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On June 30, 2014, the United States Supreme Court rendered its decision in Sylvia Burwell, Secretary Of Health And Human Services, Et Al., Petitioners V. Hobby Lobby Stores, Inc., Et Al. Nos. 13-354 and 13-356 (Hobby Lobby). Hobby Lobby was decided under the Religious Freedom Restoration Act (RFRA). Hobby Lobby and two other closely held companies had faced massive fines for refusing to cover four contraceptives that they believed would abort or potentially abort a fertilized egg in violation of their sincerely held religious beliefs. The Department of Health and Human Services (HHS) argued that for-profit corporations could not have religious beliefs and should not be considered “persons” under the Act. The Court disagreed with HHS, finding that the term “persons,” as used in the Act, did apply to closely held corporations. It did not rule on whether publicly held corporations were covered by the Act. The Court set out the following standard for applying RFRA:
Hobby Lobby prevailed in the case because the Court found that there were less restrictive means of furthering, what it assumed for the sake of the argument was, the government’s compelling interest.
Hobby Lobby has raised to the forefront the intersection of government mandates and religious freedom. The purpose of this article is to explain the difference between the religious protections at issue in RFRA and those provided to employees of Federal Contractors under Executive Order 11246 and the Title VII standards that inform interpretations of the Executive Order. These issues will become increasingly important as the President moves toward the implementation of an Executive Order prohibiting discrimination on the basis of lesbian, gay, bi-sexual and transgender (LGBT) status since a number of significant religious traditions potentially conflict with activities viewed as endorsing homosexuality.
Executive Order 11246’s Prohibition against Employment Discrimination on the Basis of Religion
There are important distinctions between the standards that apply under Executive Order 11246 and those described by the Court as applying to RFRA. As noted above RFRA requires a compelling governmental interest and no less restrictive alternative for furthering that interest before the Government is allowed to burden a person’s exercise of religion. The Executive Order prohibits discrimination on the basis of religion in employment and requires reasonable accommodation of sincerely held religious beliefs provided that such accommodation does not pose more than a “de minimis” undue hardship. The protections of the Executive Order follow the principles applicable in Title VII religious discrimination cases. Religious belief encompasses not only established religions but sincerely held ethical and moral principles that essentially serve a role equivalent to that served by religion in the life of an individual. The EEOC’s Compliance Manual defines religion as follows:
The Executive Order, like RFRA, passes no judgment on the reasonableness of the content of the “religious belief.” It is only concerned with whether the belief plays a role in the person’s religious life (or its equivalent) and the sincerity with which the belief is held. The Executive Order does not permit an employer to fail or refuse to hire, to terminate, harass, or otherwise adversely affect terms and conditions of employment including pay, promotions, work assignments or facility conditions, among other things, because of a person’s religion.
Where federal contractors find themselves in a position not unlike the Court in Hobby Lobby, is where they have to balance a religious accommodation request against the interests of the company. Hobby Lobby’s request to be exempted from the regulatory requirement to provide four of the 20 forms of FDA approved contraception that it viewed as abortifacients was, in essence, a request for an accommodation for its religious beliefs. An employee can similarly request exemptions from certain work requirements as a religious accommodation. The biggest difference is the standard to be applied to these requests. Under the Executive Order a contractor does not have to provide the requested accommodation if it imposes more than a de minimis burden on the business. This is a significantly lower standard than showing a compelling business interest, and no less restrictive means for furthering that interest (a standard reminiscent of the disparate impact standard of job relatedness and business necessity, and a no less discriminatory alternative that would serve the business interest). EEOC provides the following example of an accommodation request by an employee, who, not unlike Hobby Lobby had a religious objection related to contraception.
Pharmacist Excused from Providing Contraceptives
Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refused on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives. The employer reasonably accommodated Neil by offering to allow Neil to signal to a co-worker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives. (footnote omitted) EEOC Compliance Manual Section 12-1.A.1
The availability of other pharmacists who could handle the contraceptives is critical to the outcome of this hypothetical. If Neil was the only pharmacist and turned away customers based on his objections, the outcome would likely have been different. Similarly, if all of the pharmacists shared the same religious objection the lack of anyone able to service customers seeking contraceptives would likely lead to a different outcome. EEOC provides the following example of a situation in which Neil’s religious beliefs would not have to be accommodated.
Pharmacist Not Permitted to Turn Away Customers
In the above example, assume that instead of facilitating the assistance of such customers by a co-worker, Neil leaves on hold indefinitely those who call on the phone about a contraceptive rather than transferring their calls, and walks away from in-store customers who seek to fill a contraceptive prescription rather than signaling a co-worker. The employer is not required to accommodate Neil’s request to remain in such a position yet avoid all situations where he might even briefly interact with customers who have requested contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate Neil for not meeting legitimate expectations.
Since Neil is costing the employer business and disrupting business operations by leaving customers in limbo, his behavior imposes a more than de minimis hardship on the employer and need not be provided.
In addition to accommodations involving work assignments, common religious accommodations include adjusting work hours to accommodate religious observances, permitting voluntary shift swapping for religious observances, providing use of facilities on an equal basis with other non-religious, non-work related uses by employees, modifying the timing of work breaks for prayers, permitting exceptions to dress codes, and permitting religious expression in the form of religious garb, jewelry or items to the extent they do not disrupt the employer’s business or appear to reflect an endorsement of the religion by the company itself.
LGBT Executive Order and Religious Accommodation
The administration has indicated that it will be developing and implementing an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or sexual identity. Contractors can reasonably anticipate religious accommodation requests related to the implementation of the order. It is important to understand how to balance the obligation to avoid discrimination on the basis of religion including the provision of appropriate accommodations and the anticipated obligation to avoid discrimination on the basis of LGBT status.
EEOC’s compliance manual on Religious Accommodation touches lightly upon this issue. EEOC cites the following in a footnote:
In this case, whether or not the employee should be accommodated turned on how the diversity policy was phrased. The court took issue with asking the employee to adopt a “value” that was inconsistent with the employee’s religious beliefs. EEOC provides a training example raising a similar issue but where accommodation was not required.
In both of these situations, a distinction is being drawn between requiring a personal endorsement of homosexuality and promoting awareness of company non-discrimination policies.
These issues may also come up where, for example, a benefits administrator asks not to be assigned cases involving benefits for employees in same-sex marriages because the administrator has sincerely held beliefs that forbid recognition of such unions. Does the employer have an obligation to reassign those cases to a colleague who does not have these religious objections, similar to the accommodation allowing Neil the pharmacist to pass along contraception customers to colleagues? Or, is this refusal to service same-sex married people in the same league as the Colorado case where a baker with religious objections to making a wedding cake for a same-sex couple was determined to have engaged in discrimination?
A June 20, 2014 article in the National Catholic Reporter demonstrates that these issues are of real concern to certain faiths. The article written by Thomas Reese, discusses the moral dilemma, identified by Catholic Bishops, that would be posed in Catholic institutions that are Federal Contractors if they are required to provide health benefits to same sex married couples. In one case benefits for all married couples were discontinued by a Cardinal in order to avoid providing benefits to same sex married couples when a city required non-discrimination on the basis of LGBT status. If the benefits administrator in my example adhered to these same beliefs, he or she would satisfy the sincerely held belief component that is a pre-requisite for requesting religious accommodations. At that point an employer trying to resolve this case would face a very similar dilemma to the one faced by the Court in Hobby Lobby. When the very core of the sincerely held belief is contrary to the concept of equal treatment which value takes precedence? Hobby Lobby’s religious beliefs would not let it treat abortifacients the same as it treated other contraceptives and many religious traditions forbid treating same-sex marriages the same as heterosexual marriages. Hopefully, when the LGBT Executive Order is promulgated it will provide, or be accompanied by, some guidance on how to deal with this kind of religious accommodation request. Even if it does, it seems inevitable that this question will eventually be decided in the courts.
As clearly demonstrated in Hobby Lobby, striking a balance between protection of religious expression and other governmental interests is not an easy balancing act. Under Executive Order 11246, Federal Contractors have to perform this balancing act whenever religious accommodations are requested. EEOC notes that the volume of religious discrimination claims more than doubled between 1992 and 2007. It is reasonable to expect that given the attention being focused on religious rights and the impending extension of protections to LGBT status, federal contractors will see an increase in religious discrimination claims and/or religious accommodation requests. Religious discrimination has not been a big area of OFCCP enforcement since it usually involves individual claims which would likely be referred to EEOC, but this may change if enforcement of the promised LGBT Executive Order is given to OFCCP. It would be prudent to brush up on your understanding of the impact of religion in the work place in the context of EEO compliance.