I took Alan's example re re Confederate flags etc. to be raising the issue of hostile work environment discrimination claims. Of course for such a claim to be successful, a lone requirement that employees display something offensive would not be enough; you'd have to show some other pattern of discrimination on the basis of the protected class at issue. (Wrt the Confederate flag example, it is certainly the case that a lot of businesses in the South display Confederate battle flags and require their employees to do so; though it is probably bars more than banks.)
I think a religious discrimination hostile work environment claim would be really hard to make out based on the display of one religion's symbol. Competing truth claims are a feature, not a bug, of religious life, so it doesn't make sense to call one group's truth claims or the symbols representing those truth claims "offensive" or discriminatory per se. ________________________________________ 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 10:33 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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.