It is hard to believe Congress meant to allow the
defendant to deny the plaintiff employment because of her religiously
mandated dress reflecting her different religious beliefs, but meant to
allow a suit when the employer simply makes adverse comments about the
person's dress.
On the other hand ,i think the court is right about
retaliation cases not being preempted by the religious exemption.
Marc Stern
________________________________
From: religionlaw-boun...@lists.ucla. d to edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, May 04, 2010 4:36 PM
To: 'Law & Religion issues for Law Academics'
Subject: Religious harassment claim against a religious hospital?
*
Prof. Howard Friedman's excellent Religion Clause
blog pointed to Kennedy v. Villa St. Catherine's, Inc. (D. Md. Apr. 30),
http://www.mdd.uscourts.gov/Opinions/Opinions/Kennedymsjm&o043010.pdf .
Plaintiff, a nursing assistant, was a member of the Church of the
Brethren and wore her denomination's religious garb; the Assistant
Director of Nursing Services at Villa St. Catherine's Nursing Center
allegedly told her - in front of the hospital's administrator/CEO - that
plaintiff's clothes were "inappropriate in a Catholic institution ...
made the residents' family members uncomfortable, ... and that Plaintiff
should conform to a more traditional mode of dress." Some time later -
it's not clear to me when - plaintiff was fired. She sued, claiming in
part that the conduct was open his remarks.
It is hard to
The defendant moved for summary judgment, apparently
based only on the Title VII exemption for religious discrimination by
religious institutions, and not (yet) based on the claim that the
behavior was not "severe or pervasive" enough to create a hostile or
abusive environment based on religion for the plaintiff and for a
reasonable person. The claim that the defendant was a religious
institution was apparently "undisputed." The court, however, held that
religious harassment isn't covered by that exemption, largely because
"Unlike decisions to employ or fire based on religious beliefs,
harassment is not a legitimate part of creation or maintenance of a
workforce composed of individuals of compatible religious beliefs. Nor
could Congress have considered it a legitimate way to 'exercise a
preference,'" and because the EEOC has taken the view that "the
religious organization 'exemption only applies to hiring and discharge,
and does not apply to terms, conditions, or privileges of employment,
such as wages or benefits.'"
Any thoughts on whether this decision is sensible? It
strikes me as unsound as a matter of statutory construction, because the
exemption applies to "discrimination," and the premise of hostile
environment harassment law is that harassment is illegal precisely
because it constitutes discrimination in the terms and conditions of
employment. (The EEOC's view about the exemption generally not applying
to terms, conditions, and privileges of employment thus strikes me as
unsound as well.)
But beyond this, it strikes me as exacerbating the First
Amendment dangers posed by hostile environment harassment law.
Religious harassment claims might apply not just based on statements to
the particular person, but also based on religious proselytizing aimed
at the employees at large, based on religious claims that offend other
religious belief systems, and so on - the sort of behavior that I would
think religious institutions should be free to engage in. Or am I
missing something here?
Eugene
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