The Great Awakening in the 21st Century Workplace

CATEGORY: Authored Articles
CLIENT TYPE: Public Employers, Public Safety
PUBLICATION: California Police Chief Magazine
DATE: Dec 07, 2021

The Great Awakening was an 18th Century religious revival in the American colonies in response to secularism that particularly encouraged people to develop a personal relationship with God.  Many historians believe it had a lasting impact on American culture.  Recent workforce developments suggest they are right.

A minority, yet sizable number of employees, including police officers, are resisting workplace health requirements, like masking, testing, and vaccination, claiming that complying with the requirements violates their individual religious beliefs.  This development is unlikely to stop at resistance to pandemic-related requirements and, at least in the short term, may extend to other work requirements, like work schedules, grooming requirements, and whether and how to enforce different laws.  Law enforcement executives should familiarize themselves with the legal requirements that apply at the intersection of individual religious freedom and employer regulations.

California and federal law both require employers to accommodate employees’ sincerely held religious beliefs that conflict with an employment requirement, unless doing so would result in an undue hardship.  The critical difference between state and federal law is how they define “undue hardship.”  Perhaps surprising to some, California’s Fair Employment and Housing Act arguably provides greater protection to individuals seeking religious accommodation.  Under federal law, an employer must only show that accommodating an employee’s religious beliefs by granting an exemption from a workplace requirement would result in a cost that is more than trivial or minor – a standard that is relatively easy to meet.  Under California law, the employer would have to show that an accommodation would result in significant difficulty or expense – a much higher standard.  This discrepancy suggests that employers can expect to see more lawsuits alleging failure to accommodate religion filed in state than federal court.

The question that naturally comes to mind concerns the sincerity of the averred beliefs, especially regarding the vaccine.  After all, Pope Francis has encouraged Catholics to get vaccinated, and the Orthodox Church and most major Protestant denominations have no doctrinal opposition to the vaccine.  Imams and Muslim scholars, as well as rabbis and prominent Jewish organizations – ranging from Reform to Orthodox – have released statements and spoken unequivocally in support of vaccines as consistent with the tenets of their respective faiths.  How then, can so many employees profess that they sincerely believe the vaccine to be against their faith?

The short answer is that courts distinguish between the sincerity of a belief and its doctrinal correctness.  While a belief may contradict the established doctrine or official position of an employee’s religion that does not necessarily render it insincere to the court.  Indeed, the Supreme Court has long held that religious beliefs need not be consistent or even comprehensible in order to be entitled to legal protection.

Yet if not incompatibility with religious orthodoxy, then what renders a religious belief insincere?  This question is difficult to answer definitively.  Indeed, courts typically approach it with a “light touch” or “judicial shyness” as they attempt to walk the very fine line between inquiring into sincerity without stepping into the forbidden realm of religious inquiry.  It is then perhaps better to ask the question in the negative – that is, what does not render a religious belief insincere?  On that point, courts have found that neither nonobservance, nor failure to adhere to a professed faith, nor even previous identification with another religion are, without more, sufficient to establish insincerity.

Employers can also expect that employees will still challenge some workplace mandates by claiming that they violate employees’ rights under the free exercise clauses of the California and federal constitutions.  The first amendment to the United States constitution directs that “Congress shall make no law … prohibiting the free exercise [of religion].”  Article I, section 4 of the California constitution likewise directs that “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.”  These provisions are commonly known as “the free exercise clause.”

A violation of the free exercise clause has occurred where the employee can establish that the employer’s conduct (such as imposing a vaccine or similar mandate) resulted in an impairment of his or her free exercise of genuinely held religious beliefs.  Does this mean then that even a policy that only inadvertently and incidentally burdens religion will be struck down by the courts?  Not necessarily.

Under federal law, policies that are facially neutral (that do not, on their face, target religion) and generally applicable (to all similarly situated employees) are analyzed under a rational basis test.  In practical effect, this means that a facially neutral and generally applicable policy will survive a challenge so long as the employer can show that it is rationally related to a legitimate purpose, such as the prevention of illness and the safety and welfare of its workforce when interacting with each other and with the public.  However, this standard could change soon, as a majority of Supreme Court justices has indicated it is ready to reconsider it.

It is unclear if California courts interpreting the state constitution would require a vaccine mandate to survive rational basis review, a more difficult test like strict scrutiny, or something in between.  Strict scrutiny, the most stringent standard of review, requires that a policy be narrowly tailored to a compelling interest, and the least restrictive means to accomplish that interest.  This standard of review is so difficult to meet that scholars have deemed it “strict in theory, fatal in effect.”  A challenge to vaccine or mask mandates may help clarify this unsettled point of constitutional law.

What is clear is that, moving forward, the number of religious accommodations being sought by employees will increase.  Employers will be challenged to find the right balance between accommodating individual religious beliefs and effective operations, and decision-makers should approach requests with caution.  Challenges to mask and vaccine mandates may be the harbingers of more difficult tests to come.

This article was originally published in the Winter 2021 edition of California Police Chief Magazine.  You can read the article and magazine by visiting: https://www.flipsnack.com/hums85/177929_cpca_2021_wintermagazine_v3.html