Employment law update after Burwell v. Hobby Lobby

Are you married?
Are you planning on getting married?
How about plans for having children – do you intend to do that soon?
Will you need Saturdays off to go to synagogue?
When did you graduate high school?
I see you are wearing a headscarf – are you Muslim?
Can you tell me if you’ve ever been arrested?
Are you currently suffering from any chronic medical issues?
How many kids do you have?
How many days per year were you late or absent due to sickness in your last job?

These inquiries are just some of the old stand-bys on a growing list of questions that recruiting managers should not ask of the hopeful job applicant sitting on the other side of the desk. Asking these questions is not illegal – but basing a decision to hire on the answers is illegal under various employment laws. Since it is easier to make unbiased decisions when a hiring manager simply does not know the personal details about an applicant that might cause bias, it is considered a best practice for the recruiter to avoid asking personal questions at all.

With the Burwell v. Hobby Lobby decision that came out in June, the U.S. Supreme Court may have added another layer of complication to the recruiting process. Burwell is the case involving Hobby Lobby’s and other co-plaintiff corporations’ objection to including certain kinds of birth control in their health plans. Put simply, under the Affordable Care Act (ACA), a corporation must provide a wide variety of birth control options as part of its health care plan or else pay a penalty for providing sub-standard benefits to its employees.

The Hobby Lobby owners objected to providing some of those birth control options on religious grounds. They argued that their corporation should be exempt from the ACA’s requirement because of the owner’s religious beliefs, citing the Religious Freedom Restoration Act (RFRA). The Supreme Court agreed, holding that under the RFRA, a for-profit, closely held corporation may exempt itself from a generally applicable law when the law substantially burdens the corporation’s religion.

The Burwell decision itself was closely confined to the specific issue of whether closely held corporations, whose owners have a religious objection to certain types of birth control, must provide them as part of the benefits package, as required by the ACA.

However, it has already broadened a bit within the first two months after its issuance. Burwell has been cited in opinions issued by at least 14 lower courts, some of which have broadened the holding to include additional activity beyond that contemplated in the Burwell decision (namely, that signing a form declaring an objection to birth control is also a substantial burden that a corporation cannot be forced to do). One of these new opinions has also expanded the holding beyond the ACA to involve an indigenous tribe taking exception to the Migratory Bird Treaty Act (in a Texas fight between members of the Lipan Apache Tribe and the Department of Interior over possession of eagle feathers).

The Burwell decision has also been argued in new pending cases that apply the contraceptive mandate exemption to all contraceptives: in a case involving controversy over the proposed erection of an enclosure known as an eruv by Orthodox Jews in the Hamptons; in arguments presented by Native American religions attempting to distance their use of peyote from a Hawaiian church’s use of marijuana; and in arguments by Starbucks employees over being taxed on tips.

After Burwell, the religious affiliation of a company and its owners may have a direct impact on the application of generally applicable laws to its employees. This can impact the conditions on the job, shift scheduling, provision of benefits, and even pay scales. Job applicants now have an interest in determining the religious affiliation of their prospective employers, because it may impact the applicant’s job conditions. The candidate may wonder: Will that religious affiliation lead to a refusal to follow a generally applicable employment law? If so, does a prospective employee have the right to know? And if that’s true, what does a recruiter say when an employee asks, “How will this corporation’s religious beliefs impact my job and benefits?”
 

The sky is not falling

From the picture just painted above, it looks as though the entire delicate framework of hiring – and employment relationships in general – is about to collapse on itself. However, the practical realities of business and advertising, especially in the age of social media, provide a natural boundary to how far the Burwell decision will likely go.

It appears that, other than the ACA, no generally applicable laws affecting employment (such as those protecting employees from discrimination based on race, sex, national origin, age, disability, or – yes – religion) have been challenged under Burwell.

For example, it is doubtful that a corporation whose business model involves or caters in any way to women will want to be known as the one that fought the employment law that requires it to give women equal pay for equal work, even if it has a sincere religious belief that men should be paid more.

Many American companies already offer a wide range of benefits and enforce a number of workplace civility rules that are not prescribed by any law, because these rules and benefits serve the needs of the business. This is not to say that Burwell will never be used to challenge old stalwart employment laws, such as Title VII of the Civil Rights Act of 1964, or the Age Discrimination in Employment Act; only that a sweeping tide of destruction of all employees’ rights, subjugated to the religious beliefs of a corporation, is likely not imminent. The average job applicant will likely not think to ask about his or her potential employer’s religion, because that applicant will not feel threatened by an atmosphere of anti-employee animus that simply isn’t present in the United States. Truthfully, it may never come up for the large majority of recruiters.
 

But keep that umbrella handy

Nevertheless, recruiting managers should mentally prepare for savvy applicants who may bring up the question, “How will this corporation’s religious beliefs impact my job and benefits?” In order to discuss these issues without incurring liability, the employer’s representative should turn the applicant’s focus to the structure of the job and benefits itself, and not the reasoning behind that structure. In short, little has changed in the recruiter’s world post-Burwell.

A company’s ability to provide benefits depends on the company’s performance, market trends, its resources, and its liabilities, as well as its assessment of its employees’ needs and their ability to meet those needs outside the company. Although to some employees, throwing “religious beliefs” into that mix may feel like one variable too many, religious exemptions of generally applicable laws permitted by Burwell should not change much in the recruiting process. To the degree that it does introduce uncomfortable questions regarding religion, the same rules apply as applied before the Burwell decision came down.

Turn focus to the facts of the job requirements and job benefits, without looking to the personal belief systems of the two parties involved (employer and employee). Keep the discussion facts-based and closely drawn around the actual employment terms and not the personal philosophies that underlie those terms. Companies that keep this recruiting practice will be well protected from potential discrimination claims from applicants, whether the sky falls or whether (as expected) we see business-as-usual.

Burr & Forman LLP
www.burr.com

About the author: Gillian Watson Egan, is an attorney in the Mobile, Alabama, office of Burr & Forman LLP, where she focuses her practice on assisting clients in a variety of employment matterst. She can be reached at gegan@burr.com.