Dallan Flake (Gonzaga University School of Law) has posted When "Close Enough" is Not Enough: Accommodating the Religiously Devout on SSRN. Here is the 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 Jewish employee requests Sundays off because she believes working on her Sabbath is a sin, and her employer responds by giving her Saturdays mornings off to attend synagogue services but requires her 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. But 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 to be reasonable, an accommodation must fully eliminate the conflict between an employee’s job and religion. Several tools of statutory interpretation, including textualism, legislative history, Supreme Court precedent, and agency guidance, support this position. Additionally, and perhaps even more importantly, a full-accommodation rule reflects the reality of religious devotion for the millions of American workers who believe they must be fully obedient to the tenets of their faiths. For these individuals, religious observance is not something that can or should be done part way. If an employee believes it is sinful to work on Saturdays, the ability to attend synagogue 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.
