Saturday, September 21, 2019
My colleague Dallan Flake (ONU) has just posted on SSRN his article Religious Accommodation in the Age of Whole-Self Employment. Here's the abstract:
For decades, litigants and legislators alike have attempted unsuccessfully to overturn Trans World Airlines v. Hardison, the 1977 Supreme Court decision holding an employer does not have to provide a religious accommodation to an employee if the accommodation would impose more than de minimis cost on the employer. This effectively gutted Title VII’s religious accommodation requirement by enabling employers to avoid accommodating employees for almost any reason at all. This Article does not advocate for a change in the law, as others have, but instead proposes a new way forward. It makes the case that employers should voluntarily provide religious accommodations beyond what the law requires. This is because we now live in the age of whole-self employment, wherein emp
rbloyees are no longer content to check their personal lives at the workplace door, but instead expect to be able to bring their entire selves—including their religious beliefs and practices—with them to work. Accommodation facilitates whole-self employment by allowing religious employees to express a fundamental dimension of themselves in the workplace. Empirical research overwhelmingly confirms employees who are allowed to express their authentic selves at work are happier, harder working, and more loyal to their employers. Research also shows that a content workforce is a productive workforce. Thus, employers should approach religious accommodations not as a burden but as an investment—an opportunity to allow employees to display a part of themselves that will make them better workers. While employers would incur upfront costs in voluntarily accommodating employees, the potential return on this investment justifies its expense.