When “Close Enough” is Not Enough: Accommodating the Religiously Devout

Authors

Dallan F. Flake

Abstract

Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” employees’ religious practices that conflict with work requirements unless doing so would cause undue hardship to their business operations. Can an accommodation be reasonable if it only partially removes the conflict between an employee’s job and their religious beliefs? For instance, if a Christian employee requests Sundays off because he believes working on his Sabbath is a sin, and his employer responds by giving him Sunday mornings off to attend church services but requires him to work in the afternoon, has the employer provided a reasonable accommodation? The federal courts of appeals are divided. For some, the answer is no because the proposed accommodation does not eliminate the conflict; the employee still must choose between his job and his religion—the precise dilemma Title VII seeks to avoid. For others, the answer could be yes. These courts take the view that because the statute requires only “reasonable” accommodation, rather than “full,” “total,” or “complete,” an accommodation that lessens, but does not eliminate, the conflict may nonetheless be reasonable depending on the circumstances.

This Article argues that an accommodation is reasonable only if it fully eliminates the conflict between an employee’s job and religion. Several tools of statutory interpretation support this position, including textualism, legislative history, Supreme Court precedent, and agency guidance. Additionally, and perhaps even more importantly, a full-accommodation rule reflects the reality of religious devotion for the millions of American workers who believe in full obedience to the tenets of their faiths. For these individuals, religious observance is not something that can or should be done partway. If an employee believes it is sinful to work on Sundays, the ability to attend church in the morning hardly mitigates the sin of working in the afternoon. Thus, a partial accommodation is not just unreasonable—it is no accommodation at all.

Rights

© 2023 Brigham Young University Law Review

Recommended Citation

Dallan F. Flake, When “Close Enough” is Not Enough: Accommodating the Religiously Devout, 49 BYU L. Rev. 49 (2023).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol49/iss1/7