Mike, I totally agree with the way you stated the issue -- it's the candidate's
ability to perform the essential requirements of the job, not their religion
that is the issue. Consequently, the employer need only ask: "Can you work
Saturdays?"
What is absent from this discussion, is the candidate's "bad faith" (no pun
intended), if not fraud, for failing to disclose upfront that she will not work
on Saturdays if offered the job notwithstanding the fact that the job
announcement stated that Saturday work is required. In my opinion, her lawsuit
should have been dismissed for failing state a claim upon which relief could
have been granted. To be eligible to equitable relief, a person must do equity.
I would also echo the remarks of another commenter that the notion that other
employees could be compelled to work on their regular Saturdays off to
accommodate another person's religious belief is perverse and unjust. After many
decades of being a strong believer in religious liberty, I've seen its dark
side. The religion clauses of the First Amendment do not require accommodation
-- at least where others are negatively impacted.
Best wishes, Bob Ritter
On July 27, 2012 at 10:16 PM Michael Masinter <masin...@nova.edu> wrote:
> Why, short of religious bias, would an employer ask about an
> applicant's religious observances or practices? Applicants may have
> many reasons for preferring not to work on Saturday, or Sunday, or
> whatever day is in question.
>
> An employer who wishes to ascertain whether an employee can perform
> essential job functions with or without reasonable accommodation can
> ask the applicant that question, provided it asks that question of all
> applicants and does not ask whether the applicant will require an
> accommodation. See, by analogy, the EEOC regulations governing
> pre-employment inquiries and disabilities, 29 CFR 1630.13, 1630.14,
> the associated interpretive guidance, and the Enforcement Guidance at
> http://www.eeoc.gov/policy/docs/preemp.html If an employee answers
> that he cannot, then the reason does not matter; he is not qualified.
> If the employee answers that he can, then the employer has no reason
> to ask how he will do so absent visible evidence to the contrary, and
> while that evidence may exist respecting a disability (an applicant
> with one leg who proposes to climb telephone poles), it is much less
> likely to exist respecting religious observances and practices.
>
> 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 "b...@jmcenter.org" <b...@jmcenter.org>:
>
> > Marc, you state: "no employer with any choice at all will hire such a
> > person"
> > and call it discrimination. If an applicant cannot fulfill the
> > responsibilities
> > of the job, the employer shouldn't hire the candidate. That's not
> > discrimination, rather its sound judgment. I'm sorry if the
> > idiosyncrasies of a
> > religion cause problems for its adherents, but those problems should harm
> > the
> > rest of society.
> >
> > Bob Ritter
> >
> >
> > On July 26, 2012 at 12:12 PM Marc Stern <ste...@ajc.org> wrote:
> >
> >> The District Court missed an obvious possible accommodation:
> >> swapping shifts
> >> voluntarily with other employees. in fact, cases very similar to
> >> this one get
> >> resolved by such swaps. See, eg, Myer v NYCTA, 674 NE2d 305 (1996). So not
> >> only did the courts ignore this possibility, but they added the
> >> charge of bad
> >> faith-which essentially means that Sababth observers are unwelcome in seven
> >> day a week, 24 hour a day job-an exclusion noticeably absent from
> >> the statute.
> >> It aslo suggests that, unlike for example, the handicapped, all job
> >> applicants requiring religious accommodation would have to disclose
> >> that fact
> >> up front. In practical terms, no employer with any choice at all will hire
> >> such a person. Proving that sort of employment discrimination is almost
> >> always impossible in individual cases
> >> Marc Stern.
> >> -----Original Message-----
> >> From: religionlaw-boun...@lists.ucla.edu
> >> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
> >> Sent: Friday, July 20, 2012 11:56
> >> To: religionlaw@lists.ucla.edu
> >> Subject: Re: Fouche V. NJ Transit
> >>
> >> The district court order in Fouche, reported at 2011 WL 2792450, seems
> >> unremarkable; the CBA was straightforward; a more senior driver returned to
> >> work, exercised his seniority rights not to work on Sunday, bumping Fouche
> >> into a Sunday assignment, and Fouche responded by not coming to
> >> work on Sunday
> >> rather than by working out, or even offering evidence that he could have
> >> worked out, a voluntary job swap with a more senior employee. The employer
> >> discharged him for nonattendance, he exercised his CBA rights and
> >> grieved his
> >> discharge; the employer first offered him reinstatement to part
> >> time work that
> >> would exempt him from Sunday driving as a reasonable accommodation, and he
> >> refused; it then reinstated him contingent upon passing a physical exam
> >> required of returning employees, and he refused to show up for his
> >> physical.
> >>
> >> Under Hardison, what plausible argument does Fouche have that 1) there was
> >> a
> >> reasonable accommodation other than part time work and that 2) the employer
> >> failed to offer it to him? And if the offer of part time work was a
> >> reasonable accommodation, isn't that offer sufficient, in and of itself, to
> >> discharge the obligation to offer a reasonable accommodation even
> >> if it is not
> >> the employee's preferred obligation?
> >>
> >> I agree that the panel should have omitted its gratuitous and
> >> improper comment
> >> about the employee's good faith, but its judgment -- affirming the district
> >> court -- seems correct. And given that unpublished
> >> non-precedential opinions
> >> don't establish circuit law, I don't think the court has created a new
> >> exemption from Title VII protection for religiously observant employees;
> >> rather, it has just reminded applicants for seven day a week jobs
> >> governed by
> >> a CBA that Hardison still controls.
> >>
> >> 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 Marc Stern <ste...@ajc.org>:
> >>
> >> >
> >> > An unpublished opinion of the Third Circuit in Fouche v.NJ Transit
> >> > (11-3031) portends excluding large classes of jobs from the
> >> > protection of Title VII.A full time driver sought to be
> >> > accommodated in not driving on Sunday. The employer claimed its
> >> > labor contract precluded accommodation; whether this is so, depends
> >> > on whether, for example, swaps were possible and from the bare bones
> >> > description of the facts given by the Court one cannot tell. But the
> >> > court went on to say that it doubted the good faith of the claimant
> >> > who applied for a job in a seven day a week employment situation when
> >> > he knew or should have known in advance of the conflict with his
> >> > religious requirements. Given the number of accommodations worked
> >> > out in such cases there is in any event no factual basis for this
> >> > doubt. Worse, the court's off-hand comment suggests that all
> >> > employers in need of seven day a week services
> >> > (e.g. police ,hospitals etc.) have a new , non-statutory,
> >> > unprecedented, defense in Title VII religious accommodation cases.
> >> > Marc Stern
> >> >
> >>
> >>
> >>
> >> _______________________________________________
> >> 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.
