Alan - Great questions!
In the particular case of In-N-Out I would imagine that forcing the chain to take the Bible references off the burger wrappers would create an undue hardship, either because it would be too difficult to change all of the wrappers, or because it undermines the brand since the Bible references are part of In-N-Out popular lore. Thus the only possible accommodation would be a change in duties, as Alan suggests, which probably would not be too hard given the skill levels of the workers. With T-shirts/uniforms, perhaps it has to do with the image of the corporation, i.e. is the objected-to speech part of its corporate "message"? It would be one thing if McDonald's were taken private and the following day new management asked every employee to wear uniforms stating "Jesus is Lord" or "God is Dead". It would be another if say a for-profit Christian bookstore requires employees to wear T-shirts stating "Jesus is the Reason for the Season" during November and December. It seems to me that the bookstore would have a good argument that allowing an opt-out for an employee dealing with the public might cause an undue hardship by disrupting its brand identity, which is important for selling books. (Btw, I have absolutely no idea whether this sort of brand identity argument has ever been made in the Title VII caselaw.) However, the problem might again be alleviated by allowing a change in duties, i.e. not dealing with the customers. It also seems like the brand identity argument would be stronger the closer the company is to a uniform, franchise model, where every single detail of the operation is considered part of the brand experience. So the more bohemian the bookstore, the less brand identity it could claim. It would also be interesting to see whether a non-profit bookstore would have a better claim; I suspect it would though I am not sure that there would be a very principled reason for it. The converse situation also makes for an interesting hypothetical. Say a religious (or militantly agnostic) person goes to work for Freedom From Religion Foundation and refused a requirement to wear their "Village Atheist" t-shirt while working in the FFRF bookstore: http://www.ffrf.org/shop/t-shirts/new-village-atheist/. [Btw, I can't help but think that this is some sort of allusion to the popular GW Bush bumper sticker.] Presumably FFRF could make the same argument as the Christian bookstore--it would harm its brand identity for employees who deal with the public to opt out of wearing the Village Atheist T-shirts. I think Eugene may have been making a similar point with respect to the Las Cruces logo, as it is part of the brand of the city. Eric ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu] Sent: Tuesday, December 21, 2010 5:06 PM To: Law & Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols I agree with Michael for the most part and certainly with his statement that expressions of religious faith are not analogous to expressions of racial subordination. But I'm not sure if he is suggesting that there is a difference between a uniform that stated "I am not a Pentecostal" and a uniform that stated "I am a Pentecostal." If everyone wears the latter statement on their uniform, I would think the clear message is that no members of other faiths or non-believers work for that employer and that prospective employees who are unwilling to make such an affirmation should not apply for employment. I agree that religious statements expressing other messages may be much less problematic and indicative of discrimination and that requesting an accommodation is an easier route to pursue. Alan -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Tuesday, December 21, 2010 1:47 PM To: religionlaw@lists.ucla.edu Subject: RE: Federal regulators apparently force bank to take down religioussymbols 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 >> > >> >> > _______________________________________________ > 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. > _______________________________________________ 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. _______________________________________________ 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. _______________________________________________ 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.
