When French President Jacques Chirac endorsed a recent proposal to prohibit French schoolchildren from wearing religious clothing in public schools, the United States was quick to criticize him. American Ambassador John V. Hanford indignantly claimed that "a fundamental principle of religious freedom … is that all persons should be able to practice their religion and their beliefs peacefully, without government interference." While the ambassador's statement appears unequivocal, it skirts an issue with significant implications for religious Americans: In condemning only "government interference" with religious freedom, Hanford glossed over a simmering domestic debate about employer interference with religious practices and beliefs. This is a critical issue for the many Americans of faith who are victims of employment discrimination due to such practices and beliefs.
If you think the problem doesn't exist here, try wearing your turban to the St. Louis courtroom of federal judge Michael Reagan. Last year, Reagan threatened to evict several fez-wearing spectators who came to observe a trial. When a woman protested that she was wearing a hat to show respect for her lord, the judge told her to "please leave, take it off, and come back in, or do not come back in. The choice is yours." The judge also made it clear that he was an equal-opportunity offender. When asked whether he would have been as dismissive of more traditional religious practices, Judge Reagan replied: "Jews will not wear yarmulkes. I am Catholic, and the pope would not wear a miter."
It is hard to know why Reagan got so worked up by the sight of religious headgear, but he is not alone. Earlier this month, Sikhs gathered at the New Jersey Statehouse in Trenton to demand legislation to protect against the job discrimination they experience because they wear turbans. My boss, New York Attorney General Eliot Spitzer, had to step in a few years back when a well-known chain of hair salons fired a longtime employee after he started wearing his yarmulke on the job. And it's not just religious headgear that seems to tick off employers. Both the Equal Employment Opportunity Commission and the New York Attorney General's office sued Federal Express over its policy prohibiting employees who wear dreadlocks for religious reasons from being promoted to positions that require customer contact.
Workplace discrimination is not confined to blue-collar jobs, either. A few years ago, at a Columbia Law School forum, a partner at one of the country's largest law firms candidly observed that wearing a yarmulke to an interview will diminish one's job prospects. An informal study at Fordham Law School concluded that Jewish students on the Law Review who wore yarmulkes to their job interviews were far less likely than their classmates to be called back for a second interview. And New York law firms are far more progressive—and accommodating—than most.
There ought to be a law. And technically, there is. In 1972, Title VII of the 1964 Civil Rights Act was amended to require employers to "reasonably accommodate" the religious practices of their employees, unless that accommodation would impose an "undue hardship" on the employer. But in 1977 the Supreme Court held, in TWA v. Hardison, that anything more than a very minimal cost is an "undue hardship" that negates the employers' duty to accommodate workers.
Money costs are not the only possible source of undue hardship claims. Courts have found businesses' concerns about workplace morale or even "industrial peace" to be more compelling than a religious accommodation. One federal court even relied upon the claims about the negative impact on a restaurant's public image, in dismissing a claim brought by a Sikh employee who was fired after refusing to shave his beard.
And cases involving clothing or grooming are not the most difficult. Many religious discrimination cases involve the religious employee's need for time off for religious observances. In Hardison, the court held that it would be an "undue hardship" to require TWA to incur a $150 cost to accommodate an employee who refused to work on his Sabbath. While some courts have subsequently rejected claims advanced by large employers that relatively minimal expenses constitute undue hardship, others have upheld them.
To be sure, nobody expects the courts to direct businesses to incur substantial expenses to accommodate a single employee. Courts, and businesses, must draw a line beyond which accommodation is truly burdensome and therefore unnecessary. But the courts have been less than generous to religious employees when deciding where to place that line.
This inflexibility of courts and employers is striking in that it comes just as we have expanded the obligation to assist other members of society traditionally excluded from the workplace.
The most prominent manifestation of this trend is the Americans With Disabilities Act, legislation requiring employers to accommodate individuals with disabilities. Under the ADA, an employer's duty to offer a "reasonable accommodation" to the disabled includes offering "job restructuring … modified work schedules and reassignment to a vacant position." Claims of "undue hardship" are limited to those requiring a "significant difficulty or expense" when considered in light of the resources of the employer. In short, no major airline would be permitted to rely on a $150 cost to avoid its obligations to the handicapped under the ADA.
Why then is religious accommodation accorded second-class status under the law? For one thing, courts may be concerned that a meaningful obligation to accommodate will morph into a preference for religious practice that violates the Establishment Clause. Moreover, employers often value uniformity above all else, seek out "team players," and are therefore suspicious of workers who desire to be "different." Some suspect an element of disrespect to America in the stubborn insistence of those who want to preserve the traditions they have brought from foreign lands. These concerns are misplaced. By focusing on the constitutional concerns, the current law lends objective cover to employers who seek to discriminate. And the stereotyping of religious employees is "religious profiling," which, like its discredited cousin, is a self-fulfilling process that leads to a bigoted result.
For several years, religious groups have been advocating legislation that would incorporate the ADA's broader definition of "reasonable accommodation" and narrower interpretation of "undue hardship" into legislation protecting the rights of religious employees. However, the bill—known as the Workplace Religious Freedom Act—is opposed by business groups and has languished in Congress. In 1997, President Clinton conveyed his dissatisfaction with the current state of the law by issuing "Guidelines on Religious Exercise and Religious Expression in the Federal Workplace."
These guidelines offer more protection to federal workers than Title VII provides to private sector employees. For example, they state that an agency should grant an exemption from work rules that burden an employee's religious practice "unless the agency has a compelling interest in denying the exemption, and there is no less restrictive means of furthering that interest." There is also a presumption in favor of permitting employees to wear religious garb, allowing them to be banned only if they "unduly interfere with the functioning of the workplace." Although these guidelines are binding only on federal agencies, they send a message about the inadequacy of current federal law. The states have begun to pick up on that message by enacting antidiscrimination legislation that is tougher than its federal counterpart. New York, for example, has passed a version of the Workplace Religious Freedom Act requiring employers to grant a requested accommodation unless it imposes a significant difficulty or expense.
Advocates should capitalize on the widespread criticism of the French proposal by educating elected officials and others about the challenges that confront religious Americans on the job. Instead of battling congressional complacency, advocates should focus their attention on the states in a state-by-state effort to enact strict antidiscrimination laws. Until that happens, employees of faith can take some comfort in the eloquent rebuke that 7th Circuit Judge Frank Easterbrook delivered to Judge Reagan:
Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority's. … Obeisance differs from respect; to demand the former in the name of the latter is self-defeating. It is difficult for us to see why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez … [T]hose who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be … threatened with penalties.
Judge Easterbrook's words of tolerance and respect have resonated among those who have often been forced to choose between their religious and financial obligations. What remains to be seen is whether employers, courts, and legislators will get the message.