We have written many times here about an employer’s obligation to reasonably accommodate an employee’s sincerely held religious beliefs, so as not to unlawfully discriminate on the basis of their religion. Indeed, according to EEOC statistics, claims of religious discrimination by employees are increasing at a higher rate than most other forms of discrimination.

Much less discussed, however, is an employer’s right to the free exercise of religion in the face of employment laws that conflict with religious tenets.    There are countless institutions in the U.S., including hospitals, schools, charities, fraternal organizations, and colleges and universities, that are affiliated with a religious organization.   Collectively, these institutions employ hundreds of thousands (if not more) people.  Not all of these employees practice the religion with which their employer is affiliated, and many of them serve people of all backgrounds and faiths.   Thus, there can be tension when the law grants rights to employees that conflict with the rights of their religiously affiliated employers to adhere to religious teachings.   Jesus famously declared that we should “render unto Ceasar what belongs to Caesar, and to God what belongs to God."   But how are these conflicts worked out in light of modern day employment laws?

Just this month, a pair of significant government decisions spotlight the potential conflicts between religious employers and secular laws.    On January 12, the Supreme Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, that a Lutheran School’s decision to terminate a teacher cannot be challenged under the Americans with Disabilities Act (ADA). The Court unanimously ruled the Lutheran School was exempt from the ADA under what is known as the “ministerial exception”.   In essence, a religious institution has a First Amendment right to decide who is or is not suitable to serve its ministerial functions without court interference. 

Just as the Supreme Court’s decision was sinking in, on January 20, the U.S. Department of Health and Human Services issued a final rule mandating that employer provided health insurance cover abortion, sterilization, and contraception, all with no co-pay or other out-of-pocket cost to the employee. The HHS rule contains an exception for religious institutions, but defines that term very narrowly.   The only religiously affiliated employers who can opt out of the mandatory coverage are those primarily employ and serve people of the same faith. As a practical matter, this rule does not accommodate religiously affiliated hospitals, charities, and educational institutions.   Indeed, one commentator complained the exception is so narrow that Jesus himself would not qualify for it.

In a thoughtful piece, law professor David Skeel writes that while the HHS rule flouts the spirit of Hosanna-Tabor, it may very well comply with its letter, if narrowly construed.  In other words, while the Court’s ruling was on the side of greater religious accommodation, it is possible to interpret the opinion as applying only to those religious organizations whose purpose is the “inculcation of religious values”.   Such a construction would apply to churches and some Catholic schools, but would leave out hospitals and other institutions that serve the general public.  Unfortunately, the administration’s decision to draw the religious exemption in the HHS rule as narrowly as possible only invites litigation, and ensures these issues will be battled in the courts for years to come.  Professor Skeel believe the courts are the worst place to resolve these difficult accommodation issues.   He proposes that the better approach is to hash them out legislatively, or even better, allow the affected groups to work out in good faith practical accommodations. Amen.