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A Test of Faith: Accommodating Religious Employees' "Work Related Misconduct" in the United States and Canada

15 Comp. Lab. L. 250

Winter 1994

Authors: Andrew M. Zeitlin

What is the relationship between freedom of religion and unemployment compensation? On five separate occasions over the past thirty-five years, most recently in the 1990 decision, Employment Division v. Smith, the United States Supreme Court has confronted cases involving the intersection of these two issues. The matter emerges when an employee, terminated for engaging in religious conduct, is denied unemployment compensation. What free exercise rights do religious observers retain in the workplace? How much accommodation is required of the government?

In this Comment, Andrew Zeitlin examines and evaluates many facets of this problem: the approaches courts in the United States have taken in freedom of religion cases generally and unemployment compensation cases specifically; the approach Canadian courts have taken in freedom of religion cases and the approach they would likely take in the context of unemployment compensation cases; the unemployment compensation systems in the two countries; and the statutory and constitutional responses to judicial action undertaken to accommodate religious freedom in both countries. The potential application of the Canadian approach to accommodating employees' freedom of religion in the United States is considered in the final section.

Reprinted with permission from the Comparative Labor Law & Policy Journal. Copyright (c) 1994.

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