A “Cruel Choice” Made Law: Freewheelin’ Accommodation Claims and Harms of Conviction Endemic to Adverse Action

Authors

Anton Sorkin

Abstract

When Congress in 1972 expanded the definition of religion un-der Title VII, it accomplished an important step toward diversifying the workplace. Religion—in all of its manifestations—was given an insur-ance policy. No longer could an employer hide behind a neutral work policy or find shelter behind claims of inconvenience if those same measures diminished a worker’s capacity to practice their religion. For the first time, an obligation was written “in stone”—one that re-quired a reasonable accommodation of religion, short of undue hard-ship. However, as courts took to the application of the Amended Stat-ute, a backdoor emerged that gave employers an out. Instead of a duty to accommodate, this loophole provided a second option: to do noth-ing! If an employer simply refuses to offer an accommodation to re-solve the conflict between work and religion, the employee is forced to decide between work and religion. If the employee chooses to work, he loses his cause of action for want of adverse action—a requisite ele-ment developed by lower courts in its jurisprudential framework. If the employee chooses to practice his religion, he may lose his job and—at best—prevail after many months (if not years) in litigation. This article attempts to close this loophole by offering three ap-proaches, one in particular based on the broadening definition of adverse action to account for harms of conviction triggered by this “cruel choice” between work and religion.

Recommended Citation

Sorkin, Anton (2022) "A “Cruel Choice” Made Law: Freewheelin’ Accommodation Claims and Harms of Conviction Endemic to Adverse Action," University of Memphis Law Review: Vol. 52: Iss. 3, Article 4.
Available at: https://digitalcommons.memphis.edu/um-law-review/vol52/iss3/4