Kim Davis v. We the People

Kim Davis Mugshot

Kim Davis Mugshot

For the past two weeks we’ve been hammered with the media spectacle surrounding the Kim Davis case. Whether you agree, disagree or simply can’t care less, one thing is almost certain: her case will rewrite Title VII, EEOC guidelines. What is she asking for? Reasonable accommodation based on her religious beliefs.

Title VII of the Civil Rights Act of 1964 protects workers from employment discrimination based on their race, color, religion, sex, national origin or protected activity. Within its language, it requires an employer or an entity covered under this law to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. And that means that an employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer (i.e., de minimis cost).

To better illustrate, take for instance the case Protos v. Volkswagen of America, Inc. in 1986. The plaintiff Angeline Protos was a member of a church that prohibited work during the Sabbath. Failure to observe the Sabbath was, in fact, cause for excommunication. Volkswagen assigned Protos mandatory overtime work on a significant number of Saturdays. Protos’s minister submitted a note to Volkswagen explaining that no exceptions existed for the prohibition on labor during the Sabbath. However, Volkswagen couldn’t give a damn and continued to schedule Protos to work on Saturdays. Protos, ever faithful to her religion, missed each shift. Needless to say, she was fired. In her suit she claimed that Volkswagen could accommodate her religious practice without undue hardship. The district court agreed and that, therefore, Volkswagen violated Title VII. That’s pretty much a slam-dunk, no-brainer.


On the other hand, take the case Webb v. City of Philadelphia in 2009. The plaintiff Kimberlie Webb, a practicing Muslim, worked as a police officer since 1995. After she converted in 2003, she requested permission to wear a headscarf or hijab while in uniform and on duty. The police department denied Webb’s request, but she showed up to work wearing the scarf anyway. She was charged with insubordination after being repeatedly asked to remove the hijab and was suspended for 13 days. Webb sued, alleging her religious practice should have been accommodated. The police department said it would be unreasonable for it to accommodate the scarf because police officers need to present themselves to the public as neutral officers of the state. The court agreed, also observing that there were no exceptions made for other religions, symbols or garb. This one isn’t such a slam-dunk. I’ll leave that argument to you.

Here’s the Catch-22: Title VII excludes elected officials. However, Kentucky rules by a state statute called Religious Freedom Restoration Act (RFRA) 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.” Let that confuse us not. The 2011 case of Harrell v. Donahue stated that, “at least as to federal employees, RFRA provided no protections beyond those offered by Title VII.”

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