Stephen Gee


Freedom of religion in the workplace has recently become a hot topic with regards to whether U.S. or state laws (mainly contraceptive care and treatment of same-sex, married employees’ spouses) must accommodate certain employer’s religious beliefs or else violate the employer’s constitutional right. However, before this recent employer-centric topic came to light, the main focus was on employees and to what extent employers must accommodate an employee’s religion via Title VII. Most, if not all, academic literature has argued an employer’s duty to accommodate employee’s religion is too weak under Title VII and should thus be increased to the significant employer burden to accommodate an employee’s disability under the ADA. However, courts have consistently held an employer only has a de minimis burden to accommodate its employee’s religion. This article serves as a devil’s advocate argument for why the legal commentators are wrong and why the current Title VII religious accommodation standards are correct. Issues such as “choice,” constitutionality, and judicial efficiency are covered in-depth. Ultimately, the main counterargument this article makes is how raising the Title VII burden on employer’s will create a “moral hazard” for employees to pick and choose a religion to avoid compliance with neutral employer rules.