In a 2-to-1 decision written by Judge Edward Prado, the Fifth Circuit Court of Appeals recently chimed in on an employee’s claim that her employer failed to accommodate a religious observance, for which “she believed strongly that she ‘needed’ to be at church . . . as a religious matter.” The court in Davis v. Fort Bend County overturned summary judgment where the district court had found that the employee’s absence on a Sunday to attend a ground breaking ceremony for her church was not a religious practice. As the district court found and Fort Bend County argued before the Fifth Circuit:

being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.

Instead, the majority opinion focused on the judiciary’s historical reluctance to delve too deeply into an individual’s professed religious belief:

This court has cautioned that judicial inquiry into the sincerity of a person’s religious belief “must be handled with a light touch, or judicial shyness.” . . “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” . . . Indeed, “the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.”

Judge Jerry Smith, politely, but vigorously disagreed with the court’s limited view:

In its well-written opinion, the majority errs in holding that our inquiry is limited to the sincerity of an employee’s alleged religious belief; we must also consider whether that belief is “religious” in nature or merely a personal preference or a secular social or economic philosophy.

Employers should not be surprised if this case is reheard en banc or perhaps reaches the Supreme Court of the United States. Perhaps, at least in the Fifth Circuit, the question of what qualifies as a religion will soon (if it has not already) be answered by Davis.