Religion and Employment Antidiscrimination Law: Past, Present, and Post Hosanna-Tabor

Abstract

This Article summarizes the history of and recent trends for two aspects of the law regarding the intersection of religion and U.S. employment. Part I surveys laws and case precedent that protect working religious adherents who claim discrimination, harassment, or a failure to accommodate. Adherents now bring most of their claims under Title VII of the Civil Rights Act of 1964 or equivalent state fair employment practice statutes. However, isolated legislation, some arguably politically as well as religiously motivated, offers additional protections. Recently passed “refusal clauses,” also known as “conscience clauses,” relate to the sale of contraceptives or the provision of pregnancy termination services. They highlight the importance of targeted and specific statutes. Burwell v. Hobby Lobby Stores, Inc. addresses whether for-profit, private corporations enjoy the same protections afforded by the Religious Freedom Restoration Act of 1993 (RFRA) that religious persons may claim against governmental interference. Part II covers the protections for religious institutions that also operate as employers. The Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC indicates that the legal debate concerning the separation of church and state remains lively — at least where religious employers operate. The future direction of court interpretation of that precedent remains obscure. Some analysts suggest that the Court limited Hosanna-Tabor’s reach, while others contend that its influence may be quite extensive. Finally, this Article concludes by making several observations about the evolution of religion and employment law.