I do not think a for profit fast food employer covered by Title VII
can lawfully refuse a sincerely based request for a religious
accommodation when that request is to refrain from wearing either
"There is no God" or "Jesus Christ is my Lord and Savior" and, though
there is no case that comes to mind precisely on point, I would start
with EEOC v. Townley Engineering & Manufacturing Co., 859 F.2d 610
(9th Cir. 1988). If Townley cannot compel its objecting employee to
attend but not actively participate in devotional services, then I do
not see how the fast food restaurant would have any prayer of
prevailing in the face of a request for accommodation.
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 "Brownstein, Alan" <aebrownst...@ucdavis.edu>:
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
_______________________________________________
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.
