Religiously Motivated Conduct and the Reasonable Accommodations Requirement Under Title VII: A New Framework for Analysis

The passage of the Affordable Care Act, nationwide marriage equality, and calls to expand the Civil Rights Act have thrust religious exemptions and accommodations increasingly to the front of public consciousness and before the courts. Photos of sympathetic plaintiffs and stakeholders on both sides fill news articles and advocacy websites. Their stories are often compelling, and their claims seemingly cannot be reconciled. However, in a pluralistic society guided by fundamental ideals of equality and liberty, they must. This article explores the increasing tension between religious liberty claims and civil rights laws within the context of the religious accommodation requirement under Title VII of the Civil Rights Act of 1964 (Title VII). It proposes a framework for evaluating requests for religious accommodations that asks, as a threshold question, whether the religiously motivated action in question is “inward” or “outward” facing. This proposed framework represents a synthesis of decades of Title VII case law that has consistently held that inward-facing activities, such as those involving religious observance or co-religionists, warrant the greatest protection, whereas outward-facing activities, such as those involving third-parties or non-co-religionists receive the least protection. The Civil Rights Act of 1964 included religion as a protected category, along with race, color, national origin, and, in the case of Title VII, sex. At the time, the adoption of a broad statutory prohibition against discrimination on the basis of religion was non-controversial and received little floor time during debate. It was consistent with the Constitutional free exercise protections under the First Amendment that had begun to take form in the 1930s and 1940s. It also reflected a longstanding tradition of religious liberty and freedom originally embraced by the founders. Shortly after the enactment of the Civil Rights Act of 1964, however, it became apparent that a simple prohibition against discrimination on the basis of religion was not sufficient because religion has an expressive element that sets it apart from the other protected identity categories. Religious identity often includes elements of observance and practice that extend beyond mere belief or status. This expressive element is at the heart of the complex dynamic between religion and the government tasked with protecting and regulating religious belief, observance, and practice. The first section of this article explores the protection and regulation of religiously motivated conduct as seen through the lens of the inward/outward framework. The second section charts the development of the reasonable accommodation requirement under Title VII, including the judicially imposed de minimis standard for undue hardship. The third section discusses the application of the de minimis standard in both case law and agency guidance. The final section illustrates the application of the inward/outward framework in the context of religious accommodations under Title VII through model scenarios and to the recent EEOC v. Kroger case. A brief conclusion notes that this framework not only furthers the purpose of the Civil Rights Act of 1964, but it is faithful to the Constitutional safeguards and limits that were artfully designed to balance rights and promote a just society.