That’s the argument made in EEOC v. Star Transport Co. (C.D. Ill. filed May 29, 2013), a lawsuit brought by the EEOC on behalf of two employees, Mahad Abass Mahamed and Abdikarim Hassan Bulshale. (Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.) Pamela Geller (Atlas Shrugs) condemns this, writing, among other things,
Islamic supremacists chip, chip, chip away at the establishment clause, and in doing so, impose Islam on the secular marketplace. Muslim lawsuits against Hertz, Wal-Mart, Target, Disney and a host of other American businesses for special rights, special accommodation have been largely successful creating a special rights for a special class of people — which is an accordance with Islam (in which Muslims are superior to the kuffar). But it goes against every American tenet of individual rights and separation of mosque and state. Someone ought to remind the EEOC that their name is Equal Employment Opportunity Commission. Equal as in no special rights for any particular class.
The responsibility, however, lies not in the EEOC, but in the Congress, specifically in the Congress that in 1972 required employers to make “reasonable accommodations” that exempt religious objectors from generally applicable work rules. I summarize some of the general rules imposed by federal religious accommodation law here, but the brief summary is this: An employer must give religious employees special exemptions from generally applicable job requirements if (1) the requirements interfere with an employee’s sincerely felt religious obligations and (2) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). As one might gather, this was not enacted at the behest of “Islamic supremacists,” though other religious groups certainly did support this.
Nor does it create “special rights” for Muslims; the protections extend to all religious objectors, and have even been interpreted by most courts and the EEOC to extend to secular conscientious objectors. Indeed, the EEOC has routinely sued on behalf of Christian employees who, the EEOC claims, weren’t properly accommodated. For some cases during the Obama Administrations, for instance, see the Supercuts case (Christian who refused to work Sundays), the Guam Aircraft case (Jehovah’s Witness who refused to raise flags), the Rent-a-Center case (a Seventh-Day Adventist who refused to work Saturdays), the Walmart case (Mormon who refused to work Sundays, the Fries Restaurant Case (Pentecostal woman who insisted on wearing a skirt rather than pants). And to my knowledge no Supreme Court Justice has interpreted the Establishment Clause in a way that would prohibit such an exemption regime; Justice Stevens is the only that has made suggestions that could be so understood, but even he retreated from them in joining the Court’s unanimous opinion in Cutter v. Wilkinson.
Now the rules do not categorically require accommodations of all claims. Even a modest cost might be seen as an “undue hardship” on the employer. Certainly no employee could insist on an accommodation that would, for instance, bar the employer from selling or transporting alcohol. But if the cost to the employer and coworkers is very slight — perhaps because, in this case, there are very few loads that contain alcohol, and those loads could easily be assigned to others without substantial expense or substantial unfairness to coworkers — then the employer could be liable for failing to accommodate the religious objectors.
Pamela Geller’s post argues, “If these Muslim truck drivers don’t want to deliver alcohol, then they shouldn’t have taken a job in which part of their duties would be to deliver alcohol. It’s that simple.” That’s a perfectly good argument for amending Title VII. But it is precisely the argument that the religious accommodations provision rejects. See, e.g., Tramm v. Porter Mem’l Hosp., No. H 87-355, 1989 U.S. Dist. LEXIS 16391, at *33 (N.D. Ind. Dec. 22, 1989) (concluding that a hospital had to reasonably accommodate a nurse who objected to cleaning instruments that had been and would be used in abortions, applying Title VII and the Free Exercise Clause); American Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 777 (9th Cir. 1986) (concluding that government employer had a duty to reasonably accommodate, by arranging transfers to other jobs, postal workers who had a religious objection to processing draft registration forms); Best v. California Apprenticeship Council, 207 Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training organization — which was treated by state law as an employer — had an obligation to accommodate an apprentice’s religious objection to working in a nuclear power plant); and other cases cited here. In each such case under Title VII, of course, the employee would have to show that exempting him from the religiously objectionable duties would not be an undue hardship on the employer. But if the employee (or the EEOC suing on behalf of the employer) did so show, then the employee would be entitled to an exemption.
Moreover, a claimant who is demanding a religious exemption may prevail even if his view is not shared by most coreligionists. Small sects, and even idiosyncratic religious believers, are as protected as large sects: This flows in part from the multiplicity of American Christian denominations; from the sense that discrimination among denominations is wrong; from the reality of religious disagreement even within denominations (something majority-Protestant nations have long been familiar with); and from the courts’ sensible conclusion that secular courts can’t judge which group within one denomination has the better view of the denomination’s “true beliefs.” Thus, consider the Supreme Court’s opinion in Thomas v. Review Bd., where a Jehovah’s Witness’s exemption claim was based on his objection to working in war production:
The [lower] court also appears to have given significant weight to the fact that another Jehovah’s Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was “scripturally” acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences ….. [Protection] is not limited to beliefs which are shared by all of the members of a religious sect…. [I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.
Likewise, in Frazee v. Illinois Emp. Sec. Dep’t, another case involving a Christian claimant, the court wrote: “[W]e reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.”
A claimant may also prevail even if his belief seems unreasonable, logically inconsistent, or contradicted by his own religion’s scriptures: This too the Supreme Court held in Thomas, against the backdrop of the history of deep disputes within Christianity itself:
[A religious-exemption case] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others …. The [lower] court found [claimant’s willingness to help produce steel, even when it is a raw product to be used in arms, but not tank turrets] inconsistent with Thomas’ stated opposition to participation in the production of armaments. But … Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.
But a claimant may prevail only if his beliefs are sincerely held: If a court concludes that the claimant is lying about his beliefs, then his claim will be rejected. And courts may often want to scrutinize a claimant’s sincerity when his beliefs seem to coincide neatly with his secular interests, especially secular financial interests. The exemption claim here, though, likely involves little incentive for insincerity. It may be that the claim should be rejected because it would be too burdensome on the employer, but there’s little reason in this case to doubt the claimant’s sincerity.
Maybe it’s bad for federal law to impose such an obligation on employers, whether because the law is too vague, imposes unduly on private employers, imposes unduly on coworkers, gives an undue preference to conscientious objectors, or something else. But the law does impose such an obligation, and provides a valuable benefit to religious objectors. Under American statutory and constitutional rules of religious equality, Muslims are no more and no less entitled to this benefit than are Christians, Jews, or others.