As a reminder, in the case involving the Hobby Lobby retail chain, the U.S. Supreme Court upheld the right of a private, closely held corporation to exclude certain birth control methods from its list of wellness benefits under the Affordable Care Act. Specifically, the birth control methods at issue are those that the Hobby Lobby owners believe to induce abortions by preventing a fertilized egg from being implanted in a woman’s uterus.
The basis of the ruling was that certain forms of birth control violate the owners’ “sincerely held” religious convictions. Associate Justice Samuel Anthony Alito Jr., who wrote the 5-4 majority opinion, noted the ruling only applies to birth control and not to other health procedures, such as vaccinations, which might violate another business owner’s religious convictions.
Justice Alito also noted that Hobby Lobby employees who wanted those types of birth control could still gain access to them without charge through a federal subsidy program.
Despite Justice Alito’s effort in his written opinion to narrow the scope of the ruling, dissenters on the Court and other critics believe the ruling establishes a precedent for judicial micromanagement of healthcare policy. For example, they state it allows judges to determine whether someone’s religious convictions are “sincerely held” or not. They further argue the decision could open the floodgates to having taxpayers pay for specified benefits that are excluded from a private health plan.
The crux of the Court’s ruling was the view expressed in earlier rulings: that corporations have some of the same attributes as “persons,” and therefore are entitled to the protections of the 1993 Religious Freedom Restoration Act (RFRA).
According to the Court’s summary of the RFRA, this law forbids the government from: “substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is:
1) In furtherance of a compelling government interest, and
2) The least restrictive means of furthering that compelling governmental interest.”
The Court pointed out that the Obama Administration had already worked out arrangements for religious institutions to side-step the birth control issue. This was done by separating birth control coverage from the overall health plan and allowing employees to deal directly with health plans to obtain it affordably. That, according to the majority opinion, means the government, in fighting Hobby Lobby, had failed to prove that it has exhausted efforts to come up with the “least intrusive” way of addressing the problem. (Burwell, HHS v Hobby Lobby Stores, Inc., No. 13-354)
Workplace Religious Discrimination Defined
Whether the Hobby Lobby ruling ultimately will allow employers to reject other aspects of the Affordable Care Act on religious grounds, as critics claim, is not known today. Meanwhile, keep the following considerations in mind as you establish workplace policies that might be construed as a violation of employees’ freedom of religious expression.
Under the Civil Rights Act of 1964, discrimination is forbidden not only against people who subscribe to traditional, organized religions, but also “others who have sincerely held religious, ethical or moral beliefs,” according to the Equal Opportunity Employment Commission (EEOC).
The law bans discrimination based on religion “when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff(s), training, fringe benefits, and any other term or condition of employment,” states the EEOC.
As with employees having disabilities, employers are required to “reasonably accommodate” an employee’s religious beliefs or practices, unless doing so would cause more than a “minimal burden” on the operations of the business.
Accommodations include work schedule flexibility to allow employees to attend religious observances, and religion-based dress or grooming practices (for example, yarmulkes, headscarves and beards). The accommodation must also take into consideration when an employee’s religion bans the wearing “certain garments, such as pants or miniskirts.”
However, employees who desire accommodations for religious practices need to ask for it. If you have a reasonable need for more information than initially offered by an employee, “the employer and employee should engage in an interactive process to discuss the request,” according to the EEOC. “If it would not pose an undue hardship, the employer must grant the accommodation.”
An “undue hardship” may be in the eye of the beholder — or judge, if a dispute winds up in court. However, the EEOC states an accommodation might create an undue hardship if it:
- Is “costly,”
- Compromises workplace safety,
- Decreases workplace efficiency,
- Infringes on the rights of other employees, or
- Requires other employees to do more than their share of potentially hazardous or burdensome work.