I supported RFRA for years. I am becoming a supporter of Smith. -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org
"Politics hates a vacuum. If it isn't filled with hope, someone will fill it with fear." Naomi Klein > On Aug 18, 2016, at 6:18 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > > Exactly, Eugene. The employer already has available to it the "alternative" > the judge creatively surmised. The employer himself didn't propose it, no > doubt because he would object to Stephens not wearing a tie (not to mention > other indicia of the fact that she's a woman, e.g., make-up), and to > requiring all other employee to wear the court's proposed unisex uniform. > > The employer's own proposed "less restrictive alternatives," on the other > hand, are the reductio ad absurdum examples that flow from Alito's > misbegotten reasoning in Hobby Lobby: > > Moreover, the government could employ other alternatives to ensure that > Stephens retains employment or the benefits of employment. For example, the > federal government could directly hire Stephens and allow Stephens to dress > however Stephens wants; the government could pay Stephens a full salary and > benefits from the time of Stephens’s discharge until Stephens acquires > comparable employment; or the government could provide incentives for other > employers (including, but not limited to, employers in the funeral industry) > to hire Stephens and allow Stephens to dress as a member of the opposite sex > on the job. See Hobby Lobby, 134 S. Ct. at 2780 (“[F]or the Government to > assume the cost of providing the four contraceptives at issue to any women > who were unable to obtain them . . . due to their employers’ religious > objections[] . . . would certainly be less restrictive of the plaintiffs’ > religious liberty”). With all of these alternatives available to the > government, the EEOC cannot meet RFRA’s least-restrictive means requirement > and thus cannot satisfy strict scrutiny. > > I wouldn't have even had the gall to put that on a law school exam, it's such > a ridiculous notion of what the statute requires (but not inconsistent with > Hobby Lobby!). > > I therefore agree that the LRM analysis in opinion is absurd. But so, I > think, is the "substantial burden" discussion. This is what we might expect > as a result of the complicity arguments proffered in the contraception cases: > Now, an employer argues with a straight face that his religion would > prohibit him from retaining an employee who wears a skirt, if that employee > was born with male reproductive organs, even if compelled to do so by law. > > What the contraception litigation has wrought . . . . > > On Thu, Aug 18, 2016 at 5:59 PM, Volokh, Eugene <vol...@law.ucla.edu > <mailto:vol...@law.ucla.edu>> wrote: > In today’s EEOC v. R.G. & G.R. Harris Funeral Homes, > http://www.politico.com/f/?id=00000156-9f0a-d073-a5d7-df9ef3920001 > <http://www.politico.com/f/?id=00000156-9f0a-d073-a5d7-df9ef3920001>, a > federal district court rejected a EEOC claim on RFRA grounds. I’m a bit > puzzled, though, by the court’s reasoning, and I wanted to ask what fellow > list members thought. > > > > 1. First, the facts: Harris Funeral Homes, 95% owned by Thomas Rost, has a > dress code: Men are to wear traditional male suits with neckties, while > women are to wear skirt-suits. (The district court concludes that this dress > code violates Title VII’s ban on sex discrimination.) Anthony Stephens > worked for several years for Harris Funeral Homes, but then began > transitioning to female, under the name of Amiee Stephens; when Harris > learned that Stephens was going to insist on wearing skirt-suits to work, > Harris fired Stephens. > > > > 2. The EEOC sued, claiming this was impermissible sex-stereotyping > discrimination under Price Waterhouse, because Stephens was fired for > insisting on wearing stereotypically female clothing. Rost argued that > requiring him to have the business represented by someone whom Rost believes > to be male wearing distinctively female clothing would violate Rost’s > religious beliefs: > > > > Rost believes “that the Bible teaches that God creates people male or > female.” He believes that “the Bible teaches that a person’s sex is an > immutable God-given gift and that people should not deny or attempt to change > their sex.” Rost believes that he “would be violating God’s commands” if he > were to permit one of the Funeral Home’s funeral directors “to deny their sex > while acting as a representative of [the Funeral Home]. This would violate > God’s commands because, among other reasons, [Rost] would be directly > involved in supporting the idea that sex is a changeable social construct > rather than an immutable God-given gift.” Rost believes that “the Bible > teaches that it is wrong for a biological male to deny his sex by dressing as > a woman.” Rost believes that he “would be violating God’s commands” if he > were to permit one of the Funeral Home’s biologically-male-born funeral > directors to wear the skirt-suit uniform for female directors while at work, > because Rost “would be directly involved in supporting the idea that sex is a > changeable social construct rather than an immutable God-given gift.” > > > > (Rost says that he doesn’t care what Stephens wears off-duty; Rost’s > objection is to what he perceives as Stephens’s cross-dressing while > representing Harris to customers.) > > > > 3. The court assumes without deciding that the EEOC has a compelling > interest in “protecting employees from gender stereotyping in the workplace.” > But it concludes that the EEOC hasn’t shown that its position is “the least > restrictive means of eliminating clothing gender stereotypes at the Funeral > Home under the facts and circumstances presented here.” In particular, the > court says, “couldn’t the EEOC propose a gender-neutral dress code > (dark-colored suit, consisting of a matching business jacket and pants, but > without a neck tie) as a reasonable accommodation that would be a less > restrictive means of furthering that goal under the facts presented here? > Both women and men wear professional-looking pants and pants-suits in the > workplace in this country, and do so across virtually all professions.” And > the court notes that this dress code would be “similar to the gender-neutral > pants, business suit jackets, and white shirts that the male 18 and female > Court Security Officers in this building wear.” > > > > 4. Now my question: Let’s say the court’s remedy is indeed compatible with > Rost’s religious beliefs. (Some people do believe that their religion > forbids women from wearing pants, but let’s assume that this isn’t Rost’s > view, and that he perceives pantsuits as suitable for both men and women who > are representing his business to the customers.) That might bear on what > injunction would be issued; but since the EEOC only asked for an injunction > “enjoining Defendant Employer, its officers, agents, servants, employees, > attorneys, and all persons in active concert or participation with them, from > engaging in any unlawful practice which discriminates against an employee or > applicant because of their sex, including on the basis of gender identity,” > that injunction wouldn’t even be violated by the court’s pants-and-jackets > alternative, right? > > > > And beyond that, the EEOC is seeking that Stephens be compensated for the > dismissal (as the court acknowledges, stressing that part of the burden on > Harris if liability is found would be “the economic consequences for the > Funeral Home could be severe – having to pay back and front pay to Stephens > in connection with this case”). How would the proposed new dress code serve > the EEOC’s interest in making sure that people who were discriminated against > based on sex stereotyping are compensated? After all, the EEOC wasn’t even > involved in the case when Stephens was dismissed. Rost had the opportunity, > if he wanted it, to implement the court’s proposed gender-neutral dress code, > but he didn’t take that opportunity. What bearing would this proposed new > dress code have on whether the EEOC should prevail in getting Stephens > compensation for an action that the court agrees was discriminatory – > enforcing the sex-based dress code (which, I note again, the court says is a > violation of Title VII under Sixth Circuit precedent and under Price > Waterhouse, despite Ninth Circuit precedent to the contrary)? > > > > I’d love to hear what people think, since I’ll be blogging on the case > shortly, and don’t want to get it wrong. Thanks, > > > > Eugene > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > <mailto:Religionlaw@lists.ucla.edu> > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > <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.
