The District Court missed an obvious possible accommodation: swapping shifts voluntarily with other employees. in fact, cases very similar to this one get resolved by such swaps. See, eg, Myer v NYCTA, 674 NE2d 305 (1996). So not only did the courts ignore this possibility, but they added the charge of bad faith-which essentially means that Sababth observers are unwelcome in seven day a week, 24 hour a day job-an exclusion noticeably absent from the statute. It aslo suggests that, unlike for example, the handicapped, all job applicants requiring religious accommodation would have to disclose that fact up front. In practical terms, no employer with any choice at all will hire such a person. Proving that sort of employment discrimination is almost always impossible in individual cases Marc Stern. -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Friday, July 20, 2012 11:56 To: religionlaw@lists.ucla.edu Subject: Re: Fouche V. NJ Transit
The district court order in Fouche, reported at 2011 WL 2792450, seems unremarkable; the CBA was straightforward; a more senior driver returned to work, exercised his seniority rights not to work on Sunday, bumping Fouche into a Sunday assignment, and Fouche responded by not coming to work on Sunday rather than by working out, or even offering evidence that he could have worked out, a voluntary job swap with a more senior employee. The employer discharged him for nonattendance, he exercised his CBA rights and grieved his discharge; the employer first offered him reinstatement to part time work that would exempt him from Sunday driving as a reasonable accommodation, and he refused; it then reinstated him contingent upon passing a physical exam required of returning employees, and he refused to show up for his physical. Under Hardison, what plausible argument does Fouche have that 1) there was a reasonable accommodation other than part time work and that 2) the employer failed to offer it to him? And if the offer of part time work was a reasonable accommodation, isn't that offer sufficient, in and of itself, to discharge the obligation to offer a reasonable accommodation even if it is not the employee's preferred obligation? I agree that the panel should have omitted its gratuitous and improper comment about the employee's good faith, but its judgment -- affirming the district court -- seems correct. And given that unpublished non-precedential opinions don't establish circuit law, I don't think the court has created a new exemption from Title VII protection for religiously observant employees; rather, it has just reminded applicants for seven day a week jobs governed by a CBA that Hardison still controls. 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 Marc Stern <ste...@ajc.org>: > > An unpublished opinion of the Third Circuit in Fouche v.NJ Transit > (11-3031) portends excluding large classes of jobs from the > protection of Title VII.A full time driver sought to be > accommodated in not driving on Sunday. The employer claimed its > labor contract precluded accommodation; whether this is so, depends > on whether, for example, swaps were possible and from the bare bones > description of the facts given by the Court one cannot tell. But the > court went on to say that it doubted the good faith of the claimant > who applied for a job in a seven day a week employment situation when > he knew or should have known in advance of the conflict with his > religious requirements. Given the number of accommodations worked > out in such cases there is in any event no factual basis for this > doubt. Worse, the court's off-hand comment suggests that all > employers in need of seven day a week services > (e.g. police ,hospitals etc.) have a new , non-statutory, > unprecedented, defense in Title VII religious accommodation cases. > Marc Stern > _______________________________________________ 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.
