{"id":6272,"date":"2014-07-01T00:00:00","date_gmt":"2014-07-01T00:00:00","guid":{"rendered":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2014\/07\/01\/a-civil-right-tested-part-2-title-vll-and-beyond\/"},"modified":"2014-07-01T00:00:00","modified_gmt":"2014-07-01T00:00:00","slug":"a-civil-right-tested-part-2-title-vll-and-beyond","status":"publish","type":"post","link":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2014\/07\/01\/a-civil-right-tested-part-2-title-vll-and-beyond\/","title":{"rendered":"A Civil Right Tested &#8211; Part 2: Title Vll and Beyond"},"content":{"rendered":"<p>\n\t<strong>Article Series<\/strong><\/p>\n<ul>\n<li>&nbsp;<a href=&quot;http:\/\/www.libertymagazine.org\/article\/a-civil-right-tested-part-1-title-vll-and-beyond&quot;>A Civil Right Tested &#8211; Part 1: Title Vll and Beyond<\/a><\/li>\n<\/ul>\n<p><a href=&quot;http:\/\/www.libertymagazine.org\/article\/a-civil-right-tested-part-1-title-vll-and-beyond&quot;><\/a>\n<\/p>\n<hr id=&quot;horizontalrule&quot;>\n<p>\n\tThe Supreme Court had an opportunity to revisit religious discrimination in Ansonia Board of Education v. Philbrook.1 Ronald Philbrook taught classes in a<br \/>\n\tpublic high school in Ansonia, Connecticut.2 Subsequent to his hiring, he became a member of the Worldwide Church of God.3 The Worldwide Church of God<br \/>\n\trequired that its members not work on designated holy days, which caused Philbrook to miss about six workdays a year.4 The school board and teachers union<br \/>\n\tnegotiated a collective-bargaining agreement that provided for 18 days of sick leave per year.5 Three sick days could be used for the observance of<br \/>\n\treligious holidays.6 Philbrook requested that the school board allow him either to use three days of personal business leave to observe the holy days or to<br \/>\n\tpay the cost of a substitute teacher for days that were not covered by the collective bargaining agreement.7 The school board rejected both alternatives<br \/>\n\tbut allowed Philbrook to take unpaid leave on those days.8 The Supreme Court held that while permitting unpaid leave would generally be a reasonable<br \/>\n\taccommodation, such a policy would be discriminatory if an employer permitted paid leave to be used flexibly for all purposes except religious ones.9 It<br \/>\n\tfurther held that there was no need for an employer to choose the accommodation that the employee prefers.10 Rather, once an employer has offered any<br \/>\n\treasonable accommodation, the employer has met its burden.11<\/p>\n<p>\n\tAfter Philbrook, employers need only show that they have offered a reasonable accommodation to an employee. It need not be the accommodation preferred by<br \/>\n\tthe employee or the most advantageous to the employee.12 Philbrook seemed to look at reasonableness through the eyes of the employer rather than the<br \/>\n\temployee.13 This interpretation of Title VII relieves employers of any obligation to work with an employee to come up with an accommodation that solves the<br \/>\n\temployee\u2019s problems.14<\/p>\n<p>\n\tThis reading of Title VII seems to contravene the congressional intent with respect to protecting religious employees\u2019 rights.15 Senator Jennings Randolph<br \/>\nintroduced the amendment to section 701(j) of Title VII specifically to deal with situations like those later addressed in<br \/>\n\t<em>Trans World Airlines, Inc., v<\/em>. Hardison.16 Additionally, the legislative history, while admittedly slim, does provide guidance as to what might or<br \/>\n\tmight not constitute an \u201cundue hardship.\u201d17<\/p>\n<p>\n\tIndeed, 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<br \/>\n\texercise of their faith.18 According to the legislative history, an accommodation would not be reasonable if an employee had to make this choice.19<br \/>\n\tDeparting from the legislative history, Hardison and Philbrook turned the tables on the amendment and made the employer rather than the employee the focus<br \/>\n\tof the inquiry.20<\/p>\n<p>\n\tGiven that the Supreme Court has not addressed the issue of religious employment discrimination since Philbrook, it is not surprising that the lower courts<br \/>\n\thave followed the standards set forth in Hardison and Philbrook. This has resulted in lower courts\u2019 finding an undue hardship if an accommodation would<br \/>\n\tresult in any cost to the employer.21<\/p>\n<h2><strong><br \/>\nReasonable Accommodations Under the Americans With Disabilities Act<\/strong><\/h2>\n<p>\n\tThe key to protecting the ability of religious employees to resolve conflicts between their religious obligations and workplace obligations lies in a<br \/>\n\trevisiting of the reasonable accommodation regime that evolved after Hardison and Philbrook. Although Title VII, its legislative history, and Equal<br \/>\n\tEmployment Opportunity Commission (EEOC) guidelines all contemplate an expansive reading of what constitutes a reasonable accommodation, there has been<br \/>\n\tanything but an expansive reading.22 The level of effort that is required of employers when providing a reasonable accommodation is so slight as to be<br \/>\n\tnonexistent. Employees, meanwhile, face numerous challenges as they try to acquire accommodations.<\/p>\n<p>\n\tNumerous commentators have embraced the approach toward reasonable accommodations in Title II of the Americans With Disabilities Act (ADA), which is<br \/>\n\tcodified at sections 12131 to 12165 of title 42 of the United States Code.23 The ADA is instructive in how it deals with accommodations to persons with<br \/>\n\tdisabilities. The similarities in religious discrimination and discrimination against people with disabilities also make the approach taken in the ADA a<br \/>\n\tgood model for Title VII accommodations.24<\/p>\n<h2><strong><br \/>\nSimilarities Between Religious Discrimination and Discrimination Based on Disability<\/strong><\/h2>\n<p>\n\tAlthough people of faith have faced challenges in the workplace, those challenges are usually not a result of irrational discrimination on the basis of<br \/>\n\ttheir religion. The discrimination is generally a result of economics and workplace harmony. For example, if a Sabbatarian wishes not to work on their day<br \/>\n\tof worship, their employer may deny the request because someone cannot be found to work as a replacement without having to pay overtime.25 The denial,<br \/>\n\ttherefore, is not based on the religion of the employee but on the economics of the situation.<\/p>\n<p>\n\tSimilarly, if an employee wishes to groom in a particular manner despite workplace rules against the grooming, the employer risks the other employees\u2019<br \/>\n\tfeeling as if the religious employee were given favored treatment because of their religion. While the views of the employees who were not given the<br \/>\n\taccommodation 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<br \/>\n\tmakes when assessing the cost of the accommodation.<\/p>\n<p>\n\tDiscrimination based on disability and the goals of the ADA are similar to employment discrimination based on religion and the goals of Title VII.<br \/>\n\tEmployers generally discriminate against disabled persons not because they are disabled but for economic reasons.26 Employers refuse to accommodate<br \/>\n\tdisabled persons because the employers do not wish to spend the money to make their workplaces accessible to disabled employees.<\/p>\n<p>\n\tReligious discrimination and discrimination based on disability also are similar in that they are treated differently than the other Title VII categories.<br \/>\n\tTitle VII does not require an accommodation for race, gender, or national origin. More important, Title VII attempts to eradicate the irrational, invidious<br \/>\n\tdiscrimination based on race, gender, and national origin.27<\/p>\n<p>\n\tTitle 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<br \/>\n\twill bear an additional cost. In adopting Title VII and the ADA, Congress said that society and the workplace would be better if these employees were fully<br \/>\n\table to participate in the workplace despite having a need for an accommodation based on either a religious belief or disability.<\/p>\n<p>\n\tDespite these similarities, the accommodations provisions of Title VII and the ADA have differed in their application. The Title VII provisions have been<br \/>\n\tconstrued very narrowly,28 while the ADA provisions have been construed more broadly.29<\/p>\n<h2>\nT<strong>he ADA and Reasonable Accommodation<\/strong><\/h2>\n<p>\n\tThe ADA prohibits discrimination against qualified individuals who are able to perform essential job functions \u201cwith or without reasonable<br \/>\n\taccommodation.\u201d30 A person is considered disabled if she is \u201csubstantially [limited]\u201d in at least one \u201cmajor life [activity]\u201d by \u201ca physical or mental<br \/>\n\timpairment,\u201d has \u201ca record of . . . impairment,\u201d or is perceived as impaired.31<\/p>\n<\/p>\n<p>\n\tThe ADA provides that an employer may not discriminate against \u201ca qualified individual [with a] disability.\u201d32 A qualified individual is one with a<br \/>\n\tdisability \u201cwho, with or without reasonable accommodation, can perform the essential functions\u201d of the relevant \u201cemployment position.\u201d33 An employer<br \/>\n\tdiscriminates under the ADA when it does not make a reasonable accommodation for a qualified employee\u2019s known physical or mental limitations unless the<br \/>\n\temployer can show that the accommodation would impose an undue hardship on the employer\u2019s business.34<\/p>\n<p>\n\tAn undue hardship is defined in the ADA as an action requiring \u201csignificant difficulty or expense.\u201d35 Factors that may be considered in determining if an<br \/>\n\tundue hardship exists include: (1) the nature and cost of the accommodation; (2) the financial resources of the business; (3) the overall size of the<br \/>\n\tbusiness, including the number and location of the facilities; and (4) the operation of the business, including the composition of its workforce.36 In<br \/>\n\taddition to the statute, the EEOC has provided guidance as to how \u201creasonable accommodations\u201d and \u201cundue hardship\u201d should work in practice.37<\/p>\n<p>\n\tThe seminal Supreme Court case dealing with reasonable accommodation in the ADA context is U.S. Airways, Inc., v. Barnett.38 In Barnett, an employee,<br \/>\n\tBarnett, transferred to a less physically demanding position in the mailroom because of a disability.39 Subsequently, Barnett learned that he would not be<br \/>\n\table to keep the position because of a union seniority system.40 Barnett ultimately lost his job when U.S. Airways would not make an exception to the<br \/>\n\tseniority rules.41 Barnett sued under the ADA asserting, inter alia, that the mailroom position was a reasonable accommodation for his disability and that<br \/>\n\tU.S. Airways discriminated against him when it did not allow him to keep the position.42<\/p>\n<p>\n\tThe 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.43<br \/>\n\tThe 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<br \/>\n\tanalysis of undue hardship.44<\/p>\n<p>\n\tDuring the analysis of the parties\u2019 arguments with respect to what would constitute a reasonable accommodation in this case, the Supreme Court, in response<br \/>\n\tto U.S. Airways\u2019 arguments, stated that \u201cby definition any special \u2018accommodation\u2019 requires the employer to treat an employee with a disability<br \/>\n\tdifferently, i.e., preferentially.\u201d45 In other words, a reasonable accommodation is not one that treats the employee neutrally. Rather, it gives employees<br \/>\n\topportunities to function in the workplace, which they would not have had without the accommodation. The accommodation is not neutral because employees who<br \/>\n\tare not disabled are not given the same preferences.<\/p>\n<p>\n\tAs the Court further reasoned, \u201cneutral\u201d rules would be of little help to employees who need accommodation. The employee who cannot travel higher than the<br \/>\n\tground floor is not helped by a neutral office-assignment policy.46 A neutral rule regarding spending on office furniture does not help the employee who<br \/>\n\tneeds an ergonomic desk or chair because of a disability.47 Thus, while neutral workplace rules that are generally applicable are to be considered when<br \/>\n\tformulating a reasonable accommodation, they are not the end of the analysis.48<\/p>\n<p>\n\tThe Supreme Court also rejected Barnett\u2019s interpretation of reasonable accommodation. Barnett urged the Court to interpret the reasonable accommodation<br \/>\n\tprovisions so that the word \u201creasonable\u201d is synonymous with the word \u201ceffective.\u201d49 The Court rejected this interpretation.50 While an accommodation must<br \/>\n\tbe effective if it is to eliminate the impediment that the employee is facing, that has no bearing on the accommodation\u2019s reasonableness.51 The Court<br \/>\n\tultimately reversed and remanded the case back to the court of appeals for further proceedings in light of the reasoning of the Court.52<\/p>\n<p>\n\tAn example of the ADA reasonable accommodation regime after Barnett comes from a recent case in the First Circuit, Tobin v. Liberty Mutual Insurance Co.53<br \/>\n\tIn Tobin the plaintiff was a salesman suffering from bipolar disorder.54 Tobin had many deficiencies as a salesman because of his disorder.55 He asked his<br \/>\n\temployer to transfer him to a certain type of account that he felt would accommodate his disability.56 Liberty Mutual refused the transfer in part because<br \/>\n\tof Tobin\u2019s past performance as a salesman.57 The court of appeals dealt with the plaintiff\u2019s performance and how it affected a reasonable accommodation by<br \/>\n\trelying on Barnett, stating that an accommodation cannot be deemed unreasonable solely because the employee has failed to meet standard eligibility<br \/>\n\trequirements.58 While the court noted that the existence of an impersonal seniority system might mean that a transfer could upset another employee\u2019s<br \/>\n\texpectation of fair and uniform treatment, it also found that no such system was in place at Liberty Mutual.59<\/p>\n<p>\n\tThe court next dealt with whether the accommodation of moving Tobin to a different position with more responsibility would be an undue hardship to Liberty<br \/>\n\tMutual.60 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<br \/>\n\table to mitigate those risks.61<\/p>\n<p>\n\tThis approach to reasonable accommodation and undue hardship is vastly different than the approach taken in Title VII religious discrimination cases. Under<br \/>\n\tthe 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<br \/>\n\tend of the analysis.62 Under Title VII the analysis stops when the employer is able to prove that the accommodation would have presented more than a de<br \/>\n\tminimis burden.63 Under the ADA, however, more is required of the employer than just presenting evidence that there would be a cost to accommodate the<br \/>\n\temployee.<\/p>\n<p>\n\tThe 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<br \/>\n\tworkplace. While the needs of employers are taken into account, those needs do not rise above the goals of the ADA.<\/p>\n<p>\n\tModeling the Title VII employment discrimination reasonable accommodation regime after the ADA has been criticized. The main criticisms against such a<br \/>\n\tchange 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<br \/>\n\tpersons covered, numbering 43 million in 1990, while Title VII has no such limitation and could reach the entire American workforce.64 This paper addresses<br \/>\n\teach argument in turn.<\/p>\n<p>\n\tFirst, it is true that the ADA\u2019s legislative history is more extensive than the legislative history of Title VII religious discrimination. That does not<br \/>\n\tmean, 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<br \/>\n\tquite clear why he offered the amendments to Title VII.65 Given those statements and the Dewey v. Reynolds Metals decision which were the impetus behind<br \/>\n\tthe amendments, the reasoning and intent of the amendments are clear if not extensive.66 Senator Randolph wished to enable people of faith to practice<br \/>\n\ttheir faith and meet workplace obligations without fear of losing their jobs. While what constituted a reasonable accommodation was not defined in the<br \/>\n\tstatute, the EEOC did attempt to define \u201creasonable accommodation\u201d based on its understanding of what Congress was trying to accomplish.67<\/p>\n<p>\n\tThe second argument against treating religious discrimination claims like ADA claims deals with the scope of the ADA versus the scope of Title VII. The<br \/>\n\targument 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,<br \/>\n\taccordingly, the reasonable accommodations scheme should not be expanded.68 The argument fails to acknowledge, however, that changing the Title VII<br \/>\n\treasonable 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<br \/>\n\treligious discrimination claims when they have no reason to do so.<\/p>\n<p>\nProfessor James Sonne also criticizes applying the ADA approach to religious accommodations because doing so would raise the burden on employers<br \/>\n\t<sup>69<\/sup> because the ADA uses \u201csignificant difficulty or expense\u201d where Title VII uses \u201cundue hardship.\u201d70 In other words, an employer must offer an<br \/>\n\taccommodation under the ADA more frequently than under Title VII. Under the ADA an accommodation must be offered unless that accommodation poses<br \/>\n\tsignificant difficulty or expense.71 The ADA formulation is an attempt to balance the accommodation of the employee with the needs of the employer. This<br \/>\n\tbalance, however, has been criticized.72<\/p>\n<p>\n\tSonne discusses accommodations that have been deemed reasonable under the ADA and concludes that the extra cost and expense of adopting the ADA standard in<br \/>\n\tTitle VII cases would not be in the best interest of employers.73 For example, hiring a reader for an employee with a vision disability, providing private<br \/>\n\tparking for an employee with a walking disability, and supplying a text telephone for a hearing-impaired employee have been considered reasonable<br \/>\n\taccommodations under the ADA, even though the employers had to bear the cost of the accommodation.74 Because these accommodations are more than the de<br \/>\n\tminimis standard of Hardison, Professor Sonne looks disfavorably on them.75<\/p>\n<p>\n\tHowever, 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<br \/>\n\tconflicts between their faith and their work obligations.76 It is true that employers would bear an extra cost in accommodating these employees,77 but that<br \/>\n\tcost would be balanced by the benefit of having a workplace that respects religious pluralism.<\/p>\n<p>\n\tHad the ADA standard been applied in Hardison, the result would almost certainly have been different. Had Trans World Airlines accommodated Hardison in his<br \/>\n\tpreferred way, it would have incurred a cost of $150 per month for three months.78 It is unlikely that $150 would have been considered a \u201csignificant<br \/>\n\tdifficulty or expense,\u201d79 and Hardison would have been accommodated. The extra cost to the company should not have been enough to deny Hardison an<br \/>\n\taccommodation so that he could have kept both his religious and work commitments.<\/p>\n<p>\n\tEven accommodations that do not have direct financial costs are not looked on kindly under Title VII.80 Analysis of those accommodations under the ADA<br \/>\n\tstandards would mean that employers\u2019 burdens would increase from the current Title VII standard.81 Under the ADA, accommodations such as involuntary shift<br \/>\n\tswaps, mandated breaks, or transfer of duties might well be required in order to meet the \u201csignificant difficulty or expense\u201d standard for<br \/>\n\taccommodations.82 Again, this increased \u201cburden\u201d on employers just brings balance to the accommodation regime.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Article Series &nbsp;A Civil Right Tested &#8211; Part 1: Title Vll and Beyond The Supreme Court had an opportunity to revisit religious discrimination in Ansonia Board of Education v. Philbrook.1 Ronald Philbrook taught classes in a public high school in Ansonia, Connecticut.2 Subsequent to his hiring, he became a member of the Worldwide Church of<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[301],"tags":[133],"class_list":["post-6272","post","type-post","status-publish","format-standard","hentry","category-july-august-2014","tag-july-august-2014"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6272","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6272"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6272\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6272"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6272"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6272"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}