Re: Same Sex Marriage in Scotland
Hard to tell what they are proposing from this brief description. One possibility is that even if a denomination performs same-sex marriages, an individual pastor of that denomination who refuses cannot be penalized by the government. The government cannot regulate the individual pastor based on his denominational teaching. That is surely right. The other possibility is that the government will protect the dissenting pastor from being penalized by his denomination. That is clearly an unjustified interference in internal church governance. In the United States, I think it would be unconstitutional under Hosanna-Tabor v. EEOC. On Thu, 26 Jul 2012 10:52:42 +0100 Scot Peterson scotmpeter...@gmail.com wrote: Dear all, I normally just lurk on this list, but I had a question that people might help me out with. Yesterday, the Scottish government announced that it will bring in a bill for same-sex marriage, including religious marriage, with religious denominations and faiths having the ability to refuse to perform same-sex marriages. The troubling statement by the government is this one: [O]ur view is that to give certainty on protection for individual celebrants taking a different view from a religious body that does agree to conduct same sex marriages, an amendment will be required to the UK Equality Act. Seemingly, the Scottish government wants to provide an opt-out for individual clergy even if their denomination decides to authorise solemnisation of SSM and doesn't itself offer such an opt-out. One way of thinking about this is that they are authorising individual clergy to provide SSM, but they don't want to force anyone to have to act in this way on behalf of the government. A more historical (and stricter religious freedom) argument, which I think may be right is that this is unwarranted tampering with the internal governance of the religious organisation. (I think here of the Disruption of the Church of Scotland, which came about in 1843 when the government forced clergy into posts over the veto of the congregation; a situation that was supposedly rectified following passage of the Church of Scotland Act, 1921). I haven't read Robin Fretwell Wilson (et al.)'s work on SSM and religious freedom, but I'm betting that some of you have strong opinions on this one way or the other, and I would be very interested to know what they are. I would be particularly interested in what people thought might happen under the European Convention on Human Rights (my bet is that that court would just authorise whatever the legislature decided on). All best, Scot Peterson University of Oxford Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
FW: Fouche V. NJ Transit
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.edu954.262.3835 (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
RE: Same Sex Marriage in Scotland
I think the problem is that currently the UK Equality Act creates a conscience exemption only where necessary to comply with the doctrine of a religious organization or to avoid conflict with the strongly held religious convictions of a significant number of the followers of the religion or belief. That would not cover the clergyman who disagrees with the majority view of his denomination. See http://religionclause.blogspot.com/2012/07/scottish-government-will-move-ahead.html for some additional information. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock Sent: Thu 7/26/2012 11:11 AM To: Law Religion issues for Law Academics; Scot Peterson Subject: Re: Same Sex Marriage in Scotland Hard to tell what they are proposing from this brief description. One possibility is that even if a denomination performs same-sex marriages, an individual pastor of that denomination who refuses cannot be penalized by the government. The government cannot regulate the individual pastor based on his denominational teaching. That is surely right. The other possibility is that the government will protect the dissenting pastor from being penalized by his denomination. That is clearly an unjustified interference in internal church governance. In the United States, I think it would be unconstitutional under Hosanna-Tabor v. EEOC. On Thu, 26 Jul 2012 10:52:42 +0100 Scot Peterson scotmpeter...@gmail.com wrote: Dear all, I normally just lurk on this list, but I had a question that people might help me out with. Yesterday, the Scottish government announced that it will bring in a bill for same-sex marriage, including religious marriage, with religious denominations and faiths having the ability to refuse to perform same-sex marriages. The troubling statement by the government is this one: [O]ur view is that to give certainty on protection for individual celebrants taking a different view from a religious body that does agree to conduct same sex marriages, an amendment will be required to the UK Equality Act. Seemingly, the Scottish government wants to provide an opt-out for individual clergy even if their denomination decides to authorise solemnisation of SSM and doesn't itself offer such an opt-out. One way of thinking about this is that they are authorising individual clergy to provide SSM, but they don't want to force anyone to have to act in this way on behalf of the government. A more historical (and stricter religious freedom) argument, which I think may be right is that this is unwarranted tampering with the internal governance of the religious organisation. (I think here of the Disruption of the Church of Scotland, which came about in 1843 when the government forced clergy into posts over the veto of the congregation; a situation that was supposedly rectified following passage of the Church of Scotland Act, 1921). I haven't read Robin Fretwell Wilson (et al.)'s work on SSM and religious freedom, but I'm betting that some of you have strong opinions on this one way or the other, and I would be very interested to know what they are. I would be particularly interested in what people thought might happen under the European Convention on Human Rights (my bet is that that court would just authorise whatever the legislature decided on). All best, Scot Peterson University of Oxford Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
Re: FW: Fouche V. NJ Transit
Marc, I previously characterized the panel discussion of Fouche's good faith as improper; I did so because I agree that an employee has no obligation to disclose his religious beliefs (or his disability) when applying for a job. But I am not convinced the court erred on the merits for two reasons. First, I doubt Fouche's religious observances and practices precluded him from giving his employer the required four hour advance notice, or failing that, notice within four hours after his shift ends, that he would be absent from work. Such notice accompanied by an explanation of his reason (religious observance) would have triggered a duty to accommodate that the employer could have discharged by offering to permit a voluntary shift swap. Second, Fouche did not seek permission for a voluntary shift swap; he sought a blanket exemption from sabbath work, and Hardison puts that beyond his reach. Perhaps the district court misstated the facts, but on the facts as it presented them, its ruling still seems sound. But you are right respecting the discussion of good faith; the court should never have suggested that sabbatarian observers are obliged to refrain from applying for employment that might conflict with their observances. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Marc Stern ste...@ajc.org: 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.edu954.262.3835 (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
Re: FW: Fouche V. NJ Transit
The Court rejected the argument that the employee has a duty to disclose his religion, and then not to change it, in Hobbie v. Unemployment Appeals Comm'n (1986 or 87). That was a constitutional case, not a Title VII case. On Thu, 26 Jul 2012 16:31:01 -0400 Michael Masinter masin...@nova.edu wrote: Marc, I previously characterized the panel discussion of Fouche's good faith as improper; I did so because I agree that an employee has no obligation to disclose his religious beliefs (or his disability) when applying for a job. But I am not convinced the court erred on the merits for two reasons. First, I doubt Fouche's religious observances and practices precluded him from giving his employer the required four hour advance notice, or failing that, notice within four hours after his shift ends, that he would be absent from work. Such notice accompanied by an explanation of his reason (religious observance) would have triggered a duty to accommodate that the employer could have discharged by offering to permit a voluntary shift swap. Second, Fouche did not seek permission for a voluntary shift swap; he sought a blanket exemption from sabbath work, and Hardison puts that beyond his reach. Perhaps the district court misstated the facts, but on the facts as it presented them, its ruling still seems sound. But you are right respecting the discussion of good faith; the court should never have suggested that sabbatarian observers are obliged to refrain from applying for employment that might conflict with their observances. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: Reaasonable acccommodations and Observant Sabbatarians
One problem in cases like this one is that the accommodation the religious employee seeks has considerable secular value to both nonreligious and religious individuals (what I have called surplus secular value) in addition to it being necessary to the religious employee's exercise of her faith. A fair accommodation in this circumstance would recognize that value and allocate it at least in part to the employees who would lose weekend time off in order to provide the religious employee the opportunity to observe the Sabbath. This Sixth Circuit decision apparently ignores the cost to co-workers created by granting the sought after accommodation entirely unless the employer can prove that it would internalize those costs. The logic of Establishment Clause cases monitoring religious accommodations that go too far in benefiting religious individuals at the expense of third parties suggests that this is a problematic construction of Title VII. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Wednesday, July 25, 2012 7:40 AM To: religionlaw@lists.ucla.edu Subject: Reaasonable acccommodations and Observant Sabbatarians Does an employer's duty to reasonably accommodate the work scheduling needs of a sabbatarian employee include compelling objecting coworkers to accept involuntary shift reassignments requiring additional weekend work in the absence of a formal seniority system? Perhaps, says a split panel of the sixth circuit in an unpublished decision, splitting with two other circuits in Crider v. University of Tennessee, http://www.ca6.uscourts.gov/opinions.pdf/12a0800n-06.pdf Ms. Crider was hired as the third of three university employees whose core job responsibilities included monitoring a portable emergency cell phone through which study abroad students could reach the university in an emergency at any time. The university required the phone to be monitored at all times; the two employees who previously had assumed that responsibility by working alternate seven day shifts objected to the burden of working every other weekend, and the university sought to hire a third employee to spread the weekend workload. Ms. Crider, a Seventh Day Adventist, applied for and accepted the job knowing of the scheduling requirements, but, consistent with her religious observances and practices, informed the university four days after she was hired that she would not work, including answer the phone, from sundown Friday through sundown Saturday. Ms. Crider was unable to work out a voluntary shift swap with either of her two coworkers. After two months of unsu! ccessful attempts to resolve the scheduling dispute, including a threat by one coworker to resign if forced to again work every other weekend, the university discharged Ms. Crider, and she sued, asserting that it had violated Title VII by failing to reasonably accommodate her. The trial court granted summary judgment to the university, and in a 2-1 decision, the sixth circuit reversed, with the panel splitting over whether TWA v. Hardison foreclosed involuntary shift reassignments of coworkers to additional weekend work as a reasonable accommodation. The majority reasoned: Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation without undue hardship on the conduct of the employer's business. To show that an involuntary shift assignment would impose an undue hardship on an employer, the majority, relying on pre-Hardison circuit precedent, held that the employer was required to prove that involuntary reassignment would create a chaotic personnel problem rather than dissatisfaction among coworkers, and to do so, the university could not rely on the repeated threats by one of the two coworkers to resign since, per the panel, [t]he University provided nothing to show that Meador's threat was more than mere grumbling. The dissent argued that the involuntary reassignment to accommodate Crider would be discrimination against Meador and Rost in violation of Title VII and that in any event, the personnel problems arising from an involuntary reassignment of weekend work to the two remaining coworkers was more than an abstract burden on the employer. Should Title VII be construed to require an employer to compel objecting employees to work weekends to accommodate a coworker in the absence of a seniority system? Presumably an employer could not compel another religiously observant coworker to accept a reassignment that violated that employee's religious observances and practices, so does the majority's ruling require the employer to engage in religious discrimination by only reassigning employees who religious observances and practices do not foreclose weekend work? If so, what protection does Title VII offer to sabbatarian
