RE: No religious advertisements on municipal buses
The lower federal courts in controversies over transit ads still treat Lehman as good law, See e.g., Entertainment Software v. CTA, 696 F.Supp.2d 934(N.D. Illinois 2010); Ridley v. MBTA, 390 F.3d 65 ( 1st Cir. 2004). I am unaware of any subsequent Supreme Court case questioning Lehman's continued viability and at least in 1998 Justice White sitting on the 9th Circuit denied any erosion of the decisions'' authority. Children of Rosary v. City of Phoenix, 154 F.3d 972 (9th Circuit 1998) Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) http://www.ajc.org/ NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, December 20, 2010 05:14 To: Law Religion issues for Law Academics Subject: Re: No religious advertisements on municipal buses Perhaps Lehman is not such good law anymore -- only a plurality opinion, and it says the buses are not a public forum (more like a commercial enterprise, with discretion about the genres of ads it takes, though not with discretion to engage in viewpoint discrimination within a genre). On Mon, Dec 20, 2010 at 4:59 PM, Marty Lederman lederman.ma...@gmail.com wrote: If the city allows commercial ads but no political or religious ads, I think the policy is constitutionally OK. Maybe. To be sure, that forum (limited to commercial speech) would be distinguishable from the broader forum in Rosenberger . . . but such a favoring of commercial over noncommercial speech would be suspect under the rationale of City of Cincinnati v. Discovery Network, wouldn't it? Nor is it obvious that an exclusion of speech about religion is ok just because religion and politics are treated equally. After all, that was effectively UVa's policy in Rosenberger. One of the oddities of that decision is that (especially when viewed in the Shadow of Lehman v. Shaker Heights and Greer v. Spock) the Court appears to have concluded that whereas all electioneering speech can be disfavored in a public forum -- even though such speech presumably is at the core of most any concept of what the First Amendment protects, cf. Citizens United -- speech about religious matters may not be. On Mon, Dec 20, 2010 at 3:59 PM, Ira Lupu icl...@law.gwu.edu wrote: It would be good to know the exact policy. If the city allows commercial ads but no political or religious ads, I think the policy is constitutionally OK. If the city allows political ads but not religious ads, the policy is indeed highly questionable under Rosenberger, etc. On Mon, Dec 20, 2010 at 3:53 PM, Brownstein, Alan aebrownst...@ucdavis.edu wrote: I don't know if Michael's equation of political ads and religious ads necessarily works. I'm pretty confident that there are lower court cases where the exclusion of political speech was considered to be content discrimination, not viewpoint discrimination (but I would have to look to find them.). There is also commentary questioning whether the exclusion of political speech from a nonpublic forum or limited public forum would receive the same rigorous standard of review applied to the exclusion of religious speech from such locations. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Monday, December 20, 2010 12:13 PM To: religionlaw@lists.ucla.edu Subject: RE: No religious advertisements on municipal buses The problematic case is Lehman v. City of Shaker Heights; if a city can ban political ads from a bus, presumably it can also ban religious ads, though it may matter whether the ads are inside or outside the bus (inside in Lehman). But I would have joined the Lehman dissenters, and I am not confident that either the views of Justice Blackmun for the plurality or Justice Douglas would prevail today. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Corcos, Christine
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change
RE: Federal regulators apparently force bank to take down religioussymbols
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
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.edu954.262.3835 (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
RE: Federal regulators apparently force bank to take down religioussymbols
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.edu954.262.3835 (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
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.edu954.262.3835 (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.edu954.262.3835 (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
RE: Federal regulators apparently force bank to take down religioussymbols
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.edu954.262.3835 (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
Re: Federal regulators apparently force bank to take down religioussymbols
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.edu954.262.3835 (fax)
RE: Federal regulators apparently force bank to take down religioussymbols
I don't know enough about employment discrimination law to discuss whether there is any case law to support my analysis (certainly Michael is far more knowledgeable in this area of law than I am). But as a normative manner, I would argue that a work requirement that in essence tells employees to publicly disclaim their faith discriminates on the basis of religion. The uniform requirements I mentioned in my last post would fit that description. If we were discussing race discrimination, I would probably argue that requiring all employees to wear uniforms that state No African-Americans work here, or I am not an African-American would also be discriminatory. Since there is no duty to accommodate with regard to race, I assume those who disagree would have to argue that these requirements do not constitute race discrimination. I find that conclusion troubling. As for the other questions, requiring an employee to drive a truck with a sign on it that is generally understood to communicate the employer's religious message might invoke a duty to accommodate -- but I would anticipate that the accommodation would result in a change in the employee's duties -- not the covering of the sign. If an employee works for a company that produces or distributes products to be used for religious rituals, wine for Passover, candles for religious services , and other products -- most requests for accommodation will constitute an undue hardship on the employer. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 21, 2010 11:19 AM To: Law Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols 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
RE: Federal regulators apparently force bank to take down religioussymbols
Alan's examples of uniform language expressing racial discrimination or hostility seem more than sufficient to establish a conventional disparate treatment claim since the evident purpose and effect of the language is to discourage African-Americans from working for the employer. Similarly, an employer who required employees to wear a uniform that said No Jews work here or I am not a Pentecostal should expect to incur disparate treatment liability for religious discrimination. Perhaps the employer who requires his employees to display a religious message also intends to discourage members who do not share that faith from working for him; if so, the employer is indeed liable for disparate treatment. But I would not be so quick to draw that inference from a more positive religious message; expressions of religious faith generally are not analogous to expressions of racial subordination. In the event, if I am a Jewish employee who objects to wearing an expression of Christian faith as a burger joint employee, I don't have to prove that the purpose of the message is religious subordination; all I have to do is request an accommodation. 701(j) eliminates the need to identify either the purpose or likely effect employees and applicants of a religious message; all the objector needs is a sincere religious objection to its expression in circumstances that permit a reasonable accommodation. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Brownstein, Alan aebrownst...@ucdavis.edu: I don't know enough about employment discrimination law to discuss whether there is any case law to support my analysis (certainly Michael is far more knowledgeable in this area of law than I am). But as a normative manner, I would argue that a work requirement that in essence tells employees to publicly disclaim their faith discriminates on the basis of religion. The uniform requirements I mentioned in my last post would fit that description. If we were discussing race discrimination, I would probably argue that requiring all employees to wear uniforms that state No African-Americans work here, or I am not an African-American would also be discriminatory. Since there is no duty to accommodate with regard to race, I assume those who disagree would have to argue that these requirements do not constitute race discrimination. I find that conclusion troubling. As for the other questions, requiring an employee to drive a truck with a sign on it that is generally understood to communicate the employer's religious message might invoke a duty to accommodate -- but I would anticipate that the accommodation would result in a change in the employee's duties -- not the covering of the sign. If an employee works for a company that produces or distributes products to be used for religious rituals, wine for Passover, candles for religious services , and other products -- most requests for accommodation will constitute an undue hardship on the employer. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 21, 2010 11:19 AM To: Law Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols 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
RE: Federal regulators apparently force bank to take down religioussymbols
I agree with Michael for the most part and certainly with his statement that expressions of religious faith are not analogous to expressions of racial subordination. But I'm not sure if he is suggesting that there is a difference between a uniform that stated I am not a Pentecostal and a uniform that stated I am a Pentecostal. If everyone wears the latter statement on their uniform, I would think the clear message is that no members of other faiths or non-believers work for that employer and that prospective employees who are unwilling to make such an affirmation should not apply for employment. I agree that religious statements expressing other messages may be much less problematic and indicative of discrimination and that requesting an accommodation is an easier route to pursue. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Tuesday, December 21, 2010 1:47 PM To: religionlaw@lists.ucla.edu Subject: RE: Federal regulators apparently force bank to take down religioussymbols Alan's examples of uniform language expressing racial discrimination or hostility seem more than sufficient to establish a conventional disparate treatment claim since the evident purpose and effect of the language is to discourage African-Americans from working for the employer. Similarly, an employer who required employees to wear a uniform that said No Jews work here or I am not a Pentecostal should expect to incur disparate treatment liability for religious discrimination. Perhaps the employer who requires his employees to display a religious message also intends to discourage members who do not share that faith from working for him; if so, the employer is indeed liable for disparate treatment. But I would not be so quick to draw that inference from a more positive religious message; expressions of religious faith generally are not analogous to expressions of racial subordination. In the event, if I am a Jewish employee who objects to wearing an expression of Christian faith as a burger joint employee, I don't have to prove that the purpose of the message is religious subordination; all I have to do is request an accommodation. 701(j) eliminates the need to identify either the purpose or likely effect employees and applicants of a religious message; all the objector needs is a sincere religious objection to its expression in circumstances that permit a reasonable accommodation. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Brownstein, Alan aebrownst...@ucdavis.edu: I don't know enough about employment discrimination law to discuss whether there is any case law to support my analysis (certainly Michael is far more knowledgeable in this area of law than I am). But as a normative manner, I would argue that a work requirement that in essence tells employees to publicly disclaim their faith discriminates on the basis of religion. The uniform requirements I mentioned in my last post would fit that description. If we were discussing race discrimination, I would probably argue that requiring all employees to wear uniforms that state No African-Americans work here, or I am not an African-American would also be discriminatory. Since there is no duty to accommodate with regard to race, I assume those who disagree would have to argue that these requirements do not constitute race discrimination. I find that conclusion troubling. As for the other questions, requiring an employee to drive a truck with a sign on it that is generally understood to communicate the employer's religious message might invoke a duty to accommodate -- but I would anticipate that the accommodation would result in a change in the employee's duties -- not the covering of the sign. If an employee works for a company that produces or distributes products to be used for religious rituals, wine for Passover, candles for religious services , and other products -- most requests for accommodation will constitute an undue hardship on the employer. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 21, 2010 11:19 AM To: Law Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols 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
RE: Federal regulators apparently force bank to take down religioussymbols
Alan - Great questions! In the particular case of In-N-Out I would imagine that forcing the chain to take the Bible references off the burger wrappers would create an undue hardship, either because it would be too difficult to change all of the wrappers, or because it undermines the brand since the Bible references are part of In-N-Out popular lore. Thus the only possible accommodation would be a change in duties, as Alan suggests, which probably would not be too hard given the skill levels of the workers. With T-shirts/uniforms, perhaps it has to do with the image of the corporation, i.e. is the objected-to speech part of its corporate message? It would be one thing if McDonald's were taken private and the following day new management asked every employee to wear uniforms stating Jesus is Lord or God is Dead. It would be another if say a for-profit Christian bookstore requires employees to wear T-shirts stating Jesus is the Reason for the Season during November and December. It seems to me that the bookstore would have a good argument that allowing an opt-out for an employee dealing with the public might cause an undue hardship by disrupting its brand identity, which is important for selling books. (Btw, I have absolutely no idea whether this sort of brand identity argument has ever been made in the Title VII caselaw.) However, the problem might again be alleviated by allowing a change in duties, i.e. not dealing with the customers. It also seems like the brand identity argument would be stronger the closer the company is to a uniform, franchise model, where every single detail of the operation is considered part of the brand experience. So the more bohemian the bookstore, the less brand identity it could claim. It would also be interesting to see whether a non-profit bookstore would have a better claim; I suspect it would though I am not sure that there would be a very principled reason for it. The converse situation also makes for an interesting hypothetical. Say a religious (or militantly agnostic) person goes to work for Freedom From Religion Foundation and refused a requirement to wear their Village Atheist t-shirt while working in the FFRF bookstore: http://www.ffrf.org/shop/t-shirts/new-village-atheist/. [Btw, I can't help but think that this is some sort of allusion to the popular GW Bush bumper sticker.] Presumably FFRF could make the same argument as the Christian bookstore--it would harm its brand identity for employees who deal with the public to opt out of wearing the Village Atheist T-shirts. I think Eugene may have been making a similar point with respect to the Las Cruces logo, as it is part of the brand of the city. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu] Sent: Tuesday, December 21, 2010 5:06 PM To: Law Religion issues for Law Academics Subject: RE: Federal regulators apparently force bank to take down religioussymbols I agree with Michael for the most part and certainly with his statement that expressions of religious faith are not analogous to expressions of racial subordination. But I'm not sure if he is suggesting that there is a difference between a uniform that stated I am not a Pentecostal and a uniform that stated I am a Pentecostal. If everyone wears the latter statement on their uniform, I would think the clear message is that no members of other faiths or non-believers work for that employer and that prospective employees who are unwilling to make such an affirmation should not apply for employment. I agree that religious statements expressing other messages may be much less problematic and indicative of discrimination and that requesting an accommodation is an easier route to pursue. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Tuesday, December 21, 2010 1:47 PM To: religionlaw@lists.ucla.edu Subject: RE: Federal regulators apparently force bank to take down religioussymbols Alan's examples of uniform language expressing racial discrimination or hostility seem more than sufficient to establish a conventional disparate treatment claim since the evident purpose and effect of the language is to discourage African-Americans from working for the employer. Similarly, an employer who required employees to wear a uniform that said No Jews work here or I am not a Pentecostal should expect to incur disparate treatment liability for religious discrimination. Perhaps the employer who requires his employees to display a religious message also intends to discourage members who do not share that faith from working for him; if so, the employer is indeed liable for disparate treatment. But I would not be so quick to draw that inference from a more positive religious
