’s religious practices. Harassment itself can be physical or verbal, and in order to be religious harassment, it has to be based on the person’s religion or lack of a certain religion.

 

      Illegal harassment occurs when comments or conduct are unwelcome and when they become severe or pervasive so that they create a hostile work environment. Unwelcome is the person that is being harassed does not want to engage in the conduct or hear the comments or talk about the comments. And so usually, the person needs to indicate that it is unwelcome. Sometimes, something such as a racial slur or physical harassment is more likely to be assumed that it is unwelcome.

 

      It either needs to be severe or pervasive, and this is a sliding scale. The more severe something is, the less pervasive it needs to be. The less severe something is, the more pervasive or multiple occurrences that need to happen in order for it to become an illegal hostile work environment.

 

      It’s important to note that Title VII is not a general civility code. It doesn’t render any insensitive or offensive comment, any petty slight or annoyance illegal. Harassment doesn’t occur just because someone mentions their faith in the workplace. Proselytizing itself is not per se harassment. However, if a colleague that you are talking to asks you not to talk about your religion, if you keep talking about your religion, that could move into the realm of harassment.

 

      It’s also important to note that there’s special concerns for supervisors or managers if you’re inviting or encouraging others to participate in a religious exercise such as a prayer meeting or to study a religious book or scripture or having conversations about religion. It’s important for supervisors and managers to make sure that it is clear that it’s optional, that employment decisions won’t be based on the other employees’ acceptance or rejection of the religion, and that there’s no coercion in that interaction at all.

 

      Title VII also protects against retaliation. It prohibits an employer from retaliating against an employee who complains about religious discrimination or who files a charge of religious discrimination, whether that’s for themselves or for another colleague. So an employer cannot treat you poorly, adverse employment action, not promote you, not fire you, not give you certain benefits because you brought up the issue of religious harassment or discrimination or accommodation.

 

      That leads me to religious accommodation. Title VII requires employers to reasonably accommodate an employee’s religious beliefs, observances, and practices unless an accommodation would create an undue hardship on the conduct of the employer’s business, so the need for accommodation arises when there’s a neutral workplace or job duty that conflicts with the religious belief, observance, or practice.

 

      To provide some examples, while I was at the EEOC, I looked at a number of religious discrimination cases that EEOC had brought. The majority of these cases fell into three of the categories. The first one was appearance, so this was clothing and grooming issues brought on behalf of Muslims, Pentecostals, and Rastafarians. The other cases fell under observance, which were Sabbath observance, holy days or prayer breaks brought on behalf of Seventh Day Adventists, Jehovah’s Witnesses, Jews, and Muslims. And then the third category was forced participation. This included flu vaccinations—and this was all pre-COVID—brought mainly on behalf of members of various Christian denominations.

 

      And so those were a lot of the cases that EEOC itself was bringing against employers, but that’s only a subset of all of the religious discrimination charges that have been filed. Many of those cases will settle, or individuals will request a notice of right to sue so that they can sue in federal court on those issues themselves.

 

      Perhaps the most well-known Title VII religion case is Abercrombie & Fitch Stores brought by the EEOC. This was a case that involved the clothing store’s refusal to hire a Muslim applicant who wore a hijab to the interview because they assumed correctly that she would need an accommodation from Abercrombie’s look policy, which prohibited employees from wearing caps.

 

      The Supreme Court in 2015 found that Abercrombie violated Title VII because an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. The Court explained, “Title VII does not demand mere neutrality with regard to religious practices, that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not to fail to refuse to hire or discharge any individual because of such individual’s religious observance or practice.” In other words, the Supreme Court held that the law requires employers to actively accommodate the religious practices and conduct of employees, going so far as to call it favored treatment.

 

      Title VII requires religious accommodations if they are reasonable and if they do not pose an undue hardship. So what is a reasonable accommodation? First off, an employee who needs an accommodation should inform their employer of the need for an accommodation. It’s important to explain the nature of the conduct and propose a potential accommodation. However, the accommodation that the employer gives does not need to be the employee’s preferred accommodation; it just needs to be reasonable. An accommodation is reasonable if it eliminates the conflict and if it doesn’t change the employee’s terms and conditions, unless there’s no other options.

 

      A partial elimination of the conflict is generally not considered reasonable. Say your Sabbath observance is Friday night at sundown through Saturday, and you request for time off to observe the Sabbath. If the employer said, “Oh, you can work Friday nights, but you can have Saturdays off. We’ll give you that,” that would not be considered a reasonable accommodation unless there was no other way to give the employee Friday nights off.

 

      A related issue is transferring an employee to a different position is generally not seen as reasonable unless there is no way to accommodate the employee in the particular position that they hold. Reasonable is a very fact-specific of what is reasonable for that employee in that position with that specific employer.

 

      What is an undue hardship? Undue hardship is not defined in Title VII. However, the Supreme Court defined undue hardship in a 1977 case, TWA v. Hardison. They defined undue hardship as more than de minimis cost. I’ll let you decide whether you think that’s a great definition of undue hardship. It has been, perhaps not unsurprisingly, criticized by many. By way of comparison, the Americans with Disabilities Act, which was passed after the Hardison case, explicitly defines undue hardship as an action requiring significant difficulty or expense.

 

      This has been an ongoing legal issue in the courts. There’s been recent cert petitions the last couple terms raising this issue of whether Hardison’s definition of undue hardship is actually the correct definition. In a denial of cert, Justices Thomas, Alito, and Gorsuch agreed that in an appropriate case, the Court should consider whether Hardison should be overruled, recognizing that Hardison’s de minimis standard is not the most likely interpretation of undue hardship.

 

      In practice, courts vary as to how strictly they read more than de minimis, whether it is minimal or whether it’s actually a heightened more than de minimis. Things that are considered hardship are if it’s costly to the employer, such as if the employer has to hire an additional employee at a premium wage, whether it creates a security issue or a safety issue, such as for a woman who wants to wear a dress or skirts but is working on machinery. It could cause a safety issue if she doesn’t wear pants, so in that case, an accommodation would likely be denied as an undue hardship.

 

      An undue hardship also occurs if it infringes on the rights of other employees or if it impacts a seniority system that’s in place, whether it would require other employees to take on additional duties or to work on vacation or the like would be considered an undue hardship.

 

      I’ve talked about religious expression, nondiscrimination, and accommodation, and these are issues that apply to both secular organizations and also to federal and state governments. But in the federal government context and also in the state government context, there’s additional concerns and laws that might apply. The governments are constrained by the First Amendment, the right to free speech, free exercise of religion, the Equal Protection Clause, the clause against no oaths for religious office, the Religious Freedom Restoration Act. And federal government cannot disfavor religion.

 

      Now, you might be wondering what about the Establishment Clause? There’s been several court cases involving the Establishment Clause. Courts have held that it doesn’t violate the Establishment Clause to allow religious expression in the workplace and that it could violate the Free Exercise Clause, at least in the federal government context to limit that expression. There’s also additional laws, state laws, nondiscrimination laws that protect against religion. There’s some state RFRAs—the federal RFRA doesn’t apply to states—that could also apply in these cases.

 

      And then finally, I just want to conclude with what you do if you think you are experiencing religious discrimination in the workplace. If you think you need an accommodation, but the accommodation is denied, you can bring a charge of discrimination. You file a charge with the Equal Employment Opportunity Commission. You have 180 days to do so. You have to do that first before you go to federal court. You can’t bring a Title VII claim in district court first without going to the EEOC, whereas if you are bringing a First Amendment claim or RFRA claim or another claim under the Constitution, you can go to court first without having to go to the EEOC.

 

      If you’re in the federal government, you have 45 days to contact a counselor at the agency’s EEO office. EEO just stands for equal employment opportunity. And there’s an internal process for trying to resolve those issues.

 

      I will say, for healthcare employees that there are also protections under federal law conscience protections that protect your right to not participate in abortions or sterilizations that violate your sincerely held religious beliefs. HHS is in charge of enforcing those laws, and so you can file a complaint with the Office for Civil Rights on those healthcare conscience rights related issues. I’d encourage you to file both with the Office for Civil Rights and the EEOC, which requires accommodations under Title VII.

 

      And with that, I’ll turn it back over to Evelyn. It looks like we have a couple questions in the queue already.

 

Evelyn Hildebrand:  Great. Yes, thank you. That was an excellent presentation, and we’re very grateful for your time and your comments. Let’s go to audience questions, and as a note to your audience, please do feel free to enter your questions into the Q&A tab at the bottom of your screen.

 

      We’ll turn now to our first question from Ron Colombo, a bit of a long question. He says, “A fair number of employers are announcing religious exemptions to their imposition of COVID-19 vaccine mandates yet rejecting applications on the grounds that the employees have failed to demonstrate genuine, good-faith religious opposition to vaccination. They seem to be defining religion very narrowly, as perhaps only extending to those employees who have religious opposition to all vaccinations, not just the COVID-19 vaccine. Assuming that the exemption application was indeed framed in obviously religious terms, how could employers possibly prevail in court if these rejections are challenged in litigation?”

 

Rachel Morrison:  That’s a great question, and that’s obviously a question that is very live right now. It’s important for employers to recognize that concerns over COVID-19 don’t mean that they can just ignore religion in a way that they wouldn’t ignore religion in other circumstances. So the employer doesn’t get to define religion for the employee themselves. I think there’s issues over sincerity of whether employees have a sincere religious objection to a COVID-19 vaccine, and so asking the employee to explain the nature of that is permitted. However, onerous Q&As or making an employee write a theological treatise to justify it is probably bordering on potential prohibited activity. It’s a very sensitive topic.

 

      There’s a couple issues when an employee asks for an accommodation. The first is, is it religious, and is it sincerely held? And usually, the employers should assume sincerity unless there’s a reason not to. There’s different types of vaccines, and there’s different types of objections. So just because an employee objects to a specific vaccine doesn’t mean they necessarily object to all vaccines. Some employees object to all vaccines.

 

      If the objection is to putting something into their body, that would probably be all vaccines. If it’s something such as a vaccine, not the COVID vaccine, but other vaccines are used with certain animal products, there’s objections to that. For COVID-19, the religious objection seemed to be based on the fact that they were made with fetal cell lines -- the vaccines themselves weren’t, but the process of creating the vaccine used cell lines from aborted fetuses. And so that’s the religious objection to being part of that. And so that’s the first part.

 

      The second part is, is there a reasonable accommodation? This could be something such as mask wearing or physical distancing, working remotely. In the healthcare context, pre-COVID, there were a lot of hospitals that required flu vaccinations from their employees. EEOC actually brought a large number of these cases over, I think it was a five or six year period, I looked at cases EEOC had brought that were closed, and I think it was about 8 or 9 percent involved flu vaccinations. And so accommodations were generally mask wearing or not interacting with certain types of patients.

 

      And so then the third consideration in that case is whether it poses an undue hardship. A lot of that will go to, I think, the set-up of the business, the interactions that the person has, the current science on how much the vaccines actually prohibit transmission compared to, say, mask wearing, or transmission between vaccinated or unvaccinated.

 

      So there’s a lot of considerations, and it’s potentially somewhat business dependent. But I’d want to caution that employers need to be careful not to be hostile to religion when an employee is bringing their religious accommodation requests. And there’s a point where an employer goes too far of trying to tell the employee they don’t actually have a religious belief or trying to nitpick every little part of it without any kind of indication that the employee is bringing the religious accommodation claim pretextually, that they don’t actually have a sincere religious belief.

 

      And so that’s a very live issue. There’s a lot of, I think, concern over that issue and a lot of litigation that is either resulting, or will result, or potential. If you’re denied a religious accommodation and you’re fired and you think it was an incorrect denial, you can file a charge of discrimination with the EEOC and go through that process. Obviously, that’s not as ideal, but that’s basically where things stand right now.

 

Evelyn Hildebrand:  Just to follow up on that, my own curiosity, I know that some employers have put in place religious exemptions as the question had indicated, but then they put in place an appeal process. And the appeal process -- I’ve looked at some of the hoops that are included in that appeal process, and I’m wondering if the imposition of an appeal process following declining a person’s application for an exception, if that appeal would be a basis for filing with the EEOC?

 

Rachel Morrison:  I don’t think the appeal process itself -- what’s at issue is whether the employer is required to provide the reasonable accommodation without the undue hardship, and if they deny a reasonable accommodation that can be given without an undue hardship, that violates Title VII, whether that’s an initial denial or whether that’s after an appeal process itself.

 

      It’s usually good practice for an employee to exhaust the administrative remedies or the employer remedies of going through that process itself and not just stopping that process. You need to go through that process first and make sure you’ve exhausted the potential remedies you have internally and not just assume they’re not going to give you an accommodation and file a claim. You have to actually ask for the accommodation. You have to be denied the accommodation. You have to provide an explanation of what the objection is. You can’t just say, “I have a religious belief.” So there’s a process to go through.

 

      Another note on that I think is important to mention, I know on a number of employers are asking for religious leaders to provide documentation. You don’t have to have a religious leader sign off on your religious practice. Obviously, if a religious leader knows about it, it’s fine. But that’s not a requirement under the law to have a religious belief or practice that is entitled to protection itself.

 

Evelyn Hildebrand:  Great, thank you. All right, our next question, to change course a little bit, do employers have to accommodate religious views that disfavor LGBT individuals? So I think this gets to the, I would say, discrimination versus religious belief.

 

Rachel Morrison:  Yes, that’s a great question. I think I forgot to -- I was going to mention something about that, and I forgot to mention it. This often comes up -- accommodation issues come up, especially in the school context right now, in the courts involving preferred names or pronouns for transgender students. And so whether there’s an accommodation of teachers being able to use -- a reasonable accommodation that can be -- they are without an undue hardship is a live issue in the courts of whether there’s an alternative to that such as using last names or the like. Obviously, repeatedly, yeah, there’s that balance of whether there’s an accommodation.

 

      An undue hardship would exist to an accommodation if it is considered harassment. So if you’re accommodation is you’re calling an LGBT colleague or client or student, whoever, slurs, and you’re like, “My religion is that this is what these people are,” that would be considered an undue hardship to allow an accommodation to allow you to harass someone else. What is considered harassment? Obviously, slurs are on one end, but using a preferred pronoun or pronouns that correspond to biology is not something that’s settled in the courts of whether that’s per se harassment or not, or whether there’s alternatives to that.

 

      I think it’s important to recognize, just as a general matter, that Title VII itself protects against religious discrimination. It also protects against sex discrimination. After Bostock, sex includes homosexuality and transgender status. And so I think there’s a lot of ways for there to potentially be conflicts between the two, but there’s also a lot of ways where you can work alongside individuals that have different religious beliefs, different beliefs about sexuality and gender and marriage. And just working together and just recognizing that others might not share the belief but not doing it in such a way that’s harassment, being able to be professional. And so I think there’s protections for both under the law, and exactly where all those lines are, I think, are being litigated in the court.

 

      As far as in the religious employer context, that’s not something I’m going to get into for this talk. There’ll be a future webinar, again, to promote the future webinar on religious employers and their rights and whether that means they can fire individuals, potentially, who have different religious views on same-sex marriage, and that’s a very live issue in the courts as well.

 

Evelyn Hildebrand:  Great, thank you. I will now turn to the next question from Rob [inaudible 38:49]. I think that you answered this mostly, but in case you wanted to add anything else to your answer. What latitude does the EEOC give to employers to impose conditions while granting an accommodation? So I think that was the undue hardship that you mentioned. For example, an employer that grants an exemption to a vaccine requirement but then requires the employee to wear a mask, to wash their hands more frequently, or moves the individual to a less crowded area of the facility.

 

Rachel Morrison:  So I think that goes back to whether the accommodation is reasonable. If these are reasonable ways to alleviate the concern of spread of COVID, then that would probably be granted. You could see maybe certain instances where if you have to take a COVID test every hour, that’s probably not a reasonable accommodation at that point, like as an extreme.

 

      So it depends, I think, on the type of work, the employer’s business, what the concerns are itself. If the accommodations are imposed just to be vindictive and to be vindictive to employees who don’t want to receive a vaccine, and there’s not actually -- it’s not reasonable to alleviate whatever the concern is, then that’s potential harassment or discrimination on the employer’s part. But again, where that line is will be very fact dependent and something that I think is being worked out or will be worked out in the coming year or years on this issue.

 

Evelyn Hildebrand:  Great, thank you. Now, another question from Carl Olsen. He asks, “What about religious use of Schedule 1 hallucinogens, peyote and ayahuasca, for example? There’s no federal statutory right. Peyote, for example, is exempt by federal regulation and ayahuasca was found protected by RFRA in 2006 by the U.S. Supreme Court.”

 

Rachel Morrison:  Yes. Obviously, the Employment Division v. Smith involved peyote. If something is illegal under federal law and an employer, like a private employer, does not have to provide an accommodation because that would be considered an undue hardship to allow a violation of federal law.

 

      Now, when it comes to the federal government, there’s obviously the First Amendment, depending on what happens with Employment Division v. Smith, that might impact this. Obviously, RFRA exists, and RFRA provides additional protections. And so it’s not surprising that RFRA could apply to drugs in that case.

 

      I will say there’s a fun case out of the Tenth Circuit involving drug smugglers who claim to be part of the Church of the Cognizance, and this is why they needed to smuggle drugs. And the court found that this was pretextual. They didn’t actually have religious beliefs, and so their RIFRA claim failed because it wasn’t actually religious.

 

Evelyn Hildebrand:  Thank you. Now I think we’re back to the vaccine question. In the vaccine context, how does Title VII apply towards a state mandate like in New York where an employer might want to grant religious exemption to the vaccine mandate, but the state is preventing them?

 

Rachel Morrison:  In that case, the employer would not be required to provide an accommodation if state law prohibits it, I believe. There might be something else at issue that I’m not thinking of right now, but basically, if something is illegal, it’s an undue hardship for an employer to require it. If it’s a religious organization, there might be rights of the religious organization to conduct their organization, or church, or whatever it is, in a religious way that maybe conflicts with or by providing religious accommodations. But I’m not sure if I can think of anything off the top of my head for secular employers in that context.

 

Evelyn Hildebrand:  What if it were the other way because I’m wondering maybe if that was what the questioner was getting to, if the state is requiring businesses to implement a vaccine mandate and the employer would like to not comply. I think that’s the opposite configuration.

 

Rachel Morrison:  Yeah, I’m not sure what the New York mandate is specifically. But I think that if there’s a law that requires something, there would have to be some kind of legal right the employer has to not accommodate with something. There’d possibly be a RFRA claim that an employer could bring, or an employee could bring, that it substantially burdens their religion to have to require it. In that case, the state action would be the state law, and then if the employer wanted to give it. But I think the employee would have to bring the claim in court if the employer itself did not have a religious objection.

 

Evelyn Hildebrand:  Great, thank you. Let’s move to this question. Can you rank any -- you had discussed the division of the types of claims that you have come up with internally while you were in the EEOC, appearance, observance, expression, and forced participation. Could you rank the claims in order of likelihood to succeed?

 

Rachel Morrison:  I’m not sure if there’s a likelihood to succeed because, again, these cases are very fact dependent. Something I think such as like religious garb is often more likely to succeed because there’s going to be less likely an undue hardship opposed from maybe a safety issue. Courts have found that a uniform dress policy such as no caps for the Abercrombie case was not sufficient to not hire a Muslim who wanted to wear a hijab. So anything that doesn’t really require much effort on the employer’s part is more likely to succeed.

 

      There’s a lot of issues related to, I think, Sabbath observance and kind of depending on how much effort the employer has to go to to rearrange schedules, or whether there’s other employees that will volunteer to take those shifts. And again, that kind of goes back to what is the undue hardship? Is it just more than de minimis cost, and how much effort is that? Depending on the type of work, that could be more difficult.

 

      Any time it involves an interaction between an employee and other employees, that’s going to be more difficult. If it’s “I would prefer not to go to this holiday party,” that’s easy to accommodate. So it kind of depends on the specific employee and the type of work and the type of business the employee is working at as well.

 

      But we saw as far as common claims, I’d say appearance, the clothing and grooming were very popular. Sabbath observance, prayer break type cases were also very popular. And by popular, I mean were charges that were filed at the EEOC. And then also just kind of normal discrimination of “I wasn’t hired because I was X religion” or “I wasn’t promoted” or the normal disparate treatment type claims as well.

 

Evelyn Hildebrand:  Great. I think along that same kind of track, can an employer force an employee to attend a workshop that might subject the employee to be shamed for their political and religious beliefs? Would that be like the holiday party where it would be pretty easy for the employer to just allow someone not to attend?

 

Rachel Morrison:  Yeah. So I think it would depend on the matter of the workshop. If you’re shaming an employee because of their religious beliefs, that seems to border on religious harassment from the employer to the employee. And so that seems to be maybe on some extreme illegal.

 

      If it’s talking about -- I know there’s been a lot of issues related to trainings in the LGBT context and what are our nondiscrimination policies. Courts have basically said if it’s just informing employees that these are our policies, there is usually not an accommodation to get out of hearing about policies. But if it’s requiring an affirmative, like, “Oh, I agree with this,” or “I’m promoting this,” or “I think this is the best thing ever,” then that’s something where there’s room for an accommodation to not participate in, I don't know, the Pride Month celebration or whatever it is.

 

      I think this is also an issue in the race context, critical race theory, as well, which is beyond the scope. But I think there’s a lot of issues as far as employer-mandated trainings that go beyond just these are the policies, here’s how you need to act, or here’s how you need to think as well.

 

Evelyn Hildebrand:  Great. All right, to our next question. If an employer announces the existence of an exemption to its vaccine mandate—so back on the vaccine—kind of track of any kind, does it waive its right to argue that it could not accommodate a religious exemption; that is, to argue that a religious exemption would constitute an undue hardship?

 

Rachel Morrison:  I’m not sure if they waive the right, but I think it would be much harder to prove the undue hardship is -- you can potentially see a circumstance where out of 100 people, we can allow 10 people to not be vaccinated before it creates an undue hardship. But if you’re number 11, then maybe it creates an undue hardship. But I think it would be harder for the employer to prove that if they allow other employees to have accommodations for secular reasons and there’s nothing special about allowing just one more, it would be much harder for them to try to claim an undue hardship.

 

      You see this, I think, in the prison context where if you can allow, like Holt v. Hobbs, if you can allow a beard for medical reasons, you can also allow a quarter-inch beard for religious reasons as well. And so if you allow something for secular reasons, it’s much harder for the employer to say you also can’t have it for religious reasons without bordering on religious discrimination at that point.

 

Evelyn Hildebrand:  Great. Now, another question from Jeffrey Wood who is wondering about significant shifts in the EEOC following the departure of Sharon Gustafson.

 

Rachel Morrison:  Yes. Sharon was my boss, full disclosure, and when she got fired, my employment ended as well since my employment was tied to her. Unfortunately, there were efforts to stop the work we were doing for the religious discrimination work group. And we had held listening sessions on religious discrimination with a variety of interested stakeholders from a variety of perspectives. We complied a report discussing all of that information. It was posted on the website.

 

      But right before Sharon got fired, the report was taken off. The press release about the report was taken off. Her eight-minute podcast talking about the listening sessions and the report was taken off. And so I don't know exactly what’s happening at the EEOC right now as I am no longer there. But it was really unfortunate that that was being silenced under the new administration.

 

      The report is public. It was shared. If you want a copy, I’m happy to provide you with a copy of that as it is a public document. But that happened right before Sharon got fired. Whether it’s related or not, she was not given a reason for why the president wanted to fire her early from her four-year term that was established by statute, which is another issue, whether the president has power to do that or not without cause. But all that to say is that happened right before we left, and I’m not sure exactly what all is going on at the EEOC right now.

 

Evelyn Hildebrand:  Is any of that material available elsewhere, the report that you compiled? As a side note to our audience, if you are interested in a copy of it, I’m sure that, so long as you’re able to share that with me, Rachel, then we can certainly make that available to people.

 

Rachel Morrison:  Yeah, I can share it with you. I don't know if it’s linked anywhere online. We had emailed it. It was a public report issued by the EEOC. It’s publicly available on the website, and it was emailed to the participants of the listening session. It’s no longer on EEOC’s website. But I can share that with you, and if anyone is interested, they can reach out and get a copy of that.

 

Evelyn Hildebrand:  Yes, that would be great. I would much appreciate it. Thank you. Do you have any other comments that you were interested in sharing? I do have a question that I’m curious to know your reaction to, or you’re welcome to make some additional comments.

 

Rachel Morrison:  Go ahead. What’s your question?

 

Evelyn Hildebrand:  Okay. I’m just curious, and you kind of touched on this with the discussion about the drug runners in the Tenth Circuit where the court found that their religious belief is not sincerely held, or it was pretextual, I think is what you had said. I’m wondering how courts are able to handle looking at religious claims to determine whether a religious belief is sincerely held, whether it’s pretextual, because I know that it’s certainly been raised to me before. Someone could claim to have a sincerely held religious belief that assaulting people is required by their religion, and that’s probably -- that’s an easy one, I suppose. But I guess that’s really the question is where did the court look to for that kind of guidance or that kind of question?

 

Rachel Morrison:  Yeah. Whether a religious belief is sincerely held is almost always assumed by the courts. It’s almost never an issue. Usually, something pretextual is like statements to the opposite, or a new-found religious belief that just happens to be convenient. So it’s a very fact-specific situation, but it’s almost always assumed by the courts.

 

      And until maybe COVID-19 vaccines, it’s, I think, generally been assumed by employers. They don’t usually question, unless there’s some obvious reason of you ask for a secular reason, and now you’re asking for a religious reason after we denied for the secular reason. It’s almost always assumed. The religious claim might fail for other reasons, but usually not because it’s not sincerely held.

 

      So I’m thinking, obviously, even if you did have a religious belief to assault others, there’d be reasons to stop that apart from whether it was sincerely held. And so, often, courts will just assume or litigants in the case will just assume sincerity, and then the claims will be defeated on another basis such as undue hardship, which would be the case in that case.

 

Evelyn Hildebrand:  Great, very interesting. Okay, at this point, we are approaching the end of the hour, so if you have any closing comments that you would like to make, please do feel free. And we’re very much looking forward to part two of the series. But I’ll turn the floor back over to you for any closing comments.

 

Rachel Morrison:  Awesome. Thanks, Evelyn, and thank you, everyone, for listening. As I mentioned, I’ll share the report we compiled on religious discrimination listening sessions with my former boss, Sharon Gustafson, General Counsel of EEOC.

 

      And then, also, if you want to know more, the EEOC religion guidance, which was updated January 15, 2021, is very helpful on these topics. It provides an overview of what I talked about as far as other nuances of employment law as it relates to religious discrimination. If you google EEOC religion guidance, it should pop up. It’s Section 12, Religious Discrimination, Section 12 of the guidance. So that’s really helpful. It has cases and it has examples to help you think through these issues.

 

      Of note, the guidance itself is not legally binding as EEOC doesn’t have rulemaking authority under Title VII, but it’s a great resource. I referred to it a bunch while at the EEOC, and also now that I’m not at the EEOC as well. So I’d encourage you to look there for more information.

 

Evelyn Hildebrand:  Wonderful. Thank you. Thank you so much for your time, to our audience for sending in your questions. We welcome listener feedback be email [email protected]. And particularly with reference to the report, if you would like a copy of it, then I’d be happy to send it to you once Rachel has sent it to me. So please do let me know if you would like a copy. And until part two of the series, we are adjourned. Thank you.   

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.