The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII

Article excerpt

Karen Engle*

I. Introduction 319

II. Judicial Interpretations of Race, National Origin, and Sex . . . 327

A. Integrationism: Reading Race and National Origin . . 327

1. Requiring Immutability 328

a. Immutability and race 329

b. Immutability and national origin 331

2. Defining Plaintiff's Conduct Out of Protected Categories 332

a. Declaring the rules neutral 333

b. Insisting on differences within groups 335

B. Separationism: Reading Sex 340

1. Requiring Immutability 341

2. Defining the Plaintiff's Conduct Out of a Protected Category 344

a. Declaring the rules equally burdensome 344

b. Rejecting "sex-plus" arguments 348

c. Diminishing the importance of grooming and dress standards for the employee 349

C. Neutrality and Choice: Similarities in Judicial Treatment of Race, National Origin, and Sex 353

III. Judicial Interpretations of Religion 357

A. Pre-1972: Distinguishing Belief and Observance 362

1. Declaring the Rules Neutral 364

2. Reinforcing the Belief-Observance Distinction 365

B. 1972 Amendment: Collapsing Status and Conduct . . . . . 369

C. 1972-1980: Defining "Religious" Belief and Observance . . 372

1. Caselaw: To Follow or Not to Follow Yoder 373

a. Questioning the claimed religious observance . . . 374

b. Refusing to question the claimed observance . . . 378

2. EEOC Hearings: Employer Reactions to Accommodating "Religious" Beliefs and Observances . 381

3. The 1980 EEOC Guidelines: Opening the Definition of Religion 385

D. Post-1980: Defining Undue Hardship and Reasonable Accommodation 387

1. Trans World Airlines, Inc. v. Hardison and Ansonia Board of Education v. Philbrook 389

2. Undue Hardship and Reasonable Accommodation after Hardison 392

a. Declaring the rules neutral 392

b. Integrationism: Reading accommodation as discrimination 394

c. Separationism: Undue hardship and the union dues cases 398

IV. Proposals for Legislative and Judicial Reform: Balancing Employer and Employee Interests 406

A. The Accommodation Puzzle Revisited 406

B. The Immutability Requirement in the Race, National Origin, and Sex Cases Revisited 408

C. Religious Accommodation Revisited in Light of Reform Proposals for Race, National Origin, and Sex 415

D. Balancing the Promises and Dangers of Standards 426

V. Conclusion: Reform Proposals and Comparative Methodology . 430


The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.1

On November 5, 1996, Californians voted to amend their state constitution to prohibit affirmative action.2 Above is the first and principal provision of Proposition 209, popularly titled "The California Civil Rights Initiative."3 Somewhat surprisingly, the words "affirmative action" appear nowhere in the initiative.4 Rather, the focus of Proposition 209 is nondiscrimination. The words "or grant preferential treatment to" are between commas, presumably to modify, not add to, the nondiscrimination focus.5 The point is emphasized later in the initiative: "The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin ...."6 .

The wording of Proposition 209 is strikingly similar to language found in Title VII of the 1964 Civil Rights Act.7 And it forces an issue that has plagued antidiscrimination law at least since the passage of that Act: What does it mean to prohibit discrimination? More specifically, can and should the law permit disparate treatment or accommodation for one group or individual if it means that another group or individual will receive less favorable, or even merely different, treatment? …


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