Religious Revival in the Workplace 2026: Changing Challenges

Few topics in employment discrimination law have created more conceptual controversy in the past 10 years than the dramatic change in law and theory affecting religious discrimination. 

A dozen U.S. Supreme Court cases during this period have rearranged the concepts underlying religious discrimination and expression both in theory and in practice. Religion-based challenges to COVID-19 mandates have broadly expanded what is a qualifying religious belief. Decades-old rulings on the intersection between the establishment and free exercise clauses have been revisited, and in many cases rewritten. 

Religiously driven secular laws have gained traction because of recent rulings, including Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade (1973). This article will summarize some of the conceptual drivers of these changes. 

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The Old Paradigm

This story is about the clash of two bedrock principles of constitutional doctrine: The protection of individual religious expression versus the duty of nondiscrimination imposed by Title VII and the equal protection clause. 

As a general proposition, until recently, these broad concepts often subordinated individual rights of free expression to the general principles of nondiscrimination and neutrality. Under the old paradigm the idea of protecting religious expression was thought of as meaning that the employer could not discriminate in favor of one religion over another, but that it could limit broadly religious expression in the workplace so long as the limit applied equally to all religions.

Similarly, it could create and enforce rules of behavior and nondiscrimination in the workplace applicable to all employees, even those who disagreed with the rules on religious grounds. 

To understand how broadly the old paradigm reached, consider a summary of rulings under the old paradigm, in which individual religious interests were subordinate to concepts of neutrality and nondiscrimination. Under the old paradigm: 

• Establishment clause concerns were paramount in public sector cases over free exercise rights. This meant public employers could broadly ban religious displays and expressions in the workplace, except small group gatherings on employee time. 
• Religious concerns of business owners were subordinate to duties not to discriminate against others under benefits and public accommodation laws.
• People with religious objections to employer policies or to doing certain parts of their job generally lost their claims if they refused to do their jobs.

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The New Paradigm

During the past 10 years, the primacy of the neutrality and nondiscrimination principle over the right of free expression has literally been turned upside down. For decades many members of the Supreme Court expressed concerns that free exercise should be given much greater protection in the balance of rights. The old view was that religion should be treated just like other Title VII categories. This limited view of religious rights, to the court, failed to take into account that religion is different than other Title VII categories, in that the First Amendment protects free exercise of any religion, or religious rights, and not merely nondiscrimination between religious beliefs. 

As a consequence, a new paradigm or ranking of rights has emerged. Here are some examples to illustrate this dramatic change: 

• Privately owned corporations whose owners adhere to a particular religious belief may be deemed themselves to have religious rights of expression, and seemingly may conduct training, communications, and marketing with a religious or proselytizing objective in mind. 
• Public school coaches who conducted religious prayer meetings on the field before and after games previously could be forbidden to do so on the theory that their behavior gave the impression of public endorsement of religious practices. Now coaches are free to practice their beliefs in this public way, despite the principle of public employer neutrality.
• Religious organizations may now be eligible to receive public money in public bid programs notwithstanding that they practice exclusionary teachings antithetical to discrimination laws. To make them automatically ineligible is now thought to be anti-religious discrimination against them under the free exercise clause, rather than a permissible requirement of a commitment to nondiscrimination. 
• Religious concerns of business owners are likely no longer subordinated to duties not to discriminate against others, when their religious beliefs do not agree with the lifestyle or behavior of patrons. Under several new cases, owners of businesses that heretofore had to accommodate all patrons regardless of beliefs, now appear to be free to refuse service to patrons whose beliefs or lifestyles are offensive to the business owners’ personal beliefs.

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What Does This All Mean?

As part of this shift the Supreme Court has rewritten the rules on the duty to accommodate employees who express a religious objection to an employer practice, policy, or rule. The federal enforcement agencies also have adopted new approaches on accommodating religious beliefs in the workplace. Major enforcement actions have been brought against large employers asserting embedded antisemitism or other practices impinging on religious rights. 

An upcoming article will explain the specific accommodations now being required by federal regulators and the kinds of lawsuits being brought to give you recommendations on how to meet these new challenges. 

Richard A. Paul, a retired attorney with Quarles and Brady in San Diego, is practice professor of employment and labor law at the University of San Diego Law School and a mediator, West Coast Resolution Group. He is also a speaker at LEAP Employment Law Conference, In Partnership With SHRM, which will be held on March 31-April 2, 2027, in Las Vegas.