Disestablishment at Work
abstract. Across the country, courts are inundated with employee claims for religious accommodation. These claims demand exemptions from vaccine mandates, rules against misgendering, diversity programming, and more. But in the wake of Groff v. DeJoy, which unsettled nearly fifty years of law on religious accommodation at work, judges are in urgent need of guidance on how to handle this new wave of cases.
This Article excavates and defends three principles to guide adjudication: nondisparagement, reciprocity, and proportionality. Striking a balance between worker free exercise and the disestablishment value of avoiding imposition on third parties, these principles can help judges resolve novel religious-accommodation disputes in coherent and attractive ways. Beyond the courts, they might also anchor alternative strategies to protect the basic rights of employees in a diverse modern workplace.
author. Vinson & Elkins Professor, University of Houston Law Center. For helpful comments and discussions, I thank Micah Schwartzman, Liz Sepper, Laura Portuondo, Nelson Tebbe, Elizabeth Pollman, Matt Bodie, Rich Schragger, Jessica Roberts, Dave Fagundes, Doug Moll, Chip Lupu, Kate Redburn, Deborah Widiss, Michael Pollack, Larry Sager, and Jim Oleske. I also thank participants in the Nootbaar Conference at Pepperdine Caruso School of Law; the Religion, Freedom, and Equality Conference at Magdalen College, University of Oxford; and a faculty workshop at the University of Texas School of Law. For excellent research assistance, I thank David Segal and Ben Surrett.
Introduction
In recent years, the Supreme Court has been reworking the role of religion in American life. In a series of cases decided during the COVID-19 pandemic, it stretched the Free Exercise Clause to grant religious exemptions from public-health mandates under previously unimaginable circumstances.1 Around the same time, in cases ranging from state funding for religious schools to state-sponsored display of Christian symbols to prayer in public schools, it eroded the Establishment Clause into a shell of its former self.2 The combination of an outsize Free Exercise Clause and an emaciated Establishment Clause, in turn, has fundamentally altered the contemporary relationship between church and state. Religious citizens now enjoy immunities from law not shared by their nonreligious compatriots, yet they remain virtually unconstrained in their ability to merge religion with political power.3
As dramatic as these changes have been, however, they miss something deeply important about how law shapes the everyday practice of religion. In the legal academy and in popular culture, we tend to think about matters of religious liberty primarily—if not exclusively—in terms of the relationship between the state and its citizens.4 But for millions of Americans, their daily routines—what they wear, when they eat, when they rest, who they talk to—are determined not by the government, but instead by where they work. And because, for the majority of Americans, these daily routines include religious practices, workplace rules and structures are of enormous consequence for the practical enjoyment of religious liberty.5 Instead of resulting from a clash between citizens and their state, the shape of that liberty is often determined through the resolution of conflicts between employers and employees and between employees and their coworkers.6
Federal law structures disputes over religion at work. Title VII of the Civil Rights Act of 1964 lays the ground rules in two provisions. The first prohibits employment practices that discriminate on the basis of religion.7 And the second requires employers to reasonably accommodate employee religious practices unless doing so would be an “undue hardship” on their business.8 With the exception of its application to religious institutions, the first provision has been relatively uncontroversial.9 But since its inception, the reasonable-accommodation provision has provoked serious worries about business disruption and religious favoritism.10
And it’s not hard to see why. While the general thrust of Title VII—and of the Civil Rights Act more broadly—is equal treatment, the religious-accommodation provision has a different character. Instead of targeting invidious discrimination, that provision imposes an affirmative obligation on businesses to rework their operations for the benefit of religious employees. These special benefits, moreover, are not intended to offset any government-imposed burdens on religion. Instead, the federal government is intervening in private firms to give religion favored treatment.11 And the costs of this extraordinary intervention reliably fall on businesses and coworkers.
Although third-party burdens are especially acute in the employment context, the source and shape of any limiting principles have become unclear. Early litigation had indicated that a mandate on employers to accommodate religion violates the First Amendment’s Establishment Clause.12 Title VII’s religious-accommodation provision, however, survived constitutional challenge in Trans World Airlines, Inc. v. Hardison.13 Still, Hardison was highly sensitive to the Establishment Clause’s concern for third parties, stating that employers need not accommodate religion if they would incur anything more than “de minimis” costs.14
For nearly fifty years, Hardison’s constitutionally inflected reading of Title VII limited burdens on employers and coworkers. Courts and regulators forged a working settlement, developing a host of rules that balanced free-exercise interests with the costs imposed on others. Though typically operating offstage, disestablishment values continued to police the boundaries of religious accommodation at work.15
Recently, in Groff v. DeJoy, the Supreme Court repudiated
Hardison’s “de minimis” formulation.16 Under Groff,
employers must now reasonably accommodate religious employees unless doing so
would impose “substantial increased costs” on their
business.17 What counts as substantial
increased costs? The Groff Court refused to say. Instead, it left that
determination to lower courts and instructed them to use their “common[] sense.”18
In the short time since Groff came down, courts have been flooded with cases asking them to adjudicate religious-accommodation claims under its “clarified standard.”19 But there is something new—and striking—about these cases. While a vanishingly small percentage involve long-familiar issues like days off for Sabbath observance or shift changes for religious holidays,20 those cases are vastly outnumbered by accommodation claims that sound in the culture wars. Today, workers are demanding the right to be excused from vaccination requirements.21 They are asserting an entitlement to misgender others.22 And they are claiming that corporate diversity policies and trainings violate their sincerely held religious beliefs.23 In the wake of Groff, courts around the country urgently need guidance on the limits of religious accommodation at work.
This Article articulates and defends a set of deeper principles to guide future adjudication. Through close examination of an existing body of legal judgments, three limiting principles emerge.24 First, the principle of nondisparagement secures respect for a diverse workforce by rejecting religious denigration or subordination.25 Next, the principle of reciprocity resists unilateral impositions on employers and coworkers by asking religious employees to share some of the burdens of accommodating their religious practices.26And finally, the principle of proportionality ensures that the costs of workplace religious accommodation are bounded and equitably distributed.27 These principles transcend particular linguistic formulations of what counts as an “undue hardship,” cutting to the core issue of when the costs of accommodation amount to religious imposition. Recognizing the need to consider the interests of third parties when accommodating religious employees, they might be thought of as principles for “disestablishment at work.”28
Having identified and elaborated workplace disestablishment principles, this Article then illustrates how they can be deployed in some of today’s most culturally contentious disputes.29 When workers demand to be excused from vaccination requirements, courts can rely on principles of reciprocity and proportionality to safeguard coworkers’ health and stave off business disruption. When workers insist on misgendering colleagues, principles of nondisparagement and proportionality can be invoked to ensure workplace dignity and equality. And when workers lodge religious objections to corporate diversity efforts, courts can draw on all three principles to balance workers’ expressive interests with the imperatives of an integrated workplace. Toggling back and forth between these principles and concrete applications, courts can resolve novel religious accommodation cases in coherent and attractive ways.30
Finally, this Article considers how disestablishment principles may fare against emerging judicial skepticism and develops a set of alternative strategies to counter it. It argues that although some courts may resist any limits on religious accommodation, those that look carefully and deeply into the decades of jurisprudence in this area will find support for more balanced judgments. The Article then suggests that proponents of workplace disestablishment might call on various nonjudicial actors—from unions to businesses to legislatures—to build toward a freer and fairer workplace for religious and nonreligious employees alike.
This Article proceeds in three Parts. Part I sets the stage by briefly tracing the profound, yet often overlooked, influence of disestablishment values on the interpretation of Title VII. While Groff threatens to throw this body of law into disarray, Part II excavates and articulates a set of principles to guide future adjudication. Part III puts these principles into action by applying them to some of today’s most polarizing disputes. Having done so, it then explores the prospects of maintaining workplace disestablishment in the courts and beyond.