Religious Accommodation at Work: Lessons from Labor Law

When should employers be exempted from generally applicable law because of their religious beliefs? Variations on this question have reached the Supreme Court in a series of recent cases. But these high profile, politically charged disputes represent only a subset of the religious accommodation claims with which agencies and courts are grappling. Other contexts yield useful insights about how we might strike a balance between employer religious liberty and legal protections for third parties, including employees.

This Article focuses on arguments by religiously affiliated colleges and universities that they should be exempt from the National Labor Relations Act. It begins by tracing the recent history of those arguments, and predicts that they will enjoy a warmer reception from the Trump NLRB than they did from the Obama Board. It then discusses how the legal dispute over union organizing at religious institutions of higher education helps illuminate aspects of the larger debate over religious liberty for enterprises. First, this dispute illustrates courts’ difficulties in separating questions about employer religious liberty from courts’ conceptions of appropriate managerial prerogative.

Second, it shows both that some religious exemptions have significant value in secular markets, and when that is true, employers may be able to negotiate accommodations that partially compensate employees for the costs they incur as a result of employer accommodations.