What RFRA Has Wrought (Justia.com)

The EEOC filed a complaint last week on behalf of three female employees against United Health Programs of America, Inc. (UHP) and Cost Containment Group, Inc. alleging religious discrimination under Title VII of the Civil Rights Act of 1964. The companies’ behavior is the wave of the future if Hobby Lobby and Conestoga Wood were to win their cases invoking the Religious Freedom Restoration Act (RFRA) at the Supreme Court.

UHP and the Onionhead Practices Allegedly Foisted on the Employees

UHP is, according to its website, a “developer and wholesaler of quality cost savings health programs, . . . provides cost containment access to medical networks, turnkey solution plans to qualified private label resellers, . . . customizes product packages and plans backed by quality administrative and customer support services.” Cost Containment Group works with UHP. Like Hobby Lobby and Conestoga Wood, the businesses’ purpose obviously is not religious. The owners or management, apparently, are.

The EEOC complaint alleges that the companies have required employees to engage in Harnessing Happiness practices—more commonly known as “Onionhead” practices—which included “praying, reading spiritual texts, discussing personal matters with colleagues and management, burning candles, and keeping dim lighting in the workplace. . . [and] prayer circles, asking employees to thank God for their employment, and saying ‘I love you” to management and colleagues.” Employees also allegedly have had to wear Onionhead-related pins. If an employee balked, the owner’s aunt, Denali, would enforce discipline in such ways as moving the person out of their office, replacing her with a Buddha statue, and eventually firing her. This happened after one employee said that she was Catholic and could not put up with the beliefs being foisted upon her by management.

There is little doubt that the companies (or at least their lawyers) are closely watching the Supreme Court, which will issue an opinion in the Hobby Lobby and Conestoga Wood cases by the end of June. Why? Because the Court will be ruling, as a threshold matter, on whether a nonreligious corporation can invoke RFRA as a defense in any case. If the Court opens the door to RFRA lawsuits by corporations, expect UHP to raise RFRA as a defense.

As I discuss in a previous Justia column, Title VII forbids discrimination against employees based on religion for nonreligious companies that have over 15 employees. Hobby Lobby, Conestoga Wood, and UHP all fit this metric and, therefore, may not discriminate against their employees based on religion.

How the Supreme Court’s Hobby Lobby Decision Could Affect the UHP Onionhead Litigation

To be sure, UHP’s Onionhead proselytization is less subtle than Hobby Lobby’s attempt to imprints its religious beliefs on its employees by shaping the employee health benefit plan to exclude what the owners’ religion forbids. But Hobby Lobby’s discrimination is also a combination of religious and gender discrimination, so both cases present quite serious issues of discrimination.

If the Court rules as it should that corporations do not have a soul, and, therefore, no RFRA (or First Amendment) defense, then the UHP case appears to be an easy win for these employees and the EEOC. Under Employment Div. v. Smith, if the law is neutral and generally applicable, it is subjected to rationality review. The civil rights acts plainly satisfy that requirement. If the Court sides with Hobby Lobby’s owners, then all bets are off, because of the extreme standard RFRA imposes on all laws, but particularly the civil rights laws.

The problem is RFRA’s unreasonable standard. RFRA requires the believer to prove a substantial burden on her religion. That is probably easy for the Onionhead folks at UHP, because their religion requires them to spread their beliefs to others. (It is much harder for Hobby Lobby, where the burden is extremely indirect.) Assuming the Onionhead owner prevails in proving a substantial burden, then the government must show that the law serves a “compelling interest” through the “least restrictive means” for these believers.

I assume that the vast majority of judges would hold that Title VII’s rule against religious discrimination serves a compelling interest. The least restrictive means test was never the standard used by the Supreme Court, though, and has introduced a deep layer of unpredictability in free exercise cases. The black box question then is what judges would say is the “least restrictive means” for proselytizers. We shall see if this test ever needs to be applied in the UHP litigation.

The Big Picture on Discrimination by the Religious in Favor of Co-Religionists

Part of what is going on here is that when Title VII was enacted, religious lobbyists argued against the ban on religious discrimination. They wanted to give a wide swath of employers the right to hire only co-religionists. They lost, but they later pushed for RFRA’s extreme standard in no small part to trump Title VII and the rule against religious discrimination.

The Bush Administration backed a reading of RFRA that makes it easier for organizations to engage in religious discrimination. A 2007 Office of Legal Counsel memo argued that RFRA permits organizations receiving federal funding under the White House Office Faith-based and Community Initiative (renamed by the Obama Administration the White House Faith-based and Neighborhood Partnerships) to discriminate on the basis of religion in employment. Candidate Obama explicitly promised to lift that Order; President Obama has not followed through on that promise.

That OLC memo now is undergirding arguments that contractors who receive federal funding under the Violence Against Women Act should be able to discriminate in hiring based on religion. There is no end to the demands by religious believers to impose their religious worldview on others or to favor each other in employment decisions.

Whether Hobby Lobby wins or loses, it should now be abundantly clear that RFRA is a direct threat to civil rights. One of those in favor of RFRA, Rep. Jerold Nadler (D-NY) said in a hearing last week and earlier in the spring that he thought RFRA was supposed to be a shield, not a sword. He earlier stated:

When we passed RFRA, we sought to restore—not expand—protection for religion. We kept in place the core principle that religion does not excuse for-profit businesses from complying with our laws. Religious belief did not excuse restaurants or hotels from following our civil rights laws in the 1960s or an Amish employer from paying into the Social Security system in the 1980s. It should not be expanded now to allow for-profit companies to override the health care choices of female employees.

To hold otherwise allows the owners of for-profit companies to impose their beliefs on others—their employees and patrons—who may not share their beliefs and who will be harmed as result. I am hopeful that the Court will confirm that these sort of discriminatory actions by for-profit companies are neither protected by RFRA nor the First Amendment.

The problem for Nadler is that RFRA did not “restore” anything that existed before. As I explain in the column referenced above and at more length in God vs. the Gavel: The Perils of Extreme Religious Liberty, RFRAis a standard made out of whole cloth for cases never covered by the Court’s free exercise doctrine. If the Supreme Court hands this sword to for-profit employers, let the discrimination begin, and then expect the backlash RFRA so richly deserves.

Author Description

Professor Marci A. Hamilton

Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University                                          View Full Biography