I suppose the other issue is the effect of a nondiscrimination statute in causing a kind of censorship by a business (prohibiting employees from engaging in speech) in response to a concern about liabiility under the statute. Perhaps the 1st Am. requires that the government clarify that protected speech is not a basis for liability, in order to avoid the chilling effect created by the statute.
On the other hand, to the extent that speech promotes or constitutes illegal discrimination in the context of a commercial transaction, the chilling effect of the statute presumably is not a basis for complaint. Mark Scarberry Pepperdine ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, December 20, 2010 7:33 AM To: Law & Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols Alan: Can you flesh out the discrimination theory more? I take it that the claim is that requiring everyone to display something would constitute discrimination (not just failure to accommodate religious beliefs, or creation of an allegedly hostile environment), and that this would trigger a requirement of exemption even outside the context of religious discrimination, where such exemption is statutorily required – is that right? It seems like an odd sort of discrimination claim, but I’d like to hear more about it. (I take it that this would practically be of some more importance because some companies include in their corporate symbols items that some people may find offensive based on membership in various groups, whether the symbols are religious, allegedly racially offensive, and so on – consider the litigation over Sambo’s Restaurants, or the use of American Indian symbols, or other things that might well be a part of company logos, displayed on company vehicles, and so on.) By the way, some jurisdictions ban discrimination based on political affiliation, and of course government entities are generally barred by the First Amendment from certain kinds of discrimination based on political affiliation. Would requiring all employees to display company symbols that are opposed by one or another political party constitute forbidden political affiliation discrimination? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Friday, December 17, 2010 4:36 PM To: Law & Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols Do you think there is a discrimination issue as well as an accommodation issue in cases like this, Eugene. Suppose a bank in a southern state insists that all employees have confederate flags on their desks or work stations? Does an African-American employee have a claim under Title VII? What about displays that proclaim the superiority or virtue of the “white” race? Alan
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