Watch Out for Religious Accommodation Claims

First published in Law360 on June 4, 2015 – The Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores this week is a reminder that litigation of religious accommodation claims is increasing rapidly. In the employment law context, two federal laws now form the basis for religious accommodation claims: Title VII and the Religious Freedom Restoration Act (RFRA). This article examines the dramatic differences between the two claims, and explores how the doctrine of preemption is putting a check on the expansion of RFRA in the employment law arena.

Title VII Religious Accommodation Claims

Prima Facie Case

Following Abercrombie, under Title VII, to establish a prima facie case of religious discrimination, the employee must show that: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) the employer takes an adverse employment action against the employee; and (3) the employer’s desire to avoid the prospective religious accommodation was a motivating factor in its decision.

Affirmative Defense

Unlike claims based on gender, race, and national origin, Title VII contains an affirmative defense to religious accommodation claims: once the prima facie case has been established, the employer can prevail it if demonstrates it is “unable to reasonably accommodate” the employee’s or prospective employee’s religious observance or practice “without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).

Religious Accommodations

There are generally two ways of providing a religious accommodation in the workplace: (1) an employee can be accommodated in his or her current position by changing the working conditions, or (2) the employer can offer to permit the employee to transfer to another reasonably comparable position where conflicts between work rules and religious practices are less likely to arise.1

Undue Hardship

Under TWA v. Hardison, 432 U.S. 63 (1997), an undue hardship exists as a matter of law when an employer incurs anything more than a “de minimis cost” to accommodate an employee’s religious beliefs. In TWA, the Supreme Court affirmed the airline’s rejection of the employee’s request for Saturdays off on religious grounds, finding that the costs of paying overtime to other employees, or hiring a replacement worker, would have been more than de minimis. 432 U.S. at 84. The Court noted it “would be anomalous to conclude that by ‘reasonable accommodation’ Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others . . .” Id. at 81.

Employers also meet the undue hardship test when an accommodation causes more than a de minimis impact on co-workers.2 In Harrell, the court rejected the proposed use of annual leave and leave without pay because it forced others to work extra Saturdays – an undue hardship.3

Interestingly, well prior to the establishment of marriage equality in the United States, there were religious accommodation claims arising out of objections to same-sex relationships.4 In Bruff, an Employee Assistance Program (EAP) therapist refused on religious grounds to provide relationship counseling to individuals in same-sex or extra-marital relationships. She was one of only three EAP counselors who covered a large geographic area, often requiring them to travel long distances alone to provide services. This meant as a practical matter that Bruff wouldn’t know ahead of time about a religious objection to providing therapy.

As an accommodation, Bruff sought to require one or both of the other counselors to assume a disproportionate workload or to travel involuntarily with her to sessions to be available in the event a problematic subject area arose during therapy. 244 F.3d at 501. The parties were unable to reach agreement.

The jury returned a verdict for Bruff on her Title VII religious accommodation claim and awarded her $32,738.44 in back pay, $326,000.00 in compensatory damages, and $1,700,000.00 in punitive damages. The Fifth Circuit reversed, finding the accommodations sought by her to be an undue hardship as a matter of law under Hardison. Id. Accord, Walden v. Centers for Disease Control and Prevention,5 a recent case with similar facts resulting in a loss for the plaintiff.

Federal RFRA Religious Accommodation Claims

Strict Scrutiny

RFRA prohibits the federal government from substantially burdening the practice of religion without a compelling interest and requires that it advance that interest by the “least restrictive” means possible. The law thus codified strict scrutiny review of religious accommodation claims challenging government action.6


Congress passed RFRA in 1993 in response to Employment Division v. Smith.7 In Smith, the U.S. Supreme Court rejected a free exercise challenge to an Oregon statute that denied unemployment benefits to drug users, including Native Americans engaged in sacramental peyote use. Smith held that the Free Exercise Clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws.

RFRA originally applied to both state and federal government action. When the U.S. Supreme Court subsequently ruled that it could apply only to federal action in 1997, many states passed their own RFRA laws, of which there are currently twenty (discussed below).8

Recent Expansion of RFRA by U.S. Supreme Court

The U.S. Supreme Court has expanded the scope of RFRA significantly in recent years. In Burwell v. Hobby Lobby,9 it held that privately held corporations can sue the government under the law as “persons,” and it eased the burden of demonstrating a “substantial burden on the practice of religion.” In Gonzales v. O Centro Espirita Beneficente Unaiao do Vegetal,10 the Court rejected the government’s “categorical approach” to asserting a compelling interest in protecting public health and safety; instead, it required the government to explain how applying the statutory burden “to the person” whose sincere exercise of religion is being seriously impaired furthers the compelling government interest. Gonzales has already been applied in employment cases.

RFRA in the Employment Context

Application of strict scrutiny to religious accommodation claims under RFRA contrasts dramatically with the comparatively deferential approach taken in Title VII cases. For example, Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) involved a Sikh revenue agent for the Internal Revenue Service who sought to bring a ceremonial sword (a kirpan) to work. After intense negotiations regarding the length and sheathing of Tagore’s kirpan, the parties were unable to agree on a way for her to comply with building security rules. Tagore gave up her job rather than wear a shorter-bladed kirpan, and filed suit under Title VII and RFRA.

The Fifth Circuit first confirmed that Tagore had a sincere religious belief in wearing a kirpan with a blade exceeding 2.5 inches. Then, it determined that under Gonzales, the government could not meet its burden under RFRA of demonstrating a compelling interest in protecting federal buildings by taking a “categorical approach.” Instead, the government had to demonstrate how enforcement of its building security rule in that particular instance furthered the government’s compelling interest. 735 F.3d at 331. The court also found that the government had failed to demonstrate how its rule was the least restrictive means of assuring protection of federal buildings; for example, why alternative policies would be unfeasible, or why they would be less effective in maintaining institutional security. Id. It reversed and remanded for re-application of strict scrutiny under RFRA.

By contrast, the Court’s analysis of the plaintiff’s Title VII religious accommodation claim was a relative cake walk. Applying the de minimis test under Hardison, the court found that it would impose an undue hardship on security personnel at entrances to public offices to engage in a “time-consuming, impractical” inquiry as to whether Tagore’s kirpan was a dangerous weapon. Id. at 330.

Title VII Preemption of RFRA Religious Accommodation Claims

Two circuits have held that employment-based religious accommodation claims against the federal government brought under RFRA are preempted by Title VII under Brown v. General Services Administration.11 In Francis, the Third Circuit noted that Congress extended Title VII to protect federal employees in 1972, and that in 1976 the Supreme Court in Brown held Title VII to be the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” 425 U.S. at 829. Building on Brown, the circuits have since held that Title VII also “precludes actions against federal officials for alleged constitutional violations as well as actions under other federal legislation.”12

Both Circuits also cited the legislative history of RFRA as evidence of Congressional intent to make Title VII the exclusive remedy in religious accommodation employment cases. Both the House Report and the Senate Report on RFRA state, “Nothing in this act shall be construed as affecting religious accommodation under Title VII of the Civil Rights Act of 1964.” 638 F.3d at 983.

RFRA has been held to apply to government contractors as “instrumentalities” of the federal government under the definitions section of RFRA.13 It will be interesting to see how the preemption doctrine is applied to those private employers.

State RFRAs

As noted above, in 1997 the federal RFRA was held not to apply to the states. Twenty states have responded by passing their own RFRAs that in large part mirror the federal act, in that they apply only to state action. In August of 2013, the New Mexico Supreme Court held that its RFRA did not provide a right of action to a professional photography studio that refused to photograph a same-sex couple’s wedding, “because the government is not a party.” The studio lost on other claims as well, due in part to the state’s inclusion of sexual orientation in its antidiscrimination statute.

It has been suggested that Indiana and Arkansas’s RFRA legislation passed earlier this year may have been a response to the New Mexico case. Indiana’s statute included language stating that it applied to cases, “regardless of whether the state or any other governmental entity is a party to the proceeding.”14 Because of the national political firestorm that ensued, both states backed down and ended up with laws that provided additional protection for same-sex couples.

The Takeaway

Religious accommodation law is shifting rapidly. When evaluating religious accommodation claims, employment law practitioners will need to assess the case under both Title VII and RFRA, determine whether preemption may apply, and closely examine state RFRAs and antidiscrimination statutes, prior to proceeding with litigation strategy.

  1. Bruff v. North Mississippi Health Services, 244 F.3d 495, 500 (5th Cir. 2001).
  2. Harrell v. Donahue, 638 F.3d 975, 979-980 (8th Cir. 2011).
  3. Thus, Title VII’s religious accommodation undue hardship defense bears little resemblance to that under the Americans with Disabilities Act: 42 U.S.C. § 12112(a); 29 CFR 1630(p)(1)(“In general, undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity.”)
  4. See United States v. Windsor 133 S.Ct. 2675 (2013)(striking the Defense of Marriage Act as unconstitutional under the Fifth Amendment Equal Protection and Due Process clauses).
  5. 669 F.3d 1277 (11th Cir. 2012)
  6. 42 U.S.C. § 2000bb-1(a)-(c):
    (a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
    (b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –
    (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling governmental interest.
    (c) Judicial relief A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.
  7. 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)
  8. City of Boerne v. Flores, 521 U.S. 507 (1997)(RFRA’s application to the states and their subdivisions under Section 5 of the Fourteenth Amendment exceeded Congress’ powers.)
  9. 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014).
  10. 546 U.S. 418, 424, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006).
  11. 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Harrell v. Donahue, 638 F.3d 975 (8th Cir. 2011)(Title VII exclusive remedy, no RFRA claim lies); Francis v. Mineta, 505 F.3d 266 (3rd Cir. 2007)(same).
  12. Owens v. United States, 822 F.3d 408, 410 (3d Cir. 1987).
  13. Walden v. CDC, 669 F.3d 1277 (11th Cir. 2012)
  14. Elane Photography, LLC v. Willock, 309 P.3d 53 (2013)