This modification of the Civil Rights Act failed to define what was meant by "financially detrimental." This issue was left for the courts to decide and there was wide variability in case law.
In 1977, Title VII was modified to include widespread employer exemption, even in cases where the cost was minimal or caused little difficult to the employer (Ontario Consultants on Religious Tolerance, n.d.). This modification shifted the balance of power, almost entirely to the employer. They could allow or disallow as they wished, and an employee could be terminated for failing to follow the rules governing the company. Religion was essentially wiped out of the workplace by this act. In July of 1997, congress failed to pass a bill that would change the wording of Title VII back to something similar to the original 1972 wording (Ontario Consultants on Religious Tolerance, n.d.).
In August of 1997, the Clinton administration issued guidelines that would cover civilian-branch employee of the federal government (CITE). (Ontario Consultants on Religious Tolerance, n.d.). These guidelines were under the suggestion of a number of religious institutions. These guidelines mandates that Federal employees could engage in personal religious expression "to the greatest extent possible" if it were consistent with workplace efficiency and the requirements of the law (Ontario Consultants on Religious Tolerance, n.d.). As one can see, various factions of the government were split as to what was fair to both the employee and the employer. The employer now had grounds to file against an employer who did not follow these federal guidelines. However, it only extended to a select group of employees, those working for a civilian branch of the federal government.
At the current time, the weight of cases are decided in favor of the employer. The Workplace Religious Freedom Act of 2000 ("WRFA" or "the Act") is the latest assault on the ability of employers to protect themselves from undue financial harm from the necessity to accommodate the religious needs of the employees (Baxter, 2006). The purpose of the act is to overturn two Supreme Court cases, Trans World Airlines v.Hardison, and Ansonia Board of Education v. Philbrook (Baxter, 2006).
These cases attempted to define what was meant by undue hardship. The first case argued that it would be difficult to enforce the religious freedom of employees due to the ability of the employer to use the "reasonable accommodation" clause to their advantage. The second case argued that any attempt at accommodation is sufficient to be deemed reasonable accommodation. The employee could refuse to consider alternatives. This attempt at clarification further confused the issue. Employers could resort to insubordination to justify firing when an employee refused to comply with orders regarding their work
Court decisions regarding reasonable accommodation are not consistent, ruling in some cases for the employee and in other similar cases for the employer. One cannot turn to case law for the ultimate resolution of the problem regarding what constitutes reasonable accommodation. It would be possible to support a case for either perspective using the existing body of case law regarding employer and employee rights.
Similarities to the ADA
The issue of what constitutes reasonable accommodation is at the heart of the question regarding what is considered to be a reasonable accommodation of the employer. There is another branch of the law that has a similar issue at its heart. The Americans with Disabilities Act (ADA), also had to resolve a similar question of reasonable accommodation. Under this law, employers are required to make reasonable accommodations to allow those with disabilities a way to perform their job (42 U.S.C. 12111(10)).
The ADA's definition of what constitutes undue burden is found in 42 U.S.C. 12111(10). The WRFA adopted much of the language contained in the ADA as a basis for their own proposed legislation. The purpose of this section was to attempt to provide consistent guidelines for determining if reasonable accommodations had been made. The language defines the undue difficulty when the accommodation would not result in the ability of the employee to perform their job, even with the accommodation (Baxter, 2006). Other factors would be considered including, whether the identifiable costs of accommodation, including loss of productivity or the costs of retraining an employee would pose a threat to the business. These factors would be considered in relation to the size of the employer (Baxter, 2006).
These are the guidelines, as they apply to the ADA. The argument for the necessity to make reasonable accommodations for a disabled person is similar in many ways to that of accommodating religious freedom, at least from an employer's standpoint. The employer must be the one to bend in order to allow the other person the same chance as everyone else.
In the case of a person with a disability, these laws are more equitable, as a person cannot help the fact that they are disabled. This is where the differences between religious freedom in the workplace and the ADA go astray. One can easily see making accommodations to allow a person with disabilities to work. If they do not work, society will still have to pay for their expenses through the social services that they receive. If one takes a macro-perspective, making accommodations in the workplace is a favor to society. The employer is helping to defer the costs of taking care of a person with a disability by allowing them to be a productive member of society.
However, in the case of religious freedom, the employer is not providing a social service to the whole of society that is tangible. When an employer makes an accommodation for religious purposes, they are helping to maintain the diversity of the society and to uphold the principles upon which the country was founded, but they are not defraying any direct costs to society. A person cannot receive social services based on their religious preferences. Religion is a choice, disability is not a choice. This is the key difference between these two concepts.
Those that promote the need to make accommodations in the work place due to religious freedom have adopted the language used by the ADA in order to draw attention to the similarities. However, the only similarities between the ADA and the WRFA are the "accommodations" that must be made by the employer. Outside of this factor, there is little similarity between the two concepts. Employers highlight the fact that religion is a personal choice, whereas disability is not a choice.
It is an easier pill to swallow when they must make accommodations for a disabled person. Making accommodations for someone less fortunate than oneself has many benefits. Society is likely to see the employer in a positive light, as they are allowing a disabled person the ability to take care of themselves. They are taking the burden off of society for their care. Society recognizes their service and will be likely to see them as an asset to the community. They will be seen as a caring company that cares about more than their bottom line. There are many benefits to helping make accommodations for the disabled.
The same cannot be said for religious accommodations. The acceptance of the necessity to make accommodations for religious preferences may be seen as unfair to those of other religions. The employer can end up with a big problem as every religious faction in the workplace begins to demand "equal time" when accommodations are made for one group. Most employers do not have the flexibility to allow their employees to come and go as they please.
When the actions of the employees harm the ability of the employer to make a profit, it harms the employees themselves. They may have to make up the lost differences by means of pay cuts or layoffs. This represents a social burden, as these employees will now collect unemployment. This is quite the opposite of making accommodations under the ADA. Making accommodations under the WRFA can pose a greater burden to society through the loss of taxes, in addition to increased unemployment.
Making accommodations under the ADA is viewed as a "good deed." Few will argue with helping those less fortunate than ourselves. Other workers are more likely to be supportive of the accommodations and of the person. Helping others makes us feel good about ourselves. However, the same cannot be said for making accommodations for religious reasons. This can cause a sense of unfairness. Making accommodations for religious reasons may cause jealousy and resentment, rather than a feeling of cooperation and good will among the employees.
The employer is put on the spot. They must quickly weigh many factors, one of which is the cost of the accommodation. There are tangible and intangible costs to the employer who is asked to make a religious accommodation. There are direct costs associated with lost productivity or the cost of finding a replacement. There are also intangible costs in the emotional fallout…