The Eleventh Circuit's recent religious discrimination, religious
accommodation, and retaliation decision, Dixon v. The Hallmark
Services, http://www.ca11.uscourts.gov/opinions/ops/201010047.pdf does
not foreclose a reasonable accommodation claim or a disparate
treatment claim by an employee forced to remove religious objects from
her workspace; to the contrary, it held that the statement allegedly
made in conjunction with her discharge that she was too religious was
direct evidence of discriminatory intent, and that because management
was on notice of the conflict between her religious belief that she
must display religious objects in her workspace and its contrary
policy, it was obliged to consider a reasonable accommodation unless
granting one would cause undue hardship. The court reversed summary
judgment for the employer on both grounds, reasoning that the former
turned on the contested question of whether the statement that the
employee was too religious was actually made, and the latter on the
case by case and as yet undeveloped factual specifics of what is a
reasonable accommodation or an undue hardship.
Dixon did hold that neither Title VII nor the Fair Housing Act forbids
a private employer from establishing a "no religious symbols" policy,
and that an objection to such a policy therefore could not support an
opposition clause claim even though its application to an individual
employee with contrary religiously motivated practices could support a
reasonable accommodation claim.
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting Douglas Laycock <dlayc...@virginia.edu>:
It doesn't make sense to call religious truth claims offensive
(although that is common parlance), but it does make sense to say
that an employee who doesn't believe such a claim should not have to
display the claim or its symbols. The employee has a legitimate
interest in not appearing to promote what he considers to be a false
belief. And this interest should be well within the religious
accommodation protections of Title VII.
Except, apparently, in the Eleventh Circuit.
On Mon, 20 Dec 2010 11:47:20 -0500
Eric Rassbach <erassb...@becketfund.org> wrote:
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 Id 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 Sambos Restaurants, or the use of American Indian symbols, or
other things that might well be a part of company logos, displayed
on compa
ny
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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Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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_______________________________________________
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Please note that messages sent to this large list cannot be viewed as private.
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messages to others.