The Eleventh Circuit says nothing on that score, though the question is obvious. I think the reason it did not-aside from the obvious possibility that appellants may not have raised it-is that the court is so hell bent on limiting retaliation claims that if a claim is not meritorious on its face -as accommodation claims are often not-there is no retaliation claim. Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022
ste...@ajc.org 212.891.1480 646.287.2606 (cell) -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, December 20, 2010 02:04 To: Law & Religion issues for Law Academics; Michael Masinter Subject: Re: Federal regulators apparently force bank to takedown religioussymbols Thanks Michael. I obviously have not read the opinion. But if the employee has a claim for the employer's refusal to accomodate her, why doesn't she have a retaliation claim for opposing its refusal to accommodate her? On Mon, 20 Dec 2010 13:34:16 -0500 Michael Masinter <masin...@nova.edu> wrote: >The Eleventh Circuit's recent religious discrimination, religious accommodation, and retaliation decision, Dixon v. The Hallmark Services, http://www.ca11.uscourts.gov/opinions/ops/201010047.pdf does not foreclose a reasonable accommodation claim or a disparate treatment claim by an employee forced to remove religious objects from her workspace; to the contrary, it held that the statement allegedly made in conjunction with her discharge that she was too religious was direct evidence of discriminatory intent, and that because management was on notice of the conflict between her religious belief that she must display religious objects in her workspace and its contrary policy, it was obliged to consider a reasonable accommodation unless granting one would cause undue hardship. The court reversed summary judgment for the employer on both grounds, reasoning that the former turned on the contested question of whether the statement that the employee was too religious was >actually made, and the latter on the case by case and as yet undeveloped factual specifics of what is a reasonable accommodation or an undue hardship. > >Dixon did hold that neither Title VII nor the Fair Housing Act forbids a private employer from establishing a "no religious symbols" policy, and that an objection to such a policy therefore could not support an opposition clause claim even though its application to an individual employee with contrary religiously motivated practices could support a reasonable accommodation claim. > > >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 Douglas Laycock <dlayc...@virginia.edu>: > >> It doesn't make sense to call religious truth claims offensive (although that is common parlance), but it does make sense to say that an employee who doesn't believe such a claim should not have to display the claim or its symbols. The employee has a legitimate interest in not appearing to promote what he considers to be a false belief. And this interest should be well within the religious accommodation protections of Title VII. >> >> Except, apparently, in the Eleventh Circuit. >> >> On Mon, 20 Dec 2010 11:47:20 -0500 >> Eric Rassbach <erassb...@becketfund.org> wrote: >>> >>> I took Alan's example re re Confederate flags etc. to be raising the issue of hostile work environment discrimination claims. Of course for such a claim to be successful, a lone requirement that employees display something offensive would not be enough; you'd have to show some other pattern of discrimination on the basis of the protected class at issue. (Wrt the Confederate flag example, it is certainly the case that a lot of businesses in the South display Confederate battle flags and require their employees to do so; though it is probably bars more than banks.) >>> >>> I think a religious discrimination hostile work environment claim would be really hard to make out based on the display of one religion's symbol. Competing truth claims are a feature, not a bug, of religious life, so it doesn't make sense to call one group's truth claims or the symbols representing those truth claims "offensive" or discriminatory per se. >>> >>> >>> ________________________________________ >>> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] >>> Sent: Monday, December 20, 2010 10:33 AM >>> To: Law & Religion issues for Law Academics >>> Subject: RE: Federal regulators apparently force bank to take down religioussymbols >>> >>> Alan: Can you flesh out the discrimination theory more? I take it that the claim is that requiring everyone to display something would constitute discrimination (not just failure to accommodate religious beliefs, or creation of an allegedly hostile environment), and that this would trigger a requirement of exemption even outside the context of religious discrimination, where such exemption is statutorily required - is that right? It seems like an odd sort of discrimination claim, but I'd like to hear more about it. (I take it that this would practically be of some more importance because some companies include in their corporate symbols items that some people may find offensive based on membership in various groups, whether the symbols are religious, allegedly racially offensive, and so on - consider the litigation over Sambo's Restaurants, or the use of American Indian symbols, or other things that might well be a part of company logos, di splayed > on compa >> ny >>> vehicles, and so on.) >>> >>> By the way, some jurisdictions ban discrimination based on political affiliation, and of course government entities are generally barred by the First Amendment from certain kinds of discrimination based on political affiliation. Would requiring all employees to display company symbols that are opposed by one or another political party constitute forbidden political affiliation discrimination? >>> >>> Eugene >>> >>> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan >>> Sent: Friday, December 17, 2010 4:36 PM >>> To: Law & Religion issues for Law Academics >>> Subject: RE: Federal regulators apparently force bank to take down religioussymbols >>> >>> Do you think there is a discrimination issue as well as an accommodation issue in cases like this, Eugene. Suppose a bank in a southern state insists that all employees have confederate flags on their desks or work stations? Does an African-American employee have a claim under Title VII? What about displays that proclaim the superiority or virtue of the "white" race? >>> >>> Alan >>> >>> _______________________________________________ >>> 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. >> >> Douglas Laycock >> Armistead M. Dobie 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. Douglas Laycock Armistead M. Dobie 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.
