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.
See, e.g., Tandon v. Newsom, 593 U.S. 61, 62 (2021) (per curiam) (granting an exemption from a private-gathering restriction during COVID-19); Roman Cath. Diocese v. Cuomo, 592 U.S. 14, 15-16 (2020) (per curiam) (granting an exemption from an occupancy restriction during COVID-19). But see S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (mem.) (denying an exemption from a gathering restriction during COVID-19); Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905) (denying an exemption from a smallpox-vaccination requirement and insisting on deference to state public-health authorities).
See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 467 (2017) (holding that a state must provide funds to a church-owned school to resurface its playground if it would provide the same funds to secular schools); Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 489 (2020) (holding that a state must fund a religious school as part of a statewide tuition-assistance program); Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 66 (2019) (holding that the placement of a forty-foot Latin cross on public land does not violate the Establishment Clause); Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 512-14 (2022) (holding that the Establishment Clause does not justify a high school’s refusal to let a football coach pray with students on the fifty-yard line and rejecting the Establishment Clause test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971)).
See Ira C. Lupu & Robert W. Tuttle, The Remains of the Establishment Clause, 74 Hastings L.J. 1763, 1765 (2023) (describing these doctrinal transformations); Richard Schragger, Micah Schwartzman & Nelson Tebbe, Reestablishing Religion, 92 U. Chi. L. Rev. 199, 201-02 (2025) (explaining how Religion Clause doctrine has developed into a regime of “structural preferentialism”); Elizabeth Sepper & James D. Nelson, Government’s Religious Hospitals, 109 Va. L. Rev. 61, 62-67 (2023) (detailing the merger of state and religion in the healthcare sector).
See, e.g., 2 Kent Greenawalt, Religion and the Constitution 72 (2008); Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 5-6 (2007); Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 3-4 (2014); Michael W. McConnell, Thomas C. Berg & Christopher C. Lund, Religion and the Constitution 1-2 (5th ed. 2022); Americans United for the Separation of Church and State (@americansunited), Instagram (Nov. 21, 2023), https://www.instagram.com/americansunited/p/Cz6ZFyasuMZ [https://perma.cc/W32W-9BCR] (“Separating religion and government allows us all to live freely and equally.”); Gregory A. Smith, In U.S., Far More Support than Oppose Separation of Church and State, Pew Rsch. Ctr. 5-6 (Oct. 28, 2021), https://www.pewresearch.org/wp-content/uploads/sites/20/2021/10/PF_10.21.21_fullreport.pdf [https://perma.cc/GH73-XZTJ].
See Religion in Everyday Life, Pew Rsch. Ctr. 4 (Apr. 12, 2016), https://www.pewresearch.org/wp-content/uploads/sites/20/2016/04/Religion-in-Everyday-Life-FINAL.pdf [https://perma.cc/QC8A-ZVDV] (discussing “the ways religion influences the daily lives of Americans”); Elaine Howard Ecklund, Denise Daniels, Daniel Bolger & Laura Johnson, A Nationally Representative Survey of Faith and Work: Demographic Subgroup Differences Around Calling and Conflict, 11 Religions 287, 297-98 (2020) (discussing the conflicts employees face between “their faith and their work”).
For the recent spike in religion-based charges filed with the Equal Employment Opportunity Commission (EEOC), see Religion-Based Charges (Charges Filed with EEOC) FY 1997-FY 2022, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0 [https://perma.cc/7UBP-LJ4J].
Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 2, 86 Stat. 103, 103 (codified as amended at 42 U.S.C. § 2000e(j)) (“The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”). For further discussion of the circumstances surrounding the amendment, see infra Section I.A.
The controversy over Title VII’s mandate not to discriminate on the basis of religion has revolved around issues like the scope of the ministerial exception, the kinds of discrimination in which religious nonprofits may engage, and the extent to which for-profit companies qualify for Title VII’s religious-organization exemption. For a better sense of these issues, see Nelson Tebbe, Religious Freedom in an Egalitarian Age 142-63 (2017); and Recission of Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption Rule, 88 Fed. Reg. 12842, 12842-44 (Mar. 1, 2023) (to be codified at 41 C.F.R. pt. 60-1).
Id. at 473. In just the first six months after the Court handed down its decision, federal district courts applied Groff in dozens of cases. See, e.g., Gage v. Mayo Clinic, 707 F. Supp. 3d 870, 878 (D. Ariz. 2023); Witham v. Hershey Co., No. 23-cv-1563, 2023 WL 8702627, at *3 (D. Minn. Dec. 15, 2023); O’Hailpin v. Hawaiian Airlines Inc., No. 22-00532, 2023 WL 8600498, at *11 (D. Haw. Dec. 12, 2023); Isaac v. Exec. Off. of Health & Hum. Servs., No. 22-11745, 2023 WL 8544987, at *2 (D. Mass. Dec. 11, 2023); McNeill v. Tyson Fresh Meats, Inc., No. 23-CV-041, 2023 WL 8532408, at *9 (N.D. Tex. Dec. 8, 2023); Bordeaux v. Lions Gate Ent., Inc., 703 F. Supp. 3d 1117, 1122, 1130 (C.D. Cal. 2023); Zimmerman v. PeaceHealth, 701 F. Supp. 3d 1099, 1107, 1110-11 (W.D. Wash. 2023); Shields v. Main Line Hosps., Inc., 700 F. Supp. 3d 265, 274 (E.D. Pa. 2023); Gamon v. Shriners Hosps. for Child., No. 23-cv-00216, 2023 WL 7019980, at *1 n.1 (D. Or. Oct. 25, 2023); Prida v. Option Care Enters., No. 23-cv-00905, 2023 WL 7003402, at *3 (N.D. Ohio Oct. 24, 2023); Stephens v. Legacy-Gohealth Urgent Care, No. 23-cv-00206, 2023 WL 7612395, at *11 n.4 (D. Or. Oct. 23, 2023); Trinh v. Shriners Hosps. for Child., No. 22-cv-01999, 2023 WL 7525228, at *7 n.2 (D. Or. Oct. 23, 2023); Lee v. Seasons Hospice, 696 F. Supp. 3d 572, 579 (D. Minn. 2023); Adams v. Mass Gen. Brigham Inc., No. 21-11686, 2023 WL 6318821, at *5 (D. Mass. Sept. 28, 2023); Stroup v. Coordinating Ctr., No. 23-0094, 2023 WL 6308089, at *5-6, *8-9 (D. Md. Sept. 28, 2023); Beickert v. N.Y.C. Dep’t of Educ., No. 22-CV-5265, 2023 WL 6214236, at *3 (E.D.N.Y. Sept. 25, 2023); Langer v. Hartland Bd. of Educ., No. 22-cv-01459, 2023 WL 6140792, at *5 (D. Conn. Sept. 20, 2023); Brown v. NW Permanente, P.C., No. 22-cv-986, 2023 WL 6147178, at *3-4 (D. Or. Sept. 20, 2023); Trusov v. Or. Health & Sci. Univ., No. 23-cv-77, 2023 WL 6147251, at *3-5 (D. Or. Sept. 20, 2023); Bube v. Aspirus Hosp., Inc., No. 22-cv-745, 2023 WL 6037655, at *3 n.1 (W.D. Wis. Sept. 15, 2023); Ellison v. Inova Health Care Servs., 692 F. Supp. 3d 548, 555-56 (E.D. Va. 2023); Jennings v. St. Luke’s Health Network, Inc., No. 23-cv-1229, 2023 WL 5938755, at *5 n.4 (E.D. Pa. Sept. 12, 2023); MacDonald v. Or. Health & Sci. Univ., 689 F. Supp. 3d 906, 912-13 (D. Or. 2023); Conner v. Raver, No. 22-cv-08867, 2023 WL 5498728, at *5 (N.D. Cal. Aug. 24, 2023); Kiel v. Mayo Clinic Health Sys. Se. Minn., 685 F. Supp. 3d 770, 782-83 (D. Minn. 2023); Johnson v. St. Charles Health Sys., Inc., No. 23-cv-00070, 2023 WL 5155591, at *2-3 (D. Or. July 21, 2023); Baugh v. Austal USA, LLC, No. 22-00329, 2023 WL 5125171, at *7 (S.D. Ala. July 21, 2023); Payne v. St. Charles Health Sys., No. 22-cv-01998, 2023 WL 4711431, at *2-3 (D. Or. July 6, 2023); Demeyer v. St. Charles Health Sys., Inc., No. 23-cv-00069, 2023 WL 5614946, at *2-3 (D. Or. July 3, 2023); Cagle v. Weill Cornell Med., 680 F. Supp. 3d 428, 435 (S.D.N.Y. 2023); Allen v. Benson, 691 F. Supp. 3d 746, 762-63 (E.D. Tex. 2023); Snyder v. Arconic Corp., No. 22-cv-0027, 2023 WL 6370785, at *3 (S.D. Iowa Aug. 31, 2023).
See, e.g., Johnson v. York Acad. Reg’l Charter Sch., No. 23-CV-00017, 2023 WL 6448843, at *1-3 (M.D. Pa. Oct. 3, 2023) (involving a claim for a Sabbath accommodation); Complaint at 3, Hamilton v. Drexel Univ., No. 23-cv-04791 (E.D. Pa. Dec. 5, 2023) (involving a claim for a religious-holiday accommodation).
See infra Part II. This Article employs an interpretive methodology that seeks to put existing legal doctrine in its best light. See Ronald Dworkin, Law’s Empire 225-75 (1986) (describing the role of “fit” and “justification” in legal interpretation); see also Tebbe, supra note 9, at 25-36 (defending a “coherentist” methodology). This approach does not proceed directly from ideal principles of political theory but instead looks to a body of considered legal judgments and seeks to extract coherent and attractive principles. Those principles can then be synthesized, refined through testing for internal consistency and correspondence with strong convictions about particular cases, and then developed through application to novel problems going forward.
This Article is part of ongoing research about the role of disestablishment values in the private workplace. For earlier work, see generally James D. Nelson, Corporate Disestablishment, 105 Va. L. Rev. 595 (2019), which explores limitations on religious imposition by corporations. This Article focuses on the disestablishment value of avoiding impositions on third parties. The leading case discussing that value under the Establishment Clause is Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985). In Caldor, the Supreme Court held that a Connecticut statute violated the Establishment Clause because it “impose[d] on employers and employees an absolute duty to conform their business practices to the particular religious practices of the employee by enforcing observance of the Sabbath the employee unilaterally designates.” Id. at 709. By failing to account for the interests of third parties while giving religious employees’ interests “unyielding weighting,” the Court explained, the statute contravened a foundational First Amendment norm that “no one [has] the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.” Id. at 710 (quoting Otten v. Baltimore & Ohio R.R. Co., 205 F.2d 58, 61 (2d Cir. 1953)). In her concurring opinion, Justice O’Connor distinguished the Connecticut statute from Title VII’s religious-accommodation provision, observing that the latter passes constitutional muster because it “calls for reasonable rather than absolute accommodation.” Id. at 712 (O’Connor, J., concurring). A few years later, the Court struck similar notes in Texas Monthly, Inc. v. Bullock, holding that a tax exemption for religious publications impermissibly burdened nonbeneficiaries and therefore violated the Establishment Clause. 489 U.S. 1, 14-17 (1989). More recently, in Cutter v. Wilkinson, the Court crystalized the disestablishment value of avoiding impositions on third parties. 544 U.S. 709, 720 (2005). Writing for a unanimous Court and citing Caldor, Justice Ginsburg insisted that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Id. (citing Caldor, 472 U.S. 703). Because the religious-accommodation regime at issue—the prisoner provision of the Religious Land Use and Institutionalized Persons Act—was suitably solicitous of third-party interests, it survived a facial Establishment Clause challenge. Nevertheless, the Court left open the possibility of successful as-applied challenges should religious accommodation requests “impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution.” Id. at 726. Leading scholarly treatments of the Establishment Clause’s limitation on third-party impositions include Tebbe, supra note 9, at 49-70; Micah Schwartzman, Nelson Tebbe & Richard Schragger, The Costs of Conscience, 106 Ky. L.J. 781, 782 (2017); and Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343, 356-71 (2014). As explored throughout this Article, a considerable body of Title VII case law reflects this constitutional concern for avoiding religious impositions on third parties.
The principles embedded in workplace religion cases are not hermetically sealed—indeed, in many instances, they will overlap and reinforce each other. Moreover, because of this Article’s interpretive methodology, the principles may not represent all disestablishment values that one may see as normatively attractive. For example, a principle of nonpreferentialism that resists favored treatment for religion has considerable appeal, see Eisgruber & Sager, supra note 4, at 51-77, but it does not adequately “fit” with the body of legal judgments under Title VII. In other words, although there may be cause for regret that Title VII “gives [religious practices] favored treatment,” EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 775 (2015), that legal judgment is too prominent to ignore when interpreting the permissible scope of workplace religious accommodations. And so, the question at the heart of this Article is not whether Title VII allows for religious preference—it does—but instead how far that preference may go when it imposes burdens on third parties.
On the method of reflective equilibrium, see John Rawls, A Theory of Justice 48-51 (1971); and Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics, 76 J. Phil. 256, 257-64 (1979). For a recent discussion of reflective equilibrium in constitutional argumentation, see generally Richard H. Fallon, Jr., Arguing in Good Faith About the Constitution: Ideology, Methodology, and Reflective Equilibrium, 84 U. Chi. L. Rev. 123 (2017).