Instead, the court will look at whether a bona fide religious practice conflicted with an employment requirement, whether the employee brought the religious practice to the employer's attention, and whether the religious practice was the basis of the adverse employment decision. Once that is established, the burden shifts to the employer to either demonstrate that they made a reasonable accommodation or that to do so would have been unduly burdensome. The problem comes when one realizes that many of these issues are very subjective, which means that the solution in one fact-specific situation would probably differ tremendously from the situation in another fact-specific scenario.
For example, when one examines the scenario with Sandy Koufax, it appears reasonably clear that, had the Dodgers chosen to take adverse employment action against Koufax for his failure to play in the first game of the World Series, that action would have been illegal under current employment laws. First, Koufax was known to be Jewish. While he had previously pitched in games on the Jewish Sabbath, Koufax had refused to pitch in games that fell on Jewish holy days. His employers were aware that he was Jewish and that he intended to observe his religion. Yom Kippur is well-known as one of the holiest of all Jewish holidays. Then the issue that the court would have to look at is whether accommodating Koufax would have been unduly burdensome for the Dodgers. While using one of the Dodgers' other pitchers may have created a burden on the organization, the reality is that the organization had other pitchers available to fill in for Koufax. Though Koufax was generally considered to be their best pitcher, the Dodgers did have people able to fill in for him. Therefore, it would have been difficult for the Dodgers to suggest that it would have been unduly burdensome to accommodate Koufax's desire not to play the game.
The next example from the background is the case of Muhammad Ali. Ali's religious beliefs led him to protest the Vietnam War and not step forward for the draft. Because of those religious beliefs, he lost his boxing license. In Ali's circumstance, proving that his actions were the result of a bona fide religious belief was somewhat more difficult. Islam was even more of a minority religion at the time that this occurred, and what people did know of Islam demonstrated that Islam did not have some type of blanket religious prohibition against engaging in wars. On the contrary, many Muslim nations engaged in wars. However, African-Americans practicing Islam in the United States frequently practice it in a different manner than Middle Eastern Muslims in Muslim-led countries. To suggest that the fact that Muslim countries engaged in war meant that it was not Ali's genuine religious belief that Muslims were anti-war would have been a difficult proposition. This remains the case despite the fact that Ali's refusal was very intertwined with political objectives to the war. In fact, Ali's stance appears to have been that it was against Islam to engage in an unjust war, so that his feelings about the appropriateness or inappropriateness of the war were intertwined with his religious convictions. However, the real issue is whether the boxing commission made a reasonable accommodation for Ali's religious beliefs. The boxing commission was not required to make any accommodations for Ali's religious beliefs. His beliefs did not actually require the boxing commission to do anything differently. Had they permitted him to continue boxing, there would have been no religious discrimination. The scenario may have been different if the boxing commission had required draft participation in its contracts with boxers.
If one simply contrasts how the Dodgers chose to treat Koufax with how the various state boxing commissions chose to treat Ali, it seems clear that members of either majority or commonly accepted religions or ethnic groups, such as Jews and Christians, may be given more leeway when their religious practices appear to conflict with performing their job duties. One interesting example of this, which seems to be a hybrid case of the Ali and Koufax decisions, concerns Mahmoud Abdul-Rauf's claims that it was religious discrimination for the NBA, particularly the Denver Nuggets, to require him to stand for the National Anthem prior to basketball games.
Like Ali, Abdul-Rauf's behavior did not actually inhibit his ability to perform his job, which was to play basketball. Whether or not he stood for the National Anthem, Abdul-Rauf's ability to play basketball would apparently be unimpaired. Abdul-Rauf was a practicing Muslim, and Islam does forbid nationalistic worship, though...
Therefore, the court may be able to question the genuiness of Abdul-Rauf's beliefs, though the argument that they were not genuine would be a difficult one for the Nuggets to maintain. That is because Abdul-Rauf had informed the Nuggets of his religious beliefs and they had quietly accommodated his religious beliefs and permitted him not to participate in the National Anthem until it became a media issue. When it became a public relations problem, the Nuggets discontinued the accommodation and Abdul-Rauf was suspended for failing to observe the National Anthem ceremony.
What is most interesting is that the Nuggets accommodation options were not the same as the average employer. For example, the Nuggets had no need to replace Abdul-Rauf. "Abdul-Rauf's sincerely held religious belief did not preclude him from fulfilling the essence of his employment duties. His primary duty was to play basketball. Once the National Anthem ended, Abdul-Rauf entered the arena and arrived at the Nuggets' bench prepared to play. Thus, the substitute employee factor is not a relevant component of Abdul-Rauf's accommodation analysis."
On the other hand, the Nuggets did not have a substantial number of accommodation options; they could either require Abdul-Rauf to stand for the anthem, or permit him to skip the anthem sequence. It would not have been difficult for the Nuggets to permit Abdul-Rauf to skip participation in the National Anthem ceremony.
However, the burden on an employer is not measured only by the difficulty to the employer in making the accommodation, but also the negative impact that such an accommodation may have on the employer. "Unlike most religious discrimination cases under Title VII, public opinion is a vital factor in Abdul-Rauf's accommodation analysis. In most cases, there are only two or three interested parties involved, including the employee, the employer, and possibly a substitute employee. In the context of professional sports, however, the fans sitting in the area, as well as the fans watching from home, can observe the employee-athlete adhering to his or her religious beliefs."
In other words, fan reaction can create a substantial hardship for both the Nuggets and the NBA. Fans who object to an athlete's religious practices can show their displeasure by not attending sporting events, buying merchandise, or watching games on television, which lowers ticket sales and profits.
In Abdul-Rauf's case, the potential fall-out from fans could have been very damaging to the Nuggets and the NBA. "Once Abdul-Rauf's routine of remaining in the locker room during the National Anthem hit Denver radio shows, numerous callers angrily noted that Abdul-Rauf had been willing to accept American prosperity. Their hostility demonstrated that they expected a quid pro quo from him with regard to respecting the National Anthem."
The Nuggets received over 200 phone calls threatening to boycott games if Abdul-Rauf remained with the team, and some fans threatened to cancel their season tickets.
Based on the extremity of the fan reaction, it seemed likely that, had Abdul-Rauf not agreed to participate in the National Anthem ceremony, both the Nuggets and the NBA may have faced tremendous economic hardship. "The NBA and the Denver Nuggets likely believed that such losses resulting from fan and advertiser reactions would translate into a greater than de minimis cost and an undue hardship. As a result of such retaliation, the NBA and the Denver Nuggets likely found it prohibitively expensive to accommodate Rauf's religious belief."
It is likely that a court would have agreed with their position, had Abdul-Rauf's case come before the court.
What becomes very troubling in this analysis is that the likelihood of economic hardship from a religious accommodation is going to be based on an athlete's choice of religion. For example, Tim Tebow is a well-known football player who is as known for his religious-behavior as he is for his football skills. In fact, Tebow is not among the best quarterbacks in professional football. He was a Heisman Trophy winner while a college athlete, but he is a third-string quarterback. Despite that, Tebow is extremely popular among fans. His jerseys and other memorabilia sell in a way that is comparable to the best players in his field, despite him lacking the skill to compete with them at this time. Tebow's practice while in college was to put Bible verses in the eyeblack under his eyes. That…
