If you step back from the concrete arguments over accommodation or discrimination claims, I wonder if we have any set of coherent narratives to tell about the relationship between law, religion, and commercial activity. It seems to me that when we talk about the relationship between religion and the state we have a pretty clear set of relatively coherent positions with theocracy on one hand and perhaps strict seperationism on the other hand. In between we have accomodationism or some sort of support for religion as of general civic usefulness (I am thinking here of something like the original establishment in the Massachusetts constitution).
Are we simply transferring these narratives to the commercial context. That is do we have some reason for adopting say a strict seperationist stance when it comes to the issue of "church and market"? Alternatively, are we just engaged in some process by which we decide that a given commercial situation is "state-like" enough to trigger the church-state concerns that we have in the case of the government? A pithier way of raising the issue might be to ask whether we have any unique theories of church-and-market or whether we are simply extending our theories of church-and-state by analogy into the marketplace. ~~~~~~~~~~~~~~~~~~~~~~~~ Nathan B. Oman Associate Professor William & Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 "I beseech you, in the bowels of Christ, think it possible you may be mistaken." -Oliver Cromwell On Tue, Dec 21, 2010 at 2:18 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I appreciate Michael's thoughtful and detailed response. But it > sounds like his approach, then, is different from Alan's, since Alan > apparently would treat some such cases as disparate treatment cases (yes?). > If so, Alan, what would you think about the Las Cruces, Mogen David, or > "There Is No God" on uniforms, cars, burger wrappers, and so on? > > Eugene > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Michael Masinter > > Sent: Tuesday, December 21, 2010 11:12 AM > > To: religionlaw@lists.ucla.edu > > Subject: RE: Federal regulators apparently force bank to take down > > religioussymbols > > > > As always, Eugene asks good questions. > > > > Religious discrimination claims can take several forms -- disparate > > treatment, failure to accommodate, and in addition harassment and > > disparate impact. > > > > I am not familiar with any case that treats an employer's mandated > > expression of religious (dis)belief as disparate treatment since such > > a rule, uniformly applied to all similarly situated employees, would > > be disparate treatment only if it were adopted for the purpose of > > discouraging employees or applicants of a particular faith from > > applying or continuing to work. So I would expect any claim relating > > to compelled expression to arise as a reasonable accommodation claim. > > I suppose compelled expression could be part of a religious harassment > > claim, but religious harassment claims are rare given the high burden > > (severe or pervasive) that claimants face. Facing that higher burden, > > a sensible employee or her lawyer would surely prefer a reasonable > > accommodation claim. Disparate impact claims raise even more > > difficult issues respecting classwide impact and preclude recovery of > > damages, so I wouldn't expect to see one of those either. > > > > My sense is that neither the Las Cruces employee nor the Mogen David > > employee is entitled to an accommodation relating to vehicles or > > stationery. The city seal and Mogen David emblem identify the > > employer; since no reasonable observer would see them as the compelled > > expression of belief, I'd expect a court to hold that requiring the > > employer to forego their use at the request of a religious believer > > would impose an undue hardship on the conduct of the employer's > > business. > > > > It's worth noting that section 702(a) of Title VII exempts religious > > corporations, associations, and societies from the prohibition against > > religious discrimination, and therefore from any duty of religious > > accommodation. Although courts have struggled to work out a standard > > for identifying employers entitled to the religious corporation > > exemption that is both faithful to the intent of its drafters and > > consistent with the establishment clause, all of the competing > > standards impose a de facto requirement that the employer be organized > > as a not for profit business even while insisting that the form of the > > organization is only part of the analysis. Townley Engineering lost > > on its claim to a religious corporation exemption for precisely that > > reason. > > > > Mike > > > > 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 "Volokh, Eugene" <vol...@law.ucla.edu>: > > > > > Michael: How religious does the statement have to be before > > > requiring it becomes religious discrimination (which is per se > > > forbidden, unless religion is treated as a BFOQ, a high bar) as > > > opposed to absence of religious accommodation (which may be > > > permissible, if an accommodation is an undue hardship)? > > > > > > Say, for instance, that someone who drives around in Las Cruces, > > > N.M., city cars insists on taping over the city seal (which is > > > mainly three crosses), or insists on crossing out the crosses on any > > > city stationery that he uses. Should he be allowed to do that? > > > What if he does delivery for Mogen David Wine Corporation (which I > > > take it doesn't qualify for the religious entity exemption under > > > Title VII), and wants to tape over the Mogen David itself on the > > > trucks? The list could go on. > > > > > > Eugene > > > > > >> -----Original Message----- > > >> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > >> boun...@lists.ucla.edu] On Behalf Of Michael Masinter > > >> Sent: Tuesday, December 21, 2010 10:01 AM > > >> To: religionlaw@lists.ucla.edu > > >> Subject: RE: Federal regulators apparently force bank to take down > > >> religioussymbols > > >> > > >> 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. > > >> > > > > > > _______________________________________________ > > > 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. > > > > _______________________________________________ > 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.
