Roberto L. Corrada (University of Denver Sturm College of Law) has posted The Interrelationship of Discrimination and Accommodation in Title VII Religion Cases on SSRN. Here is the abstract:
When Title VII was enacted in 1964 it prohibited discrimination on the basis of religion. During the 1960s and early 1970s a glaring weakness in Title VII’s approach became obvious—that in order to meaningfully ensure protection of religious belief in the American workplace, accommodation of religious practice was necessary as well. In 1972, Title VII was amended to require that employers reasonably accommodate religious practices of employees.
After 1972, cases of religious discrimination not involving accommodation followed the traditional prima facie requirements for Title VII race cases initially set out in McDonnell Douglas. Accommodation cases, however, followed a different framework of prima facie case requirements. Generally, in those cases, an employee must show 1) that he or she has a bona fide and sincerely held religious belief/practice that conflicts with an employment requirement, 2) that the employee informed the employer of this belief (or that the employer knew about the belief, however discovered), and 3) the employee was disciplined for failing to comply with the requirement. After such a prima facie showing, the burden of persuasion shifts to the employer to show that the employer offered a reasonable accommodation for the religious practice. If the employer cannot show it offered such an accommodation, its only hope to avoid liability is to show that any reasonable accommodation would have resulted in an undue hardship to the employer.
Since 1972 virtually all courts have treated religion claims as either disparate treatment or accommodation cases. Treatises and books also generally tend to treat the claims as separate. Very seldom do courts or scholars talk about the confluence of the two. What happens, though, if an accommodation case is suffused with bias or even hostility to the religious objector? Does the case follow the traditional bias framework or does it follow the accommodation framework or does it follow both? At least one employer has argued in the course of litigation that the accommodation framework trumps the bias framework in such cases. One federal court has taken this approach as well. Therefore, regardless of any bias, the relevant issues in the case should involve only reasonable accommodation and undue hardship. The implications of this approach are disturbing in that issues of bias involve determinations of credibility by a jury whose findings are heavily deferred to by judges or appellate courts while issues of accommodation are more technical, rational, and legal in nature, often resulting in more judicial involvement both at the summary judgment and appellate stages.
This article will explore the interrelationship between accommodation and discrimination in Title VII religion cases. The article will analyze the legislative history and the EEOC regulations surrounding the religion discrimination provision passed in 1964 and the accommodation amendment enacted in 1972 to glean congressional and administrative agency thinking about the two claims. The piece then will analyze the relationship in the context of two federal circuit court cases where the line between discrimination and accommodation became substantially blurred. Finally, the article will argue that the disparate treatment/bias framework should trump the accommodation framework when evidence of bias is present because the accommodation framework implicitly assumes employer neutrality as a starting point for any discussion of accommodation. The article maintains that in cases where the employer is not neutral on the issue of religious belief or practice, the employer cannot benefit from the defenses and arguments available to it in accommodation cases. In addition, the article will propose that in accommodation cases involving direct evidence of bias but not enough so that disparate treatment can be proved, the employer should not be allowed to defend on the grounds of undue hardship either.