On first reading, the distinctions do appear troubling and for a government
developing a policy on this ground, it would appear much more appropriate
and non-discriminatory to create a special 3 day personal day allowance that
included an absolute right by the individual to take those days on
designated religious holidays. However, one point that is interesting here
is that since this is in a collective bargaining agreement, it presumably
arose through a demand by the employees bargaining unit. This doesn't seem
like a proposal the government-employer would come up with on its own. So:
does this make this a private transaction? If not, what responsibility does
the union have?
David E. Guinn JD, PhD
Recent Publications Available from SSRN at
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608
- Original Message -
From: Volokh, Eugene [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Sent: Thursday, May 03, 2007 5:29 PM
Subject: Paid days off for religious holidays
Troy v. City of Lynn School Dep't, 2007 WL 1289409 (Mass. Comm'n Against
Disc. Apr. 18), holds that a collective bargaining agreement that gave
certain Jewish, Greek Orthodox, and Russian Orthodox administrators
their religious holidays off with pay was religiously discriminatory
against a Catholic administrator who wanted Holy Thursday and Ascension
Thursday off.
Jews got three days off for Rosh Hashanah and Yom Kippur. Greek and
Russian Orthodox got one day off for Orthodox Good Friday. Everyone got
Christmas and Good Friday off. This, the Commission held, was
discriminatory: Respondent's refusal, pursuant to the parties' CBA, to
grant Complainant paid leave for Holy Thursday and Ascension Thursday,
while granting paid leave to members of the Jewish faith for Rosh
Hashanah and Yom Kippur, and granting paid leave to members of the Greek
Orthodox and Russian Orthodox faiths for Good Friday, raises a
reasonable inference of discrimination. At the second stage of proof
where indirect evidence is concerned, Respondent has not come forward
with a legitimate, nondiscriminatory reason for the disparate treatment
of members of different faiths. See also Fleming v. Boston Public
Library, 22 MDLR 8 (2000).
1. Say the Commission reasoned that many Jews feel a religious
obligation to take Rosh Hashanah and especially Yom Kippur off, and
Christians feel the same as to their Good Friday (recall that everyone
gets Heterodox Good Friday off, and Orthodox Christians get Orthodox
Good Friday off), but most Catholics do not feel the same obligation as
to Holy Thursday and Ascension Thursday. Should that justify the
disparate treatment? Should it be enough that this particular Catholic
claim a felt obligation to take those days off? Or should that not even
be relevant, given that members of other religions apparently get their
holidays off without any need to claim a felt obligation not to work on
those days?
2. Say an irreligious administrator now complains, on the grounds that
some people get 3 days off -- with pay -- because of their religion,
others get 1 day off, others get 2 days off, but he gets no days off
because he is not religious.
a. Would that scheme violate state or federal antidiscrimination law,
as applied to the atheist? (Which days should the irreligious
administrator be entitled to claim, if he is entitled to claim some
days?)
3. Would that scheme violate the Establishment Clause, on the grounds
given in the Texas Monthly v. Bullock plurality -- that it constitutes a
financial subsidy to religious practice, and that it's not necessary to
alleviate a government-imposed burden on religious practice (since a
day-off-without-pay accommodation would do that just fine)?
Eugene
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