There Might Be A Religious Exemption
But it doesn't have anything to do with religion
Because of all the furor over vaccine mandates and religious exemptions to them, I decided to look up the text of Title VII of the Civil Rights Act of 1964. The spirit of the Act is that employers can’t force you to do things if doing them would violate your religion.
For example, if you’re Jewish and the boss says, “from now on, we’re going to have departmental breakfasts, and you’re all required to attend and eat bacon”, you’d have a good case that your religious rights were being violated.
But of course you don’t win or lose court cases based on the spirit of the law. And the letter of this law doesn’t seem to rule out much.
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First, what counts as religion? Definition (j) from the text of the act reads as follows:
The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
That doesn’t seem to give much hope for people seeking to claim a religious exemption to being vaccinated. It’s a stretch to think being vaccinated against COVID disqualifies you from some religious practice. Even the snake handlers, whose religious practice demands not taking the precaution of having venom antidote on hand, can’t really say that precautions against COVID violate their practice.
But what about “religious observance?” Could someone reasonably say that they would be in violation of their religious observance if they were vaccinated against COVID? Here’s where it gets tricky.
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In order to interpret and enforce the Civil Rights Act, the government also founded The Equal Employment Opportunity Commission. Its Questions and Answers section gives a lot of detail to the question “What is religion?” Here are a few excerpts:
For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.
OK, so my religious beliefs might not actually be part of any recognized religion. There might only be a “small number of people” who believe them. The number “one” seems to qualify as small, right? So I might be the only one who believes this thing, and it might be “illogical or unreasonable” according to others, but that doesn’t disqualify it from religious protection according the EEOC.
In reality, though, the only people I’ve seen objecting to the vaccine on religious grounds in fact identify as Christians. Couldn’t an employer respond by saying, “Come on, your religion does not say you can’t be vaccinated. It is nowhere in the Bible or the Christian Creeds.” The EEOC specifically says, though, your religious beliefs might not have anything to do with the religious group you’re affiliated with:
An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.
Furthermore, the religious belief you want protected doesn’t even have to have anything to do with the traditional subject of religion: God or the divine. It just has to be about what you believe to be right and wrong:
Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”
All you have to do is sincerely hold that belief about what is right and wrong, and hold it “with the strength of traditional religious views.” Now what could that last phrase mean? I don’t know what the minimum threshold would be for qualifying, but I’d guess that being willing to lose your job over it counts as sufficient strength of belief.
So all this means that to qualify for a religious exemption to getting a vaccine, I just have to really believe that getting vaccinated is wrong. Presumably, that’s what people who haven’t gotten vaccinated yet really do believe — that’s why they haven’t gotten vaccinated! And to keep from being forced to get the vaccine, they just have to say they’d be willing to lose their job over it. Then they wouldn’t have to lose their job over it.
This seems like a loophole big enough to drive an ambulance through.
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But wait. There is at least some consideration for the employers in all this too. In the Guidance Document from the EEOC it states:
Your boss must excuse you from participation in an activity that is not religious, but conflicts with your religious beliefs, if it would pose little or no burden on the business.”
OK, this is something, right? Can’t employers show pretty clearly that having unvaccinated employees causes more than a little burden on the business? How many work days have been lost to COVID? And what would the economy be now if everyone had gotten vaccinated when they were able?
I don’t know. And I’m sure there is a whole bunch of case law and precedents about this that I’m not considering here. I’m not a lawyer.
But I used to teach logic, so I have to point out that the “little or no burden” clause is only a sufficient condition for a religious exemption — not a necessary condition (at least according to the wording above). That means someone could argue that showing there is a burden does not automatically mean you don’t have to give the religious exemption.
And that means there is plenty of ambiguity here to keep lawyers on both sides busy for awhile. We’ll see you in court — as long as there are enough employees left in the courts to keep them running.