Resolving Conflict Between Religious Expression and the Civil Rights of Others

In light of a recent U.S. Supreme Court ruling and an announcement by the new Chair of the EEOC, we expect an emphasis in the current administration on enforcing rules against religious discrimination, particularly the right to be accommodated for religious activities that do not cause the employer undue hardship. 

The U.S. Supreme Court has increased the burden on an employer to show “undue hardship” by changing the rule from more than a de minimis cost to a substantial harm to the business as a whole. Increasingly, these issues are arising in common situations where an employee wants time off to attend to religious observances or activities, requiring the employer to bring in others to do the absent worker’s job on overtime. In the past, this type of extra cost for the employer was deemed to constitute an undue hardship, but the result is likely to be different under current law. In addition, there are religious objections made by employees to COVID tests and “pronoun” names for transgender workers. There is also the issue of proselytizing in the workplace that may annoy others.

These are just a sample of the issues raised by recent developments, the subject of this webinar. It was conducted by Elizabeth Dorminey and Jim Hughes.

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Webinar Key Insights

Failure to adapt to the current judicial climate—specifically the Supreme Court's heightened "undue hardship" standard—leaves your project vulnerable to costly litigation, EEOC investigations, and significant workplace disruption. In an era where pronoun mandates are being rescinded at the federal level but potentially upheld at the state or contractual level, a lack of consistent, legally-backed policy is a direct liability to your operational stability.

High-Impact Directives for Your Project

• Apply the "Substantially Increased Costs" Test: You can no longer deny a religious accommodation based on a minimal (de minimis) burden. For any request to be denied as an "undue hardship," you must be prepared to prove that it imposes a "substantially increased cost" on your specific business operations.
• Prioritize Collective Bargaining Agreements: If your project involves a union, remember that the Supreme Court still views the breach of a seniority provision in a collective bargaining agreement as a valid undue hardship. 
• Maintain Absolute Uniformity in Dress Codes: To successfully prohibit religious slogans or attire (like t-shirts), your policy must be content-neutral and consistently enforced across all types of slogans, including secular ones. However, be prepared to make exceptions for headscarves and beards unless they pose a documented, specific safety risk, such as entanglement in machinery. 
• Engage in the "Interactive Exchange": Just as with disability law, you must document a back-and-forth dialogue with employees seeking religious accommodation to try and work things out. Attempting to find a "middle ground"—such as using a student's last name in a classroom setting or providing a single-use restroom—is often viewed by courts as a reasonable resolution.
• Monitor Internal Social Media Platforms: If your project utilizes an intranet or internal social media, you must actively monitor it to prevent the creation of a "hostile work environment." Ensure your handbook clearly states that employees should not post anything they wouldn't want their manager or family to see.
• Verify "Sincerely Held" Beliefs Carefully: While you should respect religious expression, you are entitled to investigate the sincerity of a belief if an employee provides conflicting justifications for their requests. Focus on whether the belief is part of a recognized religious framework rather than a personal whim or a desire for a specific schedule. 

The legal landscape has shifted toward a higher burden of proof for employers, requiring more "discomfort" and cost before a religious accommodation can be lawfully denied. By enforcing consistent, neutral policies and engaging in documented interactive dialogues, you can balance the free exercise of religion with the civil rights of your broader workforce while minimizing your risk of federal or state-level action.

James L. Hughes (00:00):
Well, good afternoon, everyone. My name is Jim Hughes, and joining me today will be Betsy Dormy. We'll be having a discussion about how to resolve conflict involving religious expression and the civil rights of others. Hope you have had a good day so far, and we will begin with Betsy giving us a background of where the law has been and where it is today. And then I will go into some specific cases and examples as time permits. We would certainly like your involvement and your general questions. If you have specific questions about your particular employment situation, either Betsy or I would be happy to take your call after the session today. But again, any sort of general questions we certainly be happy to address during our time together. So Betsy, if you would start off

Elizabeth K. Dorminey (01:01):
Alright. Thank you very much, Jim. It's a pleasure to be here with everybody today and chit chat a little bit about these things. Religious accommodation, of course, is, is part of the Title vii equal Employment Opportunity laws that we've been living with now for, for really, I think it's fair to say, a full generation. So I won't belabor the point about what these things cover, particularly since I'm sure everybody's bumped up against them a time or two already, and they've really are part of the landscape now. But just because it's part of the background doesn't mean that there aren't a few changes here and there. So what I wanted to start off with really was a, a shift in the rule of what's required on the part of the employer to accommodate an employee's religious beliefs or convictions.

Elizabeth K. Dorminey (01:53):
This is like some things tends to wax and wane depending on who's sitting at 600 1600 Pennsylvania Avenue. At the moment. The, the current incumbent I think in his speech just last week was coming out very strongly in favor of protecting religious expression. It's obviously a hot global topic still but we will confine ourselves for this discussion to how it affects the employment relationship. The old rule was set in a case called transworld Airlines versus Hardison, and you can tell how old it was from the, the defendant company that I don't think exists anymore. This was a 1977 decision fairly early on in the courts grappling with the EEOC requirements. And they were trying to come down with a rule about what reasonable meant in terms of reasonable accommodation of someone's religious beliefs.

Elizabeth K. Dorminey (02:52):
And reasonable of course, is a wonderfully elastic word that we contend with in all kinds of different settings. But at any rate, the scenario here was that there was a flight attendant who wanted to swap shifts in order to accommodate her desire to not work on the Sabbath, which she considered a holy day. The union, interestingly enough, was on the other side saying, wait a minute, swap swapping shifts is not consistent with our collective bargaining agreement. You can't do that. And the Supreme Court to kind of cut to the chase basically came down on the side of the union saying that, you know, they didn't need to have to disrupt a, an agreed upon seniority system and set that aside in order to accommodate religious observance, because that would they considered that that would not be, you know, reasonable to impose on the collective bargaining agreement.

Elizabeth K. Dorminey (03:50):
And the and the employer there, this was a, this was kind of a, an interesting development, but they basically set the bar fairly low about how much an employer had to do to accommodate an employee's religious beliefs. So zooming forward to 2023, in the case of GR versus DeJoy, this was the big news at the end of the, the 2023 term where a postal service employee like the flight attendant in TWA, wanted to take time not to be required to work on Sundays. And, you know, certainly it's reasonable to expect when you sign up with the postal service, since they generally don't deliver mail on Sundays, that you're not going to be required to violate your religious beliefs in order to satisfy your employer. Well, one thing led to another and the postal service entered into a contract with, I believe it was Amazon or one of the big delivery companies and postal service workers were assigned to deliver packages as subcontractors for this delivery service on Sundays.

Elizabeth K. Dorminey (05:00):
And he objected to that and ended up getting getting dismissed for his refusal to work on on those days. So the Supreme Court revisited title vii, which it's perfectly allowed to do, important to remember thing about the Supreme Court, is that unlike every other court in the United States, they're not bound by precedent. They don't have to live with their former decisions, they're bound by the Constitution. So they took a look again at Title VII and said, well, wait a minute. Un you should have a higher bar than that. And what they came up with was looking back at the statutory language, which said that an employer has to accommodate religious beliefs if it unless it would cause undue hardship to the employer. So at the end of the discussion with the Supreme Court, they came down on trying to define undue hardship and came up with a meaning of substantially increased costs.

Elizabeth K. Dorminey (06:03):
So they ratcheted the bar up a little bit from the TWA case. And the moral of the story really is that nowadays an employer has to show that it will impose a substantially increased costs on them if they are required to grant the religious accommodation. And of course, this is something that applies to employers who are bound by the, to require by their size to comply with the title VI of the Civil Rights Act of 1964, which does not apply to your tiniest employers who have fewer than 15 employees. But you know, the anyway, the the, the upshot of it all is that they're taking a, a, a little harder look and requiring a little bit more discomfort on the part of the employee on the employer, rather before they're going to grant they're going to countenance his denial of, of, of sincerely held religious beliefs. There,

James L. Hughes (07:01):
I would add on that, that it, the court seem to still allow a, an understanding that it is an undue hardship if the accommodation would require the breach of the seniority provision in a collective bargaining agreement. So that can still particularly satisfy the requirement of undue hardship. Well, that's a good interrupt, Betsy <laugh>.

Elizabeth K. Dorminey (07:25):
No, no, I'm glad you, I'm glad you brought that up. The, the Supreme Court traditionally, and, and I think the entire US Justice system has, has always kind of wanted to defer to labor agreements in making their, their decisions because it's sort of considered to be a contractual matter that's the law between that particular employer and its employees and their loath to interpose the judicial branch in between those two when they've worked something out to maintain industrial peace. So that's, that's a good point, and I'm glad you you mentioned it. But unless there's a seniority system, I think that they'd have to hit a higher bar than they did with the, the hardison TWA decision. I was going to touch next on the Trump Administration's Executive Order on Sex. This was one of the first first, you know, day one executive orders.

Elizabeth K. Dorminey (08:26):
There was a pile of them, and this is EO 1 4 1 6 8, which is entitled, defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. So that's a mouthful, but this is, this is reflection of electoral promises kept, I think, and, and certainly a reaction to the issues being in the news a lot with, with the trans boys and trans girls playing in each other's sports. I noted with interest this morning that apparently the, one of the Scandinavian ski teams has a has a, a, a trans member and the Olympic Committee is having to deal with that. So we can look forward to that while we're watching the the Winter Olympics in the, in the coming weeks. This changed a number of things that the previous administration had allowed, like allowing people to self-identify on, on documents like passports and so forth.

Elizabeth K. Dorminey (09:33):
This is a, this hasn't had a whole lot of impact on employers particularly, so we're just going to pass over it fairly quickly. Although the bathroom wars do continue, I have dealt with this the first time this came through and for North Carolina employer. And they took the position when they were requiring all public facilities to be used only by people with the their birth gender. I was able to work things out with them by pointing out that it's a, it's a private facility if it's part of the employer's place of business, and that they were not bound by the dictates of the state, which applied to public facilities. These wars continue. Again, this is not something that has to concern an employer as much as in some other fora, but it does touch on it a bit as well.

Elizabeth K. Dorminey (10:34):
Next up is the EEO guidelines on harassment in the in January of this year, so just a few minutes ago, on January 22, the EEOC voted two to one to rescind the Biden ERA'S enforcement guidance on harassment in the workplace, which had been very voluminous and gotten into the territory of, of pronouns and so forth. The EOC new chair, of course, they have all new leadership there now at least in a new majority noted that rescinding that guidance is by no means licensed to engage in unlawful harassment by employers, but it does remove some of the more onerous requirements that this guidance had sought to impose on the way. The the, the EOC was going to look at, in particular, harassment of LGBTQ plus individuals and the very extensive workplace protections for pregnancy and childbirth and related medical conditions.

Elizabeth K. Dorminey (11:47):
These were could potentially have, have, have caused problems. Just a note on the EEOC, they're definitely still reviewing all of the complaints that come into them as they always have and conducting investigations and so forth. And just a reminder that a simple change in administration doesn't, doesn't change everything. So it, it's, every employer should certainly have their own guidelines as part of their workplace policies to forbid harassment or retaliation or discrimination of any kind. But the enhanced rules that the Biden administration had imposed are now pretty much a matter of history. There is some also some guidance from the Office of Personnel Management which really is restricted to the federal workplace. And those are, you know, this is another set of rules that they've imposed for themselves that do actually try to strengthen respect for religious accommodation in the workplace.

Elizabeth K. Dorminey (12:58):
I think they, it does really more to, to, to signal administration's attitude towards its own employees. But that's a, a reflection of their general outlook. Don't know if I need to mention a whole lot more about that. You know, accommodation for religious meaning like accommodation for a disability is really requires people to, I mean, employers and employees to engage in an interactive exchange and try to work things out. That's the first line of defense. So that, that should continue to be the, the, the, the principle guiding light for compliance with all these requirements. Now be, before I hand things back to Jim, to talk about some of the new more specific developments, I just wanted to mention very quickly the the, the, the business with Don Lemon in Minnesota at the church because this is a question that a lot of my colleagues and friends have asked me, knowing that I have access to databases that allow me to look up laws.

Elizabeth K. Dorminey (14:07):
So the law that Mr. Lemon and his cohort were, have been accused of violating is a federal law called the Face FACE Act, 18 USC, section 2 48. And that law prohibits using force threats or physical obstruction to injure, intimidate, or interfere with anyone exercising their religious freedom in a place of worship. So that is a very specific thing specific statute that the federal government adopted. And I think it's, it was obviously designed with the idea of keeping protecting those, expressing their religious beliefs in a space which they had a reasonable expectation of being unmolested from having people intrude. Another rule that came up in that business is a is, is an earlier one called the Conspiracy Against Rights, also known as the Ku Klux Klan Act which is a criminal statute 18 USC 2 41, and that criminalizes conspiracies to threaten or intimidate people to prevent them from exercising their constitutional right to workshop.

Elizabeth K. Dorminey (15:22):
Those of us old enough to remember the, the bombings that took place in places like Alabama during the early civil rights era, will understand why there was a strong motivation to protect people, again, in the expression of, of their religious beliefs and their, and their places of worship. You don't want the antagonists to have free, free license to, to, to enter a place of worship. So the next time it comes up at the coffee break that people are wondering what that law is, it's a very specific one that does apply just to places of, of worship. So I think maybe in order to allow time later on, I will quit talking for a bit and allow Jim to take you into some pending cases which look interesting and some recent recent decisions that might influence how we try to accommodate religious beliefs in the workplace. Thank

James L. Hughes (16:19):
You, Betsy. Let me start by giving you a little bit of background on why the Supreme Court might have changed the definition of undue hardship. Everything begins with the First Amendment. And under the First Amendment, the government is prohibited from making any law that establishes a religion or prohibits the free exercise of religion. And from that First Amendment in the 1960s, they created Title vii. And one of the types of discrimination that was prohibited in Title VII was discrimination based on religion. Now, the courts have interpreted religion to include religious beliefs and religious practices. A religious belief might be something like God created the heavens and the Earth. 6,000 years ago a religious belief might include something like Jesus Christ died on the cross for the forgiveness of the sins of everyone. Religious practice might be something like going to church on Sunday or attending religious services on Christmas Day, or attending a Bible study.

James L. Hughes (17:36):
Those would be religious practices. Now, title VII prohibits discrimination, or in other words, an adverse action against an employee because of their religious beliefs or religious practices. And a failure to accommodate a religious belief or a religious practice is also considered discrimination under Title vii. Now, that can be either on a disparate treatment basis or in some situations you can create a hostile work environment because of the way you deal with religion in the workplace. I will give you an example. A few years ago I handled a discrimination case case where two pharmacists or a major pharmacy company wanted to attend religious services on Christmas Day, which also happened to be a Sunday. And that particular pharmacy, pharmacy company announced to the world that they would be open on Christmas Day, which happened to be a Sunday, and that all their pharmacies would be open.

James L. Hughes (18:52):
These two individuals asked for an accommodation but, and the pharmacy company had a process for replacing people who needed an accommodation. You basically would go into their system and ask for people to substitute for you. Well, since it was Christmas day and since it was a Sunday, no one made themselves available to replace these two pharmacists. The two pharmacists decided they were going to church on Christmas Day anyway, so their locations were closed, which was contrary to the announcement that the company had made to the general public. In response, the company terminated these two longtime valued employees because of their disregard of the company directive. That case went to summary judgment here in the northern District of Georgia. And the district court ruled that the company's practice of providing an accommodation was insufficient. So this was several years before the Supreme Court decision in DeGraw.

James L. Hughes (20:14):
So you can see that there's always really been a tension between what constitutes discrimination and whether at an accommodation in the context of a religious belief or practice is reasonable. There was a recent Supreme Court case last year that you probably read about in the press involving a school board's introduction of L-G-B-T-Q material into the elementary school classroom curriculum. That case was Mahmud versus Taylor. And that case considered the question of the parents' free exercise of religion rights with respect to their children versus the schools' policy of trying to create an an inclusive environment. The Supreme Court ruled in a six three decision that the parents pre-exercise religion rights were violated, and that an injunction could be issued requiring the school to exempt the children of those parents from any sort of L-G-B-T-Q curriculum. In another case arising out of the fourth Circuit, which is basically the Virginia area, there was a substitute teacher who objected to the school board's guidelines for student gender identity.

James L. Hughes (21:47):
There were two types of claims made in that case. One was a discrimination case and one was a reasonable accommodation claim with respect to the discrimination claim. The court held that the substitute teacher was incorrect. There was no discrimination because everyone was treated the same. The court did agree, and the school board conceded that this was an accommodation issue. And the question became, what is the most reasonable accommodation? One accommodation that has been accepted from time to time is using the student's last name. And that seems to be a, a reasonable resolution of that sort of dispute, but sometimes school districts won't go along with that. There was a recent case out of Indiana involving a m teacher and all, although originally the trial court ruled in favor of the school board. The seventh Circuit ruled in favor of the teacher and said that the school board did have to make a reasonable accommodation that would allow the teacher to use either the last name or to have another person, another employee, deal with the student directly.

James L. Hughes (23:16):
Let me talk about another case involving an employer and the state of Colorado. Sometimes employers have to comply not only with federal law, but also with state law. And in this particular situation of 3 0 3 Creative LLC versus Linas, which was another Supreme Court decision that came down in 2023 the owner objected to providing her services for same sex marriage couples. The state of Colorado has a law that requires employers to provide access and services for all types of people, including homosexuals and L-G-B-T-Q types. The Supreme Court upheld the owner's right to practice her religious beliefs as she saw fit despite the Colorado law. So it Colorado's been to the Supreme Court several times on its law prohibiting discrimination and usually the employer or the person challenging the law will win.

James L. Hughes (24:36):
Let's talk about bathroom rules. Now, the Biden administration per pass guidance that basically expected employers to allow a person to use the bathroom of their gender identity. The Trump administration has basically reversed that guidance, as Betsy mentioned. So, what's an employer to do? Well, our first questions that came up about this were because women were objecting to men in their restaurant, even though the men might be wearing dresses. Our initial advice was if there is a restroom available that anyone can use, then the transgender person should be directed to that restroom. That is still a possible solution to any sort of transgender issues. And I think it's certainly appropriate to point out to those individuals who claim to be transgender that people of the opposite sex biological sex object to their using the restroom that they identify with.

James L. Hughes (25:52):
So we fully expect that the Trump executive order will be the prevailing position of the government at least during the Trump administration. Let's also talk for a moment about social media. Some companies have in trod net social media that allows employees within the company to post comments about what's going on. And some companies believe this sort of intracompany social media promotes comradery, but it's also a, a, a vehicle through which some employees can be rather hostile to each other or to the company. So if you have an intranet, social media policy and social media platform, you really should consider monitoring that platform to ensure that no improper or disrespectful language is being communicated through the platform.

Elizabeth K. Dorminey (27:01):
Jim, can I drop a footnote here? Sure. This, this makes me think that just the, the topic of social media in general is, is, is huge now, and not getting any smaller I am reminded that there were there were, there was an incident in Atlanta just a few years ago of some medical personnel posting videos that mocked patients and that resulted in their swift termination from employment once that, that got around. Our general advice to to employers to put in their employee handbooks is, is, you know, it's very hard to police these kinds of things because there's ideas about free expression. But a, a good rule of thumb has always, in my mind, been to not put anything on social media that to you don't want your mother and your boss to see. It's, it's hard and getting harder because the younger generations coming up are so accustomed to living their lives on the screens on their phones. But it's a, it's a, it's a a fertile area for, for, for disputes and, and trouble and potentially even legal action when when things things go orry, feelings get hurt.

James L. Hughes (28:21):
Yeah, I certainly agree with that, that because social media has become so prominent and because people do use it and express what can often be called hateful comments it's, it's really become a problem. And to the extent an employer has an internal social media platform that's something that's going to require constant monitoring. And Betsy's example of not having a policy of prohibiting employees from posting anything that they would not want their mother or their boss to see might be a good way of explaining what your policy is. We are now open for questions, and I have arranged so that if you have a question, all you need to do is unmute your microphone and tell us what your question is, and then either Betsy or I or both of us will respond to your question. I

Speaker 3 (29:26):
Have a question.

James L. Hughes (29:27):
Okay, Barb.

Speaker 3 (29:29):
If an employer has a handbook that includes not wearing clothing with logos except for their provided attire, and a new employee comes wearing t-shirts showing, you know, believe in Christ and other kinds of sayings, how would the employer handle that?

Elizabeth K. Dorminey (29:56):
The uniform rules have generally been upheld because obviously that's not the only the only way people can express their beliefs. And as long as the prohibition isn't specific to religious slogans, for example, and is couched in terms of, you know, we want you to look well turned out and the way that, you know, maybe customers are going to expect to see you this is the, you know, this is our, our policy on, on how we wish you to dress. And it is couched in terms of being a, a, a, you know, uniform or, or dress code for the workplace. Those generally will be upheld. Now, where it gets a little more complicated is when you have headscarves and beards and so forth. And generally the courts have allowed people to, to wear a headscarf if that's part of their beliefs.

Elizabeth K. Dorminey (30:53):
And to and to wear a beard is if that is part of their belief system, even if the company's general rule is not to wear head coverings or have facial hair unless there is a specific kind of safety reason for it. Sometimes in a certain kinds of, you know, manufacturing settings you know, a headscarf could be a real liability because there's the risk of something getting caught on machinery and could result in serious injury or even death of, of the employee. But I think in, in terms of a, of a, of a t-shirt with a religious slogan, if you are company policy is, is no slogans, then it's going to be neutral as to religion because you're not gonna let anybody come in with, you know, Pittsburgh Steelers either, or, you know, George Bulldogs even, God forbid. And, and then to that extent, you, you, you would not be running a foul of religious accommodations, but maybe, let's see what Jim has to say about it. Yeah,

James L. Hughes (31:56):
I certainly agree with Betsy. And the problem that most employers will encounter is consistency. Like Betsy's example of the Georgia Bullocks t-shirt versus the Jesus Christ is Lord t-shirt, you're gonna have a problem. So it's hard to generalize, but if you are consistent in every situation, your policy will typically be upheld. I will say that religion is kind of a special area. So if, if you are finding that religious symbols or religious expressions are creating a problem in the workplace, then it would be better for you to consult with legal counsel to reach a resolution that will keep you out of trouble. Thank you. Any other questions? If you do have a question, I'll just remind you that you can unmute your microphone and then either Betsy or I will answer it.

Elizabeth K. Dorminey (33:03):
Jim, do you wanna say something about Bostock? If we've got a few minutes? <Laugh>

Elizabeth K. Dorminey (33:09):
That, that takes me more than a few minutes. That's really not fair. <Laugh>

Elizabeth K. Dorminey (33:14):
There to the Supreme Court's decision that for several years ago that held that L-G-B-T-Q gender persuasion was a protected category under Title vii, there's been some discussion that that case might be overturned. I, you know, always with the Supreme Court, you just kind of have to wait and see which way they decide to jump. But if I were a a a a gambling type person, I might put my money on it not being overturned given the, the, the, the way that the world seems to be evolving. But, you know, one never knows. I don't know. Jim, do you have a different perspective?

James L. Hughes (33:56):
Well, it, it's interesting that you raise that. Of course, the Bostock decision came out like 10 years ago. There is a pending Supreme Court case that raises the issue of whether transgenders can participate in women's sports, in this case arises under Title ix, which has similar sex discrimination language to Title vii. And in the Bostock case, the Supreme Court expressly said, we're, we're not talking about bathrooms, we're not talking about anything else. We're only saying in this particular case that these plaintiffs have made claims that are satisfy title VII's sex discrimination prohibition. So I, I would expect that in the context of Title ix, which has similar language, I I would expect the court to rule that transgenders cannot participate in women's sports, and that will probably be a five, four or a six three decision. But I think there's enough national recognition that transgenders participating in women's sports is a problem and a safety hazard for women. So,

Elizabeth K. Dorminey (35:23):
I, I I just wanna say I agree with you, Jim, because I, I think, you know, if anything is gonna receive special treatment, it's gonna be children in sports. And I think that that's really what's going to lead the court. And I would, again, I I I, I think when they reach this decision, they're going to make it quite as narrow as they possibly can. But they will come down on the side of excluding trans people from women's and girls sports and not the other way around.

James L. Hughes (35:52):
Well, it arose in the context of girls seeking protection. So I, I think that the court will construe Title IX differently than the way it's construed Title X. Any other questions? Let's see. It looks like I've got one question here. The question is is, is the current EEOC administration as well as the majority of the Supreme Court likely to empower religious liberty for Christian claimants? I would say that they recognize religion as a protected right, for not only Christians, but Muslims, Jews, any sort of recognized religion. So, well,

Elizabeth K. Dorminey (36:41):
Excuse me again, Jim. I'm sorry to jump in, but the the, it is interesting though, to look at the record of the kinds of cases that the EEOC itself brings, which is a separate, apart from all the kinds of, of discrimination cases that they, they review through the you know, the, the, the charge filing process where you submit a position statement and so on and so forth. The EEOC is very selective about the cases that it decides to bring. But that being said, you know, and their, their, their principles are, are, you know, neutral. They, they, you know, it's religion. It's not a specific religion that they're, that they're trying to to protect here. But during the some recent administrations, the cases brought by the EEOC on behalf of someone complaining about religious accommodation or discrimination or retaliation were predominantly for Islamic people. And I think that that may change, and it will be interesting to see what kinds of cases than EEOC under its new management will be bringing. And I think the person submitting the question may be correct that they might look at cases filed by, by Christians a little bit more than the, the, the, the former sort of pattern of predominantly Islamic challenges.

James L. Hughes (38:14):
Well, I guess I would just point out that the MOU versus tailored case was brought by Muslim parents and Christian parents. Mm-Hmm <affirmative>. So the court did not distinguish between Muslim and Christian. It just recognized that both religions were ob were objecting to the introduction of L-G-B-T-Q mat material into the public school environment. And the court said, we're ruling with the parents and their free exercise of religion as they deem appropriate for their children. So I, I would not expect there to be a, a difference in matters that are generally accepted by all religions. There are the old peyote cases where the issue of free exercise for religion has arisen. And the, the court's been kind of skeptical about the use of drugs and, and justifying that use of drugs by religious means. So when you're talking about religious beliefs, I think this court's still going to look very closely at whether it is a recognized religion. That's probably the first question that, that the court considers. Is this really a religion or is this some sort of mechanism for justifying what they would otherwise not be allowed to do?

Elizabeth K. Dorminey (39:53):
Well, and, and on that note, Jim, let me add that they will, the second thing they look at will be whether the belief is sincerely held, which is where you're going. I did have a case a number of years ago where someone wanted to not be required to work on Saturday because they said they were Seventh Day Adventist, and then a little bit later they complained that they shouldn't be made to work on Sunday. 'cause That was when they needed to go to church. And we had to kind of have a discussion about, well, you know, which, which one is it at this point? And you know, ultimately did not end well for the, the person claiming claiming the beliefs. 'cause There seemed to be some doubt as to the sincerity of his belief in anything other than the fact that he wanted his whole weekend off.

James L. Hughes (40:38):
Yeah. And we had a situation recently where a person was claiming that they wanted to be off on Tuesdays so they could go to a Bible study. They were also claiming to be Seventh Day Adventist. And the only day of worship that I could find for Seventh Day Adventist was the Sabbath of Friday evening to Saturday evening. So we're waiting for the EEOC to make a decision about which direction that case will go. But it I'm inclined to think that the employer would have to show it would be difficult for its business, which I think we could show. I mean, the employer was a small business short staffed. It, it's going to be interesting. We'll, we'll see. Why does it have to be an organized religion standard? Why can't an individual say, these are my religious beliefs? The Supreme Court has gone into some detail about what it takes to demonstrate a religion, and just an individual who says, this is what I believe. If it's not part of some significant group that I don't believe the Supreme Court will give it recognition.

Elizabeth K. Dorminey (42:03):
Well, no, I, and and that's true. And I think that that may actually be written into the regulations somewhere, if I remember correctly, and I, I couldn't cite it for you, Larry Stein might be able to do that. 'cause He usually has the code of federal regulations right in his head down to the, the, the, the section numbers. But some of this came up in the in, in prison litigation, interestingly enough, because for a while there was a religious freedom, I think religious Religious Freedom Restoration Act or something. 

James L. Hughes (42:33):
Yeah, it's still around

Elizabeth K. Dorminey (42:34):
You remember, well then this was maybe something else, or perhaps it was a limitation on that. But they encountered incarcerated persons who were claiming that their religion required a sacrament of stake and Hustler Magazine and the the people who were being asked to entertain this accommodation of their free expression of religion, were somewhat skeptical about that. So I think that that led to a a, a a, a bit of a narrowing of what people were prepared to recognize in terms of, of a religion through some of this excesses in in, in prisoner litigation.

James L. Hughes (43:10):
Okay. Well, ladies and gentlemen, we thank you for taking your lunch break to meet with us today. I hope this was helpful and educational. And if you have any specific questions, please feel free to call either Betsy or me. Have a wonderful weekend, everyone. Have a nice weekend.

Elizabeth K. Dorminey (43:29):
All right, you too. Have a nice weekend. Thank you.