\n\tReligion is a complicated and controversial part of American society.1 A majority of Americans state that religion is very important to them.2 At the same
\n\ttime, a majority of Americans believe that religion should have less of a role in the public square.3 The public square consists of people with varying
\n\treligions and religious beliefs. If an individual\u2019s belief does not infringe upon others\u2019 beliefs, there is no problem. But when the beliefs affect others,
\n\tlike in the workplace, controversy is likely to occur.\n\t<\/p>\n
\n\tThis paradox underscores the importance of the Constitution\u2019s religion clauses to society: the establishment clause protects those who do not want to have
\n\treligion dictated to them by the government, and the free exercise clause protects the right of individuals to practice their religions without
\n\tinterference from government.4 While an exhaustive examination of the religion clauses is beyond the scope of this paper, they still must be examined in
\n\torder to gain a fuller understanding of the issues involved with Title VII religious-discrimination cases.\n\t<\/p>\n
\n\tConstitutional considerations must be evaluated if the ADA (Americans With Disabilities Act) regime is to be adopted in Title VII religious-discrimination
\n\tcases. Religion is protected by the Constitution through the First Amendment, while disability is not.5 While the establishment clause does at first blush
\n\tappear to pose a constitutional barrier, in actuality it does not. Indeed, it can be argued that the establishment clause actually favors more
\n\taccommodation.6 Similarly, employees might argue that the free exercise clause is necessary to allow them to practice their religion while still keeping
\n\ttheir workplace obligations.\n\t<\/p>\n
\n\tGenerally the establishment clause attempts to provide a separation of church and state by mandating that the government remain neutral toward all \n\tPursuant to Lemon<\/em>, a law must: (1) have a secular purpose; (2) not have the principal effect of advancing or restricting religion; and (3) must not \n\tWhile at first glance the establishment clause might appear hostile toward religion, it was an attempt by the Framers to protect religious freedom for \n\tOne commentator has examined religious expression in the workplace and concluded that the balance of public accommodation has swung too far in favor of \n\tDuring the 1980s the Supreme Court began to allow more religious expression in the public square.16 Professor Nantiya Ruan postulates that this development \n\tIn addition to the principles of neutrality and separation of church and state, some commentators have stated that the Supreme Court has used the \n\tProfessor Jamar states that \u201cofficial tolerance requires the state to permit a wide range of religious actions, even when those actions are antithetical, \n\tThe principle of accommodation allows the government to take steps to favor religion \u201cby allowing it room to exist,\u201d and that principle \u201cextends to steps \n\tThe free exercise clause was designed to allow individuals to practice their religion without government interference. However, the usefulness of the free \n\tProfessor Alan Brownstein has written on how religion should be analyzed for free exercise purposes.30 He has identified issues that must be addressed if \n\tProfessor Brownstein answers the question in the affirmative, but then asks how the free exercise doctrine should deal with the fact that granting a \n\tAlthough the thought that religious individuals must mitigate any secular benefit they may receive as a result of a privileging accommodation is \n\tThere is another justification for mitigating the secular benefit received by the granting of free exercise rights. In the Title VII context, if, for \n\tThis reluctance to require more than a de minimis<\/em> accommodation by employers seems to be inapposite to the societal goal of allowing members of all \n\tIn recent years religion has taken on a greater role in the lives of Americans.43 As the practice of religion has become more prevalent, many question the \n\tMinority religions pose challenges in the workplace that are harder for employers to accommodate. While employers might not want to allow employees time \n\tIf Americans truly believe in cultural and religious diversity, then ensuring that minority religions are able to resolve conflicts between religious \n\tFreedom of religion is a concept that most Americans believe is fairly straightforward. The Constitution protects individuals\u2019 rights to practice their \n\tIn Employment Division v.<\/em> Smith<\/em> the Supreme Court held that an individual\u2019s free exercise rights are not violated by the obligation to comply \n\tThe Smith<\/em> Court based its decision on two grounds. First, it did not support a regime in which individuals obeyed laws only to the extent that the \n\tThere is a disconnect between the rhetoric on the value of religion in society and the protection afforded to employees of faith who encounter conflicts \n\tThe ADA has provided a guide on how to strengthen reasonable accommodations given to employees.57 The ADA model offers greater balance in the analysis of \n\tWhile religious-discrimination cases are covered by Title VII, there are many differences between religion and the other covered Title VII categories. \n\tIn a religious pluralistic society, the religious rights of all must be respected and protected. Forcing employees to choose between their faiths and their Religion is a complicated and controversial part of American society.1 A majority of Americans state that religion is very important to them.2 At the same time, a majority of Americans believe that religion should have less of a role in the public square.3 The public square consists of people with varying religions and religious beliefs.<\/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":[303],"tags":[135],"class_list":["post-6283","post","type-post","status-publish","format-standard","hentry","category-november-december-2014","tag-november-december-2014"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6283","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=6283"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6283\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6283"}],"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=6283"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6283"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n\treligion.7 Specifically, the current test for the establishment clause was enunciated in Lemon v. Kurtzman<\/em>.8\n\t<\/p>\n
\n\tfoster an \u201cexcessive governmental entanglement with religion.\u201d9\n\t<\/p>\n
\n\tall.10 If the government were allowed to favor one religion over another, the religious rights of the nonfavored religion would, of course, be lesser than
\n\tthe favored religion.11 Thus, the Constitution mandates neutrality toward all religions rather than favoritism toward any particular religion. Despite this
\n\tneutrality toward specific religions, the establishment clause is not violated when the government includes religious institutions along with secular
\n\tinstitutions when distributing certain benefits.12\n\t<\/p>\n
\n\temployees.13 This is in spite of the fact that the Supreme Court has become more receptive to religious expression in the public square since the 1980s.14
\n\tDespite the evolution of establishment clause jurisprudence, Title VII religious-discrimination law has not allowed the same level of religious expression
\n\tand practice in the workplace.15\n\t<\/p>\n
\n\twas a result of the Court \u201creturning to the religious clauses\u2019 historical roots and encouraging religion for the betterment of society.\u201d17 While this is a
\n\tcontroversial conclusion, especially in light of the number of Americans who wish to limit religion\u2019s reach into the public square, it is likely an
\n\taccurate assessment of the Court\u2019s thinking.\n\t<\/p>\n
\n\tprinciples of tolerance and accommodation in its establishment clause jurisprudence.18 Professor Steven Jamar uses these principles, as well as the
\n\tprinciples of neutrality, equality, and inclusion, to advocate a new approach to Title VII religious-discrimination cases.19\n\t<\/p>\n
\n\tto some extent, to the general welfare.\u201d20 It is this tolerance that allows Title VII to include religion in the list of protected classes.21 Professor
\n\tJamar states that this tolerance of religion is actually a nonneutral position.22 The government has actually favored religion insofar as it has declared
\n\tthat the practice of religion cannot be discriminated against in employment decisions.23\n\t<\/p>\n
\n\twhich differentially benefit religion.\u201d24 Accommodation in the context of Title VII refers, of course, to what employers must do to enable employees to
\n\tpractice their religion and retain their jobs.25 The principle of accommodation allows the government to move beyond the simple neutrality of the
\n\testablishment clause.26\n\t<\/p>\n\n\tB. Free Exercise
\n\t<\/h2>\n
\n\texercise clause is questionable after the Supreme Court\u2019s decision in Employment Division v. Smith<\/em>.27 In Smith<\/em>, the Supreme Court held that
\n\tthe free exercise clause will not excuse an individual\u2019s noncompliance with a \u201cvalid and neutral law of general applicability on the ground that the law
\n\tproscribes . . . conduct that his religion prescribes.\u201d28 The Smith<\/em> decision leaves people of faith little recourse if their ability to practice
\n\tthat faith is hampered by a law of general applicability.29\n\t<\/p>\n
\n\tthe free exercise of religion is to be protected. The first of those issues is the privileging of religion.31 When the right of individuals to exercise
\n\ttheir religion is enforced, those persons are given a benefit that nonreligious persons do not receive.32 That privilege also applies to religious
\n\tinstitutions that receive benefits from the state, such as tax exemptions.33 With regard to privilege, Professor Brownstein states that the issue is not
\n\twhether religious individuals should receive different treatment than nonreligious individuals, but, rather, whether the exercise of religion deserves
\n\tconstitutional protection in the first place.34\n\t<\/p>\n
\n\treligious accommodation to religious individuals may confer secular benefits beyond the protection of their ability to practice their faith.35 The
\n\tsuggested solution is to clearly enunciate what the privilege is that the religious individual will be receiving and also to clearly state what the
\n\tgovernment expects in return for the privilege.36 In other words, while the state may accommodate religious individuals by not forcing them to violate
\n\ttheir religious beliefs, it may take action to mitigate the secular benefit that may accrue to individuals.37\n\t<\/p>\n
\n\tcounterintuitive, it is a rational solution. The mitigation of the privilege allows religious individuals who have received the accommodation to share in
\n\tthe social cost of the accommodation.38 Being allowed to avoid an obligation because of one\u2019s religious faith has real value.39 Mitigating the privilege
\n\tlessens the surplus value of the benefit to religious individuals.40\n\t<\/p>\n
\n\texample, Sabbatarians wish to not work a particular day of the week because of their religious faith, other persons will have to work that day for the
\n\tSabbatarians. That may be a disadvantage to nonreligious employees who would prefer a weekend day off for nonreligious reasons.41\n\t<\/p>\n\n\tC. Accommodation Furthers Religious Freedom
\n\t<\/h2>\n
\n\treligions to practice their faith freely.42 This is especially important for members of minority religions, who face challenges of acceptance and
\n\tskepticism from society at large.\n\t<\/p>\n
\n\trole that religion should play in public life.44 Concurrent with the rise of religious practice has been the diversification of religions.45 While the
\n\tUnited States at one time might have been exclusively a Judeo-Christian nation, that now is not the case.46\n\t<\/p>\n
\n\toff because of a day of worship, that can usually be accommodated without too much disruption to the workplace. The harder accommodation might be for a
\n\tMuslim who does not necessarily need an accommodation for a day of worship, but might need an accommodation for daily prayers at numerous times throughout
\n\tthe workday. Indeed, religious discrimination claims by Muslims have doubled since the September 11, 2001, terrorist attacks.47\n\t<\/p>\n
\n\tpractice and workplace rules is a necessity. If religious minorities are marginalized in the workplace, they will be marginalized in the rest of society.
\n\tThe marginalization of religious minorities will make it easier to deny accommodations to those who practice more mainstream religions.\n\t<\/p>\n
\n\treligion and prohibits the government from establishing a religion.48 But of course it is not that simple. The Supreme Court has rendered the free exercise
\n\tclause no help to many individuals.49\n\t<\/p>\n
\n\twith a neutral law of general applicability that conflicts with his religion.50 The individual may, however, have hybrid rights when the free exercise
\n\tclaim is combined with another constitutional right, such as freedom of speech or freedom of the press.51 As a result, an individual\u2019s free exercise claim
\n\tmay be trumped by laws that ostensibly have no relation to religion as long as the law is one of general applicability.\n\t<\/p>\n
\n\tlaws did not conflict with their religious beliefs.52 Second, the Court did not want judges weighing the \u201csocial importance of all laws against the
\n\tcentrality of all religious beliefs.\u201d53 The Court clearly was uncomfortable with evaluating the religious practices of individuals.54 However, the result
\n\thas left the free exercise clause virtually meaningless.\n\t<\/p>\n\n\tVI. Conclusion
\n\t<\/h2>\n
\n\tbetween practicing their faith and workplace rules. While at least some in society claim to value religion and what religion adds to the public square,
\n\tothers say that accommodating the needs of religious employees need be accomplished only if it does not cost employers anything.55 The federal court system
\n\thas embraced the notion that an accommodation that poses more than a minimal burden on an employer demands too much, notwithstanding the benefits that a
\n\tpluralistic society and workforce may bring.56\n\t<\/p>\n
\n\twhat accommodations are reasonable and how much of a burden is required of employees. While the cost to employers would necessarily increase under the ADA
\n\tmodel, that cost is outweighed by the benefits of employees being able to practice their faith without the threat of losing their jobs because of a
\n\tconflict with employment requirements.\n\t<\/p>\n
\n\tThose differences require that the analysis of religious-discrimination claims be different from the analysis of claims brought because of discrimination
\n\tbased on race, sex, or national origin discrimination.\n\t<\/p>\n
\n\tjobs does not offer these employees the respect or the protection that was envisioned when the First Amendment was ratified or when Title VII was enacted.
\n\tCreating a more equal balance when evaluating whether an accommodation is reasonable will help provide the respect and protection that employees deserve.\n\t<\/p>\n","protected":false},"excerpt":{"rendered":"