Alan's examples of uniform language expressing racial discrimination
or hostility seem more than sufficient to establish a conventional
disparate treatment claim since the evident purpose and effect of the
language is to discourage African-Americans from working for the
employer. Similarly, an employer who required employees to wear a
uniform that said "No Jews work here" or "I am not a Pentecostal"
should expect to incur disparate treatment liability for religious
discrimination.
Perhaps the employer who requires his employees to display a religious
message also intends to discourage members who do not share that faith
from working for him; if so, the employer is indeed liable for
disparate treatment. But I would not be so quick to draw that
inference from a more positive religious message; expressions of
religious faith generally are not analogous to expressions of racial
subordination. In the event, if I am a Jewish employee who objects to
wearing an expression of Christian faith as a burger joint employee, I
don't have to prove that the purpose of the message is religious
subordination; all I have to do is request an accommodation. 701(j)
eliminates the need to identify either the purpose or likely effect
employees and applicants of a religious message; all the objector
needs is a sincere religious objection to its expression in
circumstances that permit a reasonable accommodation.
Mike
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 "Brownstein, Alan" <aebrownst...@ucdavis.edu>:
I don't know enough about employment discrimination law to discuss
whether there is any case law to support my analysis (certainly
Michael is far more knowledgeable in this area of law than I am).
But as a normative manner, I would argue that a work requirement
that in essence tells employees to publicly disclaim their faith
discriminates on the basis of religion. The uniform requirements I
mentioned in my last post would fit that description. If we were
discussing race discrimination, I would probably argue that
requiring all employees to wear uniforms that state "No
African-Americans work here," or "I am not an African-American"
would also be discriminatory. Since there is no duty to accommodate
with regard to race, I assume those who disagree would have to argue
that these requirements do not constitute race discrimination. I
find that conclusion troubling.
As for the other questions, requiring an employee to drive a truck
with a sign on it that is generally understood to communicate the
employer's religious message might invoke a duty to accommodate --
but I would anticipate that the accommodation would result in a
change in the employee's duties -- not the covering of the sign. If
an employee works for a company that produces or distributes
products to be used for religious rituals, wine for Passover,
candles for religious services , and other products -- most requests
for accommodation will constitute an undue hardship on the employer.
Alan
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh,
Eugene
Sent: Tuesday, December 21, 2010 11:19 AM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols
I appreciate Michael's thoughtful and detailed response. But it
sounds like his approach, then, is different from Alan's, since Alan
apparently would treat some such cases as disparate treatment cases
(yes?). If so, Alan, what would you think about the Las Cruces,
Mogen David, or "There Is No God" on uniforms, cars, burger
wrappers, and so on?
Eugene
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Tuesday, December 21, 2010 11:12 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols
As always, Eugene asks good questions.
Religious discrimination claims can take several forms -- disparate
treatment, failure to accommodate, and in addition harassment and
disparate impact.
I am not familiar with any case that treats an employer's mandated
expression of religious (dis)belief as disparate treatment since such
a rule, uniformly applied to all similarly situated employees, would
be disparate treatment only if it were adopted for the purpose of
discouraging employees or applicants of a particular faith from
applying or continuing to work. So I would expect any claim relating
to compelled expression to arise as a reasonable accommodation claim.
I suppose compelled expression could be part of a religious harassment
claim, but religious harassment claims are rare given the high burden
(severe or pervasive) that claimants face. Facing that higher burden,
a sensible employee or her lawyer would surely prefer a reasonable
accommodation claim. Disparate impact claims raise even more
difficult issues respecting classwide impact and preclude recovery of
damages, so I wouldn't expect to see one of those either.
My sense is that neither the Las Cruces employee nor the Mogen David
employee is entitled to an accommodation relating to vehicles or
stationery. The city seal and Mogen David emblem identify the
employer; since no reasonable observer would see them as the compelled
expression of belief, I'd expect a court to hold that requiring the
employer to forego their use at the request of a religious believer
would impose an undue hardship on the conduct of the employer's
business.
It's worth noting that section 702(a) of Title VII exempts religious
corporations, associations, and societies from the prohibition against
religious discrimination, and therefore from any duty of religious
accommodation. Although courts have struggled to work out a standard
for identifying employers entitled to the religious corporation
exemption that is both faithful to the intent of its drafters and
consistent with the establishment clause, all of the competing
standards impose a de facto requirement that the employer be organized
as a not for profit business even while insisting that the form of the
organization is only part of the analysis. Townley Engineering lost
on its claim to a religious corporation exemption for precisely that
reason.
Mike
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 "Volokh, Eugene" <vol...@law.ucla.edu>:
> Michael: How religious does the statement have to be before
> requiring it becomes religious discrimination (which is per se
> forbidden, unless religion is treated as a BFOQ, a high bar) as
> opposed to absence of religious accommodation (which may be
> permissible, if an accommodation is an undue hardship)?
>
> Say, for instance, that someone who drives around in Las Cruces,
> N.M., city cars insists on taping over the city seal (which is
> mainly three crosses), or insists on crossing out the crosses on any
> city stationery that he uses. Should he be allowed to do that?
> What if he does delivery for Mogen David Wine Corporation (which I
> take it doesn't qualify for the religious entity exemption under
> Title VII), and wants to tape over the Mogen David itself on the
> trucks? The list could go on.
>
> Eugene
>
>>
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