In the wake of the United States Supreme Court’s ruling in the Hobby Lobby case, holding that the Religious Freedom Restoration Act provides protection to closely held corporations to refuse, for religious reasons, to provide birth control methods and services to employees under the Affordable Care Act’s contraceptive mandate, the issue of accommodating an employee’s religious beliefs has also been called into question.

In light of that, my colleague Jarad Lucan returns to the blog this morning with this post on reviewing Connecticut’s Fair Employment Practices Act’s (“CFEPA”) religious antidiscrimination provisions.

Let’s start with a “simple” proposition.

Generally speaking, Connecticut’s anti-discrimination laws make it illegal for an employer to discriminate against an employee because of that employee’s religious belief or practice.

While not explicit in the statutory framework, it is also illegal for an employer to refuse to accommodate an employee’s religious belief or practice that may run contrary to an employment requirement, unless such accommodation would cause an undue burden on the operation of the employer’s business.

Sounds simple enough, right?

So what’s the problem? Well for most employers, the problem is determining whether an employee’s religious belief is bona fide. In other words, is the employee’s religious belief “sincerely held?”

Indeed, if a religious belief is not sincerely held, then an employer does not have to provide an accommodation.

For example, an employer may rightfully question the sincerity of an employee’s request to wear a beard as an accommodation from the employer’s grooming policy based on his religious belief, if the employee is a long time employee, has never changed his religion, and has never worn a beard in the past.

While there is no bright line test (there rarely is in employment law) for determining the sincerity of an employee’s religious belief, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance in this area. As a reminder, Connecticut courts often look to federal antidiscrimination decisions and guidance when interpreting the CFEPA.

According to the EEOC, when questioning an employee’s belief, employers should begin with the assumption that any request for accommodation is based on a sincerely held religious belief, even if the employer is unfamiliar with the particular belief or practice.

If the employer has an objective basis to inquire about the employee’s sincerity, the employer may seek additional corroborating information, according to the EEOC. Such additional information does not have to be in a specific form, and it may be a written first-hand explanation without third-party verification. When third-party verification is needed, the third-party does not have to be a religious official or member, but can be another who is aware of that employee’s belief.

Employers are cautioned, however, not to demand unnecessary or excessive evidence to support an employee’s claim that he or she has a sincerely held religious belief.  An employer who improperly demands information may be liable for denying a reasonable accommodation request, and may have its actions challenged as retaliatory or as a pattern of harassment.

After receiving information from the employee, an employer may seek to provide an employee with an accommodation or deny a request for an accommodation based on a determination that the employee’s asserted religious belief is not sincerely held.

Although there are only a handful of court decisions dealing with the issue of sincerity, the following factors, may help determine the sincerity of an employee’s religious belief:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Of course, no factor is dispositive, and as always, an employer should seek additional guidance from a legal professional before making any determination that may lead to a claim of religious discrimination.

Over the past month, after the Supreme Court’s Hobby Lobby decision, much has been made in the press about how it is unprecedented for the court to consider a company’s religious beliefs in making its decisions.

The issue of taking into account a corporation’s religious belief in the workplace has been also catapulted to the center of the discussion regarding consideration of the Employment Non-Discrimination Act (ENDA), a bill which would prohibit discrimination in employment on the basis of sexual orientation on a federal level.

Some are now asking that ENDA, if passed, have an exception for religious organizations.  In response, a number of prominent civil rights groups have withdrawn their support for the bill.

A joint statement issued by several organizations, including the ACLU, said the following:

ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations – including hospitals, nursing homes and universities – a blank check to engage in workplace discrimination against LGBT people. The provision essentially says that anti-LGBT discrimination is different – more acceptable and legitimate – than discrimination against individuals based on their race or sex.

Here’s the thing, rightly or wrongly, the notion of a religious exemption in an employment discrimination law isn’t unprecedented; Connecticut passed one 23 years ago.

And it hasn’t been amended since.

I can now hear from many of you: Wait, what?

Yes, right there in Conn. Gen. Stat. Section 46a-81p is a specific exemption for religious corporations to the prohibition of sexual orientation employment discrimination.

The provisions of sections 4a-60a and 46a-81a to 46a-81o, inclusive, shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.

Now, before you start reading “religious corporation” to include companies like Hobby Lobby, the answer may not be that simple.

For one thing, the sexual orientation anti-discrimination laws don’t define what they are explicitly; elsewhere in state law there is a reference however, to “religious corporations” and societies.  Conn. Gen. Stat. § 33-264a states that: “Three or more persons uniting for public worship may form a corporation or a voluntary association. Such a corporation shall be called a religious corporation and such a voluntary association shall be called a religious society.”

So perhaps including a company like a Hobby Lobby into this definition may not fit.

But what IS meant by “religious corporations” in this particular section on employment law? How do courts define it? Is it just a church or something more, like an organization’s for-profit bookstore? Well, I haven’t located a court case that has confronted the issue head on.

The Connecticut Supreme Court has only cited the statute by off-handed refereces that the legislature made an exemption for “religious organizations.”  But that too is a bit odd, because the word “organizations” isn’t in the statute itself. (See, for example, the court’s use in Patino v. Birken Manufacturing.)

I’ve taken a look at the bill analysis from the Office of Legislative Research from its passage in 1991 and it isn’t all that helpful. It states merely that “the bill exempts religious organizations from these employment provisions but only as to their employment of people to carry out their work.” (There’s that use of “organizations” again.)  An earlier version of the bill had a narrower exemption too, but that was expanded through a bill amendment at the time.

The Connecticut legislature has considered amendments, over time, that would, for example, put the sexual orientation anti-discrimination laws into the more general provisions prohibiting discrimination, but even this year’s Senate Bill 385, which would make that type of change, would keep the language of the “religious corporation” exemption as is.

I suppose that the lack of litigation on the state’s law exempting “religious corporations” from compliance with the anti-discrimination law may be indicative of its general acceptance here in Connecticut or its narrow application. And perhaps a court looking at this will find that for-profit corporations are just inherently different than religious ones and that the use of the language here precludes a broader interpretation.

But I suspect that the lack of discussion of this exemption is also due to the fact that many people are unaware of its existence or the specific language of the exemption either.

Either way, in light of the Hobby Lobby decision from the Supreme Court, perhaps we will see the Connecticut General Assembly revisit this statute. While an exemption for a “religious corporation” may have been a necessary compromise in 1991 at the time of the bill’s original passage, I wonder if legislators believe it should be construed as broadly as some might argue after Hobby Lobby.

After all, if corporations are “people” too, it’s not that far of a leap for someone to argue that they can be “religious corporations” as well.