no (treachjuris) wrote in livejrnl_court,
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Religious expression in the workplace...

Good gravy. I'm outta school a mere 3 weeks and so inspired to analyze the practical application of the law *sigh*. Must be an authentic academia geekette - 'scuse the cross post. I was really inspired by a new-found LJ user. :) thanks.

Here's what's messed up about Section 703(a) of Title VII of the 1964 Civil Rights Act, 42 USC 2000e-2(a)(1), as it pertains to religion and the workplace...

I - NO DEFINITION OF 'DISCRIMINATION'
It makes it "unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

YET it has not attempted to outline what 'discriminate' means in respect to religious practices.

On the other hand, the Michigan Civil Rights Commission, established by the Constitution of 1963 and given the task of securing the equal protection of civil rights guaranteed by law, has interpreted the legislative prohibition of religious discrimination as requiring an employer to "reasonably accommodate an employee's religious needs unless an undue hardship would be occasioned thereby."

Such a duty, moreover, does not violate either the Establishment Clause of the First Amendment to the United States Constitution or art 1, 4 of the Michigan Constitution. The proscription against religious discrimination in 3 of the FEPA states simply: "It shall be an unfair employment practice: (a) For any employer, because of the race, color, religion, national origin or ancestry of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment, or any matter, directly or indirectly related to employment, except where based on a bona fide occupational qualification. MCL 423.303; MSA 17.458(3)."

II - I - NO DEFINITION OF 'RELIGION'
The act does not attempt anywhere to define the term 'religion'. Thus, it is unclear at the start from a simple reading of the language of the statute whether the Legislature intended to impose upon an employer an obligation to make reasonable accommodations to the religious needs of employees.

The Equal Employment Opportunity Commission (EEOC), in 1967, issued guidelines interpreting the above provision so as to oblige an employer 'to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business'. See fn 3, supra. The substance of this guideline was later incorporated into a 1972 amendment of Title VII, 1 701(j), 42 USC 2000e(j), in its definition of religion. "(j) The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."

Nowhere in the legislative history of the Act do we find any congressional intent to coerce or compel one person to accede to or accommodate the religious beliefs of another. The requirement of accommodation to religious beliefs is contained only in the EEOC Regulations, which are not consistent with the [Civil Rights] Act.

While courts will view an administrative 'guideline' or interpretation in any number of ways, such as giving it deference, great weight, most respectful consideration, or merely looking to it for guidance, they generally do not consider it controlling.

Most courts have ruled that an employer must suffer some hardship, just not undue, and it's a matter of judicial discretion as to whether any impact on the workplace is considered a hardship, and if so, to what degree, and if so, if the hardship to the employer outweighs potential prejudice to the the religious freedom of the employee.

That said, the interpretation of what a bunch of long dead men may have intended is no easy task - - it's a matter of argument and persuasion alone.
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