A common response to the Kim Davis situation (see yesterday’s post) is to say, “If you can’t do your job, you need to quit.” Perhaps that’s the way it should be in some cases, but it’s important to know that’s not what the law demands, apparently not even for public officials.
Eugene Volokh explains “the American legal rule as it actually is, and as it has been for over 40 years (since the religious accommodation provisions were enacted in the 1972 amendments to Title VII)” in “When Does Your Religion Legally Excuse You from Doing Part of Your Job?”
Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers—for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties—then the employer must accommodate them....
Thus, for instance, in all the cases I mentioned in the numbered list above, the religious objectors got an accommodation, whether in court or as a result of the employer’s settling a lawsuit brought by the EEOC. Likewise, the EEOC is currently litigating a case in which it claims that a trucking company must accommodate a Muslim employee’s religious objections to transporting alcohol, and the court has indeed concluded that the employer had a duty to accommodate such objections....
Volokh says Kentucky’s RFRA allows for religious exemptions for elected officials:
Title VII expressly excludes elected officials. But Kentucky, like about 20 other states, has a state Religious Freedom Restoration Act (RFRA) statute that requires government agencies to exempt religious objectors from generally applicable laws, unless denying the exemption is the least restrictive means of serving a compelling government interest. The federal government also has a RFRA, which may apply to federal court orders issued to state elected officials.... Nothing in them exempts accommodation claims by elected officials....
The terms of these RFRAs actually seem to offer greater protection for claimants—to deny an exemption, the government must show not just “undue hardship” but unavoidable material harm to a “compelling government interest.”
He then applies the law to Kim Davis as a public official, saying he thinks “she’d have a good case” under state law:
[I]t’s very likely that (1) the Kentucky RFRA, by its terms, would apply to religious exemption claims brought by elected officials, and (2) it would provide at least the protections offered to ordinary employees by the Title VII religious accommodation regime, and possibly more....
[B]esides her losing claim in the federal lawsuit, it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears...is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage....
Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.
Please read the rest of “When Does Your Religion Legally Excuse You from Doing Part of Your Job?” The existence of RFRAs doesn’t mean one must always litigate rather than quit (that decision requires wisdom and prudence), but it corrects a knee-jerk reaction I see happening out there that assumes one must always quit. That’s not how America works. The way we’ve worked this out in the past is by using the least restrictive means to achieve the government’s compelling interest (see here and here). If a reasonable accommodation is possible, it should be, and often is, given.