I do not want to sound like an apologist for the Eleventh Circuit; it
is notoriously hostile to Title VII claims, particularly in opposition
clause discharge cases. But perhaps the court meant to differentiate
between the no symbols policy as a policy and the employer's
obligation to offer a reasonable accommodation to a particular
employee. Per the court a policy that bans religious symbols from a
private workspace is not even arguably an unlawful employment
practice, so even though Title VII may require an individual
exemption as a reasonable accommodation, the employee cannot plausibly
claim the policy itself, as distinct from the failure to accommodate,
is discriminatory. On that reasoning, firing the employee for seeking
an exemption would be unlawful retaliation; firing the employee for
complaining, as did the employee, that the policy was forbidden by law
would not be unlawful retaliation since no reasonable employee could
believe that Title VII forbids such a policy. Again, following the
court's reasoning, since the employee never asked for an
accommodation, the employer could not have been said to have fired her
in retaliation for seeking a reasonable accommodation.
The Eleventh Circuit regularly rejects opposition clause claims on
similarly stretched reasoning.
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>:
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 Id 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 Sambos 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
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Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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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
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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
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