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
>> >
>>
>>
>>
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