The likelier example involves someone driving a truck for "Jesus Is
Lord Carpentry Services" or some such. Could he demand a transfer to another
task at the company (for which he might not be qualified), or tape over the
slogan on the truck, so that it would no longer be easily recognizable as a
truck belonging to the company?
If all that is implicated is just a duty of religious accommodation,
then the employee would only get an accommodation if this could be done without
undue hardship -- perhaps fine if he's an office worker who just asks that the
company signs not to be attached to his desk, but not if he wants the company
sign not to be attached to the truck that he drives. But if requiring everyone
to display such a sign is treated as discrimination (a bit odd, I think,
precisely since the obligation is applied to everyone), then he would have a
categorical right to an exemption, at least unless one somehow concludes that
religion is a BFOQ for that job (a much higher standard).
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Tuesday, December 21, 2010 8:54 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Federal regulators apparently force bank to take down
> religioussymbols
>
> I always assumed, although I admit without much reflection, that the duty to
> accommodate operated in parallel to the duty not to discriminate. Thus, if a
> religious organization is exempted from the prohibition against religious
> discrimination, it is also exempt from any duty to accommodate. (Of course,
> many religious organizations do not discriminate on the basis of religion in
> hiring for many positions and do accommodate employees of others faiths to
> the extent that they can reasonably to do so.)
>
> A commercial business like In-N-Out Burger is prohibited from discriminating
> on the basis of religion in hiring and is subject to a duty to accommodate. I
> don't know a lot about the division of labor in these kinds of fast food
> operations, but one possible accommodation for an employee whose religious
> beliefs precluded the distribution of religious messages of other faiths
> would be
> to transfer that individual to food preparation rather than distribution.
>
> I can imagine some commercial operations in which accommodations would be
> clearly impractical. If an non-Jewish employee accepts a job in a business
> that
> makes and sells menorahs, for example, it would be difficult to accommodate
> religious beliefs that prevent him from participating in the creation or
> distribution of items used in the religious rituals of other faiths.
>
> There is probably a continuum here. If that is correct, what belongs near the
> prohibited discrimination or required accommodation pole of the continuum.
> Eric, may a fast food employer require employees to wear uniforms that affirm
> "There is no God" or "Jesus Christ is my Lord and Savior" without
> accommodating religious employees who ask to be exempted from this
> requirement?
>
> Alan
>
>
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Monday, December 20, 2010 5:09 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Federal regulators apparently force bank to take down
> religioussymbols
>
>
> Alan --
>
> Does your analysis below apply equally to religious organizations and non-
> religious organizations?
>
> One example I think would be interesting in the latter category is In-N-Out
> Burger, which prints Bible references (e.g. "John 3:16") on every piece of
> food
> packaging. What sort of accommodation would an employee who had religious
> objections to the Bible references be entitled to? Although In-N-Out is
> clearly
> for-profit, it also has at least some religious purposes.
>
> Eric
>
> ________________________________________
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu]
> Sent: Monday, December 20, 2010 2:26 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Federal regulators apparently force bank to take down
> religioussymbols
>
> I think Doug is correct that there is a religious accommodation claim here.
> Maybe there is a hostile work environment argument as well. But I was
> thinking of a claim that falls somewhere in between these two conventional
> frameworks.
>
> I have no problem with Erik's comment that competing truth claims of different
> religions are not intrinsically offensive to members of other faiths. Of
> course,
> some religious truth claims are offensive to members of other faiths, see
> e.g.,
> anti-Catholic and anti-Jewish religious statements by some clergy of other
> faiths which were fairly common in years past. But let's put that issue aside.
>
> It isn't clear to me that discriminatory conduct has to communicate an
> invidious
> message. An employer may not intend to communicate an offensive message if
> he requires employees to display religious symbols on their desk (or uniforms)
> that communicate a message that is starkly inconsistent with the beliefs of
> other faiths. If it is common knowledge, and the employer knows, that
> overwhelmingly the members of other faiths would find that to be an
> unacceptable condition of employment, I think that one may argue that this a
> discriminatory work requirement. Wouldn't a requirement that everyone has to
> display a sign stating "There is no God" on their desk discriminate against
> religious employees -- or a sign saying "Jesus Christ is my Lord and Savior"
> discriminate against non-Christian employees?
>
> The requirement may not be unacceptable to all members of other faiths -- but
> that is true for hostile work environments and religious accommodation claims
> as well.
>
> The issue arises in a different form and context in Charitable Choice
> legislation
> where it is sometimes suggested that the refusal to hire employees of faiths
> other than the faith of the religious employer is not religious discrimination
> because it is not intended to communicate an invidious message. I think that
> view is mistaken as well.
>
> Alan
>
> _______________________________________________
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