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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today, we’re going to talk about religious accommodation in the Dobbs era. Our guest is Ann McGinley. She’s a recently retired law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law, where she also served as the co-director of the Workplace Law Program. She sees rising controversy due to growing interest in religious accommodation, particularly as it relates to job duties.
As she wrote in a recent piece and expands on here: “The stakes are high. Employers have no choice but to try to ameliorate the conflicts at work arising from this powder keg, and religious accommodation requests are often central to either creating a conflagration or dousing the fire.”
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Interview References:
Ann McGinley’s UNLV William S. Boyd School of Law profile.
1:30 | McGinley, Ann C. (2024). Religious Accommodations in the Dobbs Era. Employee Rights and Employment Policy Journal: Vol. 27: No. 2, Article 7.
1:06 | Dobbs v. Jackson Women’s Health Organization, No. 19–1392. (2022). Supreme Court of the United States.
4:04 | Groff v. DeJoy, 22-174. (2023). Supreme Court of the United States.
8:17 | Title VII of the Civil Rights Act of 1964, § 7, 42 U.S.C. § 2000e et seq. (1964). US Equal Employment Opportunity Commission.
8:36 | The Americans with Disabilities Act, (1990). U.S. Department of Justice, Civil Rights Division.
12:48 | Kloosterman v. Metropolitan Hospital, 1:22-cv-00944. (2023). United States District Court, Western District of Michigan, Southern Division.
21:40 | Colloquium on Scholarship in Employment and Labor Law (COSELL).
TRANSCRIPT
Matt Crossman, host: We’re going to talk about religious accommodations as they relate to job duties. You have a piece that provides some of the framework for what we’re going to talk about. The title of your piece is Religious Accommodation in the Dobbs Era. My first question is for you to make the connection for our AccelPro Employment Law audience. Dobbs is an abortion case. How do we get from Dobbs to accommodations?
Ann McGinley: Thanks for having me, Matt. I’m really happy to talk to your audience. This article was published in the Employee Rights and Employment Policy Journal, of the Chicago Kent Institute College of Law. And that’s part of the Martin H. Malin Institute for Law in the Workplace.
This is where there are many articles that would be very useful on Dobbs and the workplace. They did a symposium on Dobbs and the workplace. And one of the things I started noticing was there’s a lot of issues going around that surround religious accommodations.
Now I’m not arguing that Dobbs has directly affected all of these accommodations because a lot of the issues with religion go back well before Dobbs was decided, and if Dobbs were overturned tomorrow, these issues would still exist. But what I’m trying to say is that we’re at a particular moment that is stark, where there’s a lot of conflict going on between people who are trying to improve or increase their rights and others who feel like their religious rights are being stomped upon. And that’s where the problem happens in the workplace.
MC: I want to quote from the piece that I mentioned. “The stakes are high. Employers have no choice but to try to ameliorate the conflicts at work arising from this powder keg, and religious accommodation requests are often central to either creating a conflagration or dousing the fire.”
That’s pretty powerful stuff. What trends are you seeing that makes you think the stakes are so high?
AM: We have a Supreme Court that is very interested in protecting religious rights, and actually a number of non-profit organizations that are starting to represent people who want to express their religion in the workplace and protect other religious rights.
These groups are focusing on the religious rights of these individuals. There are a number of things these folks have been asking for. Some are scheduling differences, of course. So that’s been going back for a long time. People who have certain religions can’t work on certain days, and they’re asking for scheduling changes, so that will affect their co-workers. And that can cause some real problems in the workplace..
There’s a Supreme Court case, Groff versus DeJoy, that was just decided last summer on that particular issue but that doesn’t deal with some other issues that have to do with religious accommodations that might be even more of a powder keg because of the way they affect other employees.
One would be, for instance, people want to make comments about people who have had abortions or who don’t believe in abortions. Then on the other side would be things like people refusing to do parts of their job that are required because those parts of their jobs go against their particular religion.
Employee rights are banging against one another at the same time. And the employer is just trying to keep peace and make sure that the work that is supposed to get done actually gets done.
MC: In that piece, you describe four types of religious accommodations that employers are asked to make. They revolve around dress code, scheduling, religious expression and job duties. We’re going to focus on job duties because you’ve seen an uptick in cases in that area. What is happening and why?
AM: These are really interesting cases that are coming up. There are employees who have been previously accommodated by their employers not to do particular parts of their jobs, but now employers are saying, no, we’re going to make a rule. You’re going to have to do that.
The best example is that there are a number of cases against CVS Pharmacy, which has within the last number of years started what they call minute clinics. Basically, someone comes in, there’s a nurse practitioner there, the person asks about contraception, the nurse practitioner gives her advice, prescribes some kind of contraception and the person goes away.
That’s the way it’s supposed to work. But a number of workers, I’ve seen at least two or three of these lawsuits, I think there are going to be more in different states, have sued CVS, saying that they don’t want to have to give advice or counseling on contraceptives, nor do they want to prescribe contraceptives.
Now, it’s not that they’re against contraceptives, but they’re against what they call abortifacients. The problem is they have a different definition of abortifacients, which is a religious definition, as opposed to how the sciences define it. I really think this is the central issue.
The religions say that life exists as soon as there is conception. The scientists say life doesn’t start until implantation in the womb. A number of the contraceptives actually prevent a fertilized egg from implantation.
If you really do believe that it’s a human life and that it’s murder to destroy a fertilized egg, even if it hasn’t been implanted in the womb, that’s an abortifacient, and you can’t get around it. So I don’t really understand how people are going to get around that if that’s really their belief.
It’s really important that the courts can’t be involved in deciding what religion is rational, what religion is not rational, so the courts have to just go by whether you have a sincere belief, whether the scientists would disagree or not.
MC: And part of that case also involves how much of your job is involved in the disputed task, correct?
AM: That’s right. What happened was CVS initially gave these people religious accommodations. And the way they’ve gotten the religious accommodations is they’ve either told the customer to come back on another day, they’ve sent them to another CVS down the street, or they’ve referred the work to somebody else who’s working there at the same time who doesn’t have an objection.
I don’t know what caused CVS to just change that ruling, but CVS came out with a rule saying this is an essential part of your job. You have to do this. You’re not going to get a religious accommodation. If you don’t do this, you can no longer work for us.
MC: This seems like it opens up a conversation about reasonable accommodations, which typically you would see in ADA cases. What can we learn from ADA cases that could apply here?
AM: I want to be really clear that religious accommodations are also required under Title VII of the 1964 Civil Rights Act. It not only prohibits discrimination based on religion, but requires you to accommodate based on someone’s religion, their beliefs and practices, to the extent it does not put an undue hardship on the employer.
We have similar language under the Americans with Disabilities Act that employers must give a reasonable accommodation to employees who have disability if it doesn’t place an undue hardship on the employer.
Those two accommodation references, even though they sound almost exactly the same, they’ve been interpreted in very different ways.
Under the religious accommodation rules, the courts in the past, before Groff, have said, the employer only has to do a minimum. Basically if it’s more than a de minimis burden, you’ve proved your case, employer, you do not have to accommodate anymore.
The court changed that with a ruling in a scheduling case, Groff vs. DeJoy. They’ve changed the standard to say you have to prove that there will be a substantial increase in cost to the business.
That’s different from more than de minimis. A substantial increase is going to be more. The court gave some guidance, but not a whole lot, about what that means. They sent the case back down to the lower courts. It’s going to take a while to figure out what that means, but some of it has to do with the effect on other employees, whether you’re putting a lot of pressure on other employees.
Some of it has to do with extra money that you’re going to be paying someone in a scheduling type of situation. I’m not talking about the individual who’s getting accommodated, but other employees who work overtime.
In reasonable accommodations under the ADA, you have a requirement that even if it costs you more, you have to engage in a reasonable accommodation unless it creates an undue hardship, and then you look at cost and time and the size of the employer and all those kinds of things.
One of the things that comes from the ADA that’s really important that I think could be imported here into the analysis, especially in job task cases, is what we call the interactive dialogue. Under the ADA, the employer is required to sit down and negotiate with the employee and go back and forth about what that employee needs in order to be able to do their job.
The Equal Employment Opportunity Commission has recommended that for religious accommodation, but it’s never been implemented. The Supreme Court didn’t even talk about it, I don’t think, in the Groff case at all.
MC: Let’s talk about the Groff case. That’s an important one. What are the details there?
AM: In that particular case, the employee worked for the U. S. Postal Service. The Sabbath, Sunday, for him was a day of rest, and that meant he could not work at all that day. Now, when he started work, that wasn’t a terrible problem, because the U. S. Postal Service doesn’t deliver mail on Sundays. But very soon thereafter, the Postal Service started engaging in contracts with Amazon.
Ultimately it came down to he was working in a small place. There was the postmaster, one other person, and him. And it was a very busy time of year. They were trying to deliver all these things on Sundays, and he just wasn’t coming in. So they fired him.
And he said that they should have accommodated him. The Court of Appeals held that that the employer didn’t have to go beyond the de minimis—that was the standard.
That went to the Supreme Court. The Supreme Court got rid of the de minimis standard but did not overturn the original case that established that standard because there were other mitigating factors in that case.
There were a lot of similar things going on in the case in Groff. We don’t know what’s going to happen with Groff. It went back down to the lower court. They might end up settling that case. The point is that what the court said is that, yes, it does matter how you affect other employees. If the employees protest only because they’re discriminating against you or they don’t like your religion, then that’s not enough. It has to be how it affects your business and how other employees’ reactions affect your business. So if other employees refuse to take the extra overtime, for example, or if they refuse to take your shift or whatever it is, the chances are good that might affect your business and it might be an undue burden.
MC: There’s one other case that you see as being instructive for this conversation, and that’s the Metropolitan Hospital case. What happened in that one?
AM: This is a situation where a physician assistant worked in the hospital. It appears it was a general practice, but it’s not terribly clear. This is a new case.
She is a religious person. She has a belief that people should not change their genders because that is something holy that God created. She also believes that you should not use preferred pronouns of people who are transgender because that actually might create a bad medical situation because people wouldn’t understand that maybe they should do certain tests on someone because this person was identified as a woman for instance when they were born.
She had been working at this place, I think it was for about 17 years, and evidently had gotten lots of praise for taking care of people really well. She says in her complaint that she had treated something like 17 lesbians throughout the years, a number of transgender individuals, etc., but her treatment of them never had to do with transgender issues. She always treated them with dignity, she says.
But then she was required to do some DEI training and to affirm certain statements that were made about transgender individuals, which she felt went against her religion. She got in touch with the DEI department to ask for religious accommodation.
And then when they called her in, they actually were pretty rough on her. According to her complaint, they called her evil, and she eventually was fired.
She had asked for a religious accommodation. It didn’t seem like there was much of a dialogue about whether she should get one or not. And then, of course, the question is whether that creates a cause of action. The CVS defense is that this counseling on contraceptives is an essential function of your job. And I suspect that’s exactly what the defense is going to be in this Metropolitan Hospital case—referring someone for surgery or some kind of medication for transitioning is an essential function of your job.
That language is not anywhere in Title VII. That comes from the Americans with Disabilities Act, and that’s what the employers are trying to use now. It’s probably not a bad test. The question is whether it’s the right test and whether the courts are going to affirm it or not.
If you can decide that something’s an essential function of your job, then an employer has a right not to accommodate you. But how do you determine that? And then of course, under the ADA, there’s a definition of how large a part of your job something is, how many other people are there who can perform that, what does the job description say?
If you would look at the Metropolitan Hospital case, if she was working in a transgender clinic, it would make no sense for her to be asking for religious accommodation from doing that. But if this is just a general health clinic, it could be that the cases that she can’t handle could be handled by the doctor or by another PA.
So I think that you could make an argument that she actually has a possible accommodation that nobody even engaged in a dialogue about.
MC: It seems to me that we are headed toward some kind of decision on what does essential function mean when it comes to religious accommodation, and parallel to that is what is a reasonable accommodation? But the courts haven’t quite figured that out yet, and that’s why you say the stakes are so high. Am I reading that right?
AM: That is one of the reasons why the stakes are so high. I think the stakes are so high because all of this creates conflict in the workplace. If you look at the Metropolitan Hospital case, she alleges that the DEI folks were calling her evil and making fun of her. This is not what an employer wants happening in their workplace.
They want their employees to be respectful of everybody, and they want everybody to at least get along. So that’s not going to be good for your company. An employer needs to figure out how to respect everybody’s interests. That’s going to be very difficult here.
MC: In the midst of all this, if I’m an employment attorney trying to advise a company on how to craft effective policies, what do I even tell them?
AM: I personally think a lot of this has to do with respect and dignity. You really need to think about trying to accommodate these folks. You need to sit down and engage in that interactive dialogue, whether it’s required or not under the religious accommodation cases, because that is going to be the best way to avoid litigation and to make everybody happy.
You also have to take into account other employees’ views, even though that’s something that the Supreme Court tiptoed around. I think that good HR departments and good general counsel will engage in really good conversations with their employees and ask, OK, so how can we accommodate you?
MC: Now I’m going to pivot and ask you professional development type questions. You taught in Italy and Chile. What did you learn about law there that has helped you here?
AM: The last time I taught in Italy was 2013, and it was for three or four, maybe five summers I was teaching torts, not employment law. Law is an undergraduate department, and I was teaching American torts in English.
The Chilean situation is a little different because I teach graduate students there. They would be equivalent to our law students. They’re getting graduate degrees in law. They’re adults who are actually already practicing law, working in the courts.
I engaged in some research there, and then I went to Spain to do this as well. I speak Spanish, so you can learn a lot more when you’re speaking their language. I interviewed about 130 lawyers, judges, students and professors and ended up writing an article about this. What I was interested in was seeing how gender played out in law firms and all kinds of legal employment situations.
What I found that was most interesting to me is that in all those other countries there’s much more help for mothers who have new babies. They get an amazing amount of time off, much of it paid. This is by the government, not by the employer. If we’re going to do this, that’s where it has to come from.
What was interesting was that even where paid leaves were optional for the fathers, they didn’t take them. What I realized is that then women who had all this leave time would come back to work, and they would have a second-class job.
If you’re going to make things really equal—if women want to continue on their careers—you need both the father and the mother to take leaves. They need to take about the same amount of time and then come back to work.
But that was really interesting for me because we have none of this. And I used to think of them as the ideal. And in many ways they are. They’re ahead of us in many ways, but in other ways, some of their policies actually play into this cultural idea that only women should be the ones who are taking care of the kids.
MC: I was looking at your resume. The sections that cover writing and presenting take up 20 pages. Twenty! For an attorney out there who wants to get into that area, who wants to write, who wants to present more, how did you do it?
AM: So first of all, I’m not a kid. I had a lot of years to do that. Just tell those lawyers out there that no, I didn’t do that in one year or two or five or even 10. I’ve been doing this since 1989. So it’s going to be 35 years.
I started by teaching legal writing at Brooklyn Law School. That is not the best way to start. The reason being is that legal writing has always been something of a second-class citizenship job, and it’s really hard to move into the tenure track positions from there.
I didn’t realize that at the time. If I were someone who’s in practice, I would probably try to teach adjunct. You have a lot to offer as a lawyer who’s out there practicing. You also have a lot of ideas that would turn into really interesting articles. There’s just so much that you know without even realizing that the rest of us might not know that because we’re not out there.
I think that publishing, of course, is key. You have to do it one step at a time. You have to sit down and write that article. The way I started writing an article was I started in the middle. I started writing about what I knew about, and then I just expanded from there. That might not be the best way to write, but it worked for me.
I think one of the keys is getting involved with people who are already in the academy. This is where peers are key.
I would highly recommend the Colloquium on Scholarship in Employment and Labor Law. We call it COSELL, and it’s in its 19th year. They do a symposium every year. I think I’ve been there 17 years. UNLV has actually hosted it twice. It is a fantastic group of people. It’s mostly academics, but there are always two or three or four or five folks who are lawyers who are interested in getting into academics, and they come in and they make these contacts. People will read their work. They can present a paper. They can present an idea. It’s totally informal. It doesn’t cost anything. It’s amazing. It’s so supportive and nonjudgmental. And I have written I don’t know how many recommendations for people to be hired to other law schools from COSELL.
That’s the way it works, especially in the employment and labor law field. People are very connected to one another.
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This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on March 26, 2024.
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