The Ninth Circuit recently opened the door to a government employee’s challenge to the State’s practice of demanding that certain employees swear to uphold the State and Federal constitutions. Such a challenge could be grounded in either Title VII’s “failure to accommodate religion” or on State and Federal constitutional rights to the “free expression of religion.” In Bolden-Hardge v. Office of the Calif. State Controller, the Plaintiff, a Jehovah’s Witness, sued the State Controller after the State denied her request to modify the State’s loyalty oath in order to protect her strongly-held religious beliefs. As a Jehovah’s Witness, the Plaintiff believed she could not “‘swear primary allegiance to any human government’” over “‘the Kingdom of God’.” The devout Plaintiff, after refusing to comply with the State’s requirement that she swear primary allegiance to the constitutions, lost a job promotion. She sued the State Controller in Federal District Court. That Court sided with the State.
On appeal, the Ninth Circuit found the State’s form of oath required Plaintiff to swear her primary allegiance to the State and Federal constitutions, thus forcing her to choose between her religion and her public service career. This conflict created presumptive violations of Title VII, the California Fair Employment and Housing Act (“FEHA”), and the Free Exercise Clauses of the State and Federal constitutions. Both Title VII and FEHA require employers to “accommodate job applicants’ religious beliefs unless doing so would impose an undue hardship” on the institution or the institution can otherwise demonstrate the “business necessity” for the disparate impact on the employee. Additionally, the State and Federal constitutions guarantee the right of the people to the free exercise of religion.
Importantly, the Ninth Circuit explicitly recognized that the State might be able to raise defenses. The Ninth Court acknowledged the State’s position that “the oath is meant to ensure that public servants are committed to upholding the rule of law, supporting and defending the Federal and state constitutions, and promoting the proper functioning of government.” It further acknowledged that allowing an oath-taker to assert primary loyalty to God (rather than the rule of law) may “render the oath meaningless and undermine critical state interests.” The Ninth Court remanded the matter to the District Court to make a determination as to the State’s “undue hardship” and “business necessity” defenses.
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