In considering contemporary conflicts between religious freedom and equality law, a mediating principle has proved to be important, namely the rule that governments granting religious accommodations to some citizens should avoid harm to others. Normally, when government lifts regulatory burdens on religious actors, any associated costs are covered by the government itself, or by the public. But sometimes, the costs of religious accommodations are shifted to other private citizens. And when that happens, constitutional concerns arise. Recently, the rule against third party harms has come up in conflicts over reproductive freedom for women, marriage equality, and civil rights for LGBT citizens.

Critics of the rule against harm to others have argued, among other things, that third-party harms cannot always render religious accommodations unconstitutional, because many exemptions have negative effects on others. An absolute bar on third party harms would generate absurd results, cutting against both established precedents and our considered convictions.

In this chapter, we acknowledge that there are some situations where the interference with religious freedom is so significant, and the countervailing burden on others so slight, that accommodations ought to be upheld despite some harm to third parties. But if the principle of avoiding harm to others is not absolute, that raises a crucial question: How much burden-shifting to third parties is constitutionally permissible?

Our answer is that a promising model can be found in employment discrimination law. Title VII, the main federal statute prohibiting discrimination against workers, contains a provision that requires employers to reasonably accommodate the religious observances of their employees. But there are limits. Title VII does not require employers to accommodate religious employees if that would impose “undue hardship” on the employer.

We think the undue hardship standard provides an attractive model for limiting the principle against shifting harm to third parties. First, federal courts have interpreted the standard against the background of serious Establishment Clause concerns. Second, lower courts have applied the standard over many decades to reach results that are sensible, overall. Although the undue hardship standard has been confined to employment law, we suggest that it could provide useful guidance in other contexts involving claims for religious accommodations that have harmful effects on others. 

Richard C. Schragger, Micah J. Schwartzman & Nelson Tebbe, How Much May Religious Accommodations Burden Others, in Law, Religion, and Health in the United States, Cambridge University Press, 215–229 (2017).