Dallan Flake (Ohio Northern University, Pettit College of Law) has posted Interactive Religious Accommodations on SSRN. Here is the abstract:
This Article argues employers should be required to engage in the same interactive process with employees seeking religious accommodations as they are with employees seeking disability accommodations. The interactive process generally obligates the employer and employee to work together in good faith to determine whether the employee can be reasonably accommodated. Neither the Americans with Disability Act nor Title VII of the Civil Rights Act explicitly mandates the interactive process, yet courts routinely read this requirement into the former statute but not the latter. The practical effect of this distinction is that religious accommodations generally are more difficult to obtain, and employees seeking such accommodations have less control over the process and outcome. The one-sided nature of the religious-accommodation process may discourage employees from seeking accommodations altogether, thus forcing them to choose between their jobs and their religious beliefs — the very conundrum Title VII seeks to avoid. It may also lead to an increase in litigation by employees who are frustrated by an employer’s decision either to not offer an accommodation at all or to provide an accommodation they consider unreasonable. Without an interactive-process requirement, these concerns are likely to intensify as religious accommodation conflicts become increasingly commonplace in years to come.