I always assumed, although I admit without much reflection, that the duty to accommodate operated in parallel to the duty not to discriminate. Thus, if a religious organization is exempted from the prohibition against religious discrimination, it is also exempt from any duty to accommodate. (Of course, many religious organizations do not discriminate on the basis of religion in hiring for many positions and do accommodate employees of others faiths to the extent that they can reasonably to do so.)
A commercial business like In-N-Out Burger is prohibited from discriminating on the basis of religion in hiring and is subject to a duty to accommodate. I don't know a lot about the division of labor in these kinds of fast food operations, but one possible accommodation for an employee whose religious beliefs precluded the distribution of religious messages of other faiths would be to transfer that individual to food preparation rather than distribution. I can imagine some commercial operations in which accommodations would be clearly impractical. If an non-Jewish employee accepts a job in a business that makes and sells menorahs, for example, it would be difficult to accommodate religious beliefs that prevent him from participating in the creation or distribution of items used in the religious rituals of other faiths. There is probably a continuum here. If that is correct, what belongs near the prohibited discrimination or required accommodation pole of the continuum. Eric, may a fast food employer require employees to wear uniforms that affirm "There is no God" or "Jesus Christ is my Lord and Savior" without accommodating religious employees who ask to be exempted from this requirement? Alan -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, December 20, 2010 5:09 PM To: Law & Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols Alan -- Does your analysis below apply equally to religious organizations and non-religious organizations? One example I think would be interesting in the latter category is In-N-Out Burger, which prints Bible references (e.g. "John 3:16") on every piece of food packaging. What sort of accommodation would an employee who had religious objections to the Bible references be entitled to? Although In-N-Out is clearly for-profit, it also has at least some religious purposes. Eric ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu] Sent: Monday, December 20, 2010 2:26 PM To: Law & Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols I think Doug is correct that there is a religious accommodation claim here. Maybe there is a hostile work environment argument as well. But I was thinking of a claim that falls somewhere in between these two conventional frameworks. I have no problem with Erik's comment that competing truth claims of different religions are not intrinsically offensive to members of other faiths. Of course, some religious truth claims are offensive to members of other faiths, see e.g., anti-Catholic and anti-Jewish religious statements by some clergy of other faiths which were fairly common in years past. But let's put that issue aside. It isn't clear to me that discriminatory conduct has to communicate an invidious message. An employer may not intend to communicate an offensive message if he requires employees to display religious symbols on their desk (or uniforms) that communicate a message that is starkly inconsistent with the beliefs of other faiths. If it is common knowledge, and the employer knows, that overwhelmingly the members of other faiths would find that to be an unacceptable condition of employment, I think that one may argue that this a discriminatory work requirement. Wouldn't a requirement that everyone has to display a sign stating "There is no God" on their desk discriminate against religious employees -- or a sign saying "Jesus Christ is my Lord and Savior" discriminate against non-Christian employees? The requirement may not be unacceptable to all members of other faiths -- but that is true for hostile work environments and religious accommodation claims as well. The issue arises in a different form and context in Charitable Choice legislation where it is sometimes suggested that the refusal to hire employees of faiths other than the faith of the religious employer is not religious discrimination because it is not intended to communicate an invidious message. I think that view is mistaken as well. 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.
