Posted by Eugene Volokh:
An Unusual Religious Accommodation Issue:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253715517
From the [1]Atlanta Journal-Constitution:
A federal bankruptcy judge on Thursday ruled that the Hindu Temple
of Georgia must allow creditors onto its property to inventory its
assets and must not spend its income.
Attorneys for the temple, which filed for Chapter 11 bankruptcy
earlier this month to avoid foreclosure of its Norcross facility,
had sought to block creditors from photographing or entering its
holy places. They said any non-Hindus were barred from entering the
temple while the priests are undergoing a 216-day period of
spiritual cleansing.
However, Judge James E. Massey found a compromise: whoever is sent
by creditors to photograph and inventory the rooms must be a Hindu.
Would it be legal for a creditor to assign this particular job task to
an employee based on the person�s religion? Would that turn on whether
there�s some tangible benefit involved -- such as extra overtime pay
-- rather than just a one-time ask assignment? Would the
classification be permissible on the grounds that in this case
religion is an acceptable bona fide occupational qualification under
Title VII? (For more on BFOQs, though in the context of sex
classifications, see [2]here.) Relatedly, what if there�s a
controversy about whether the selected person really qualifies as a
Hindu?
Or would the creditor likely avoid all this by just using an
independent contractor? To my knowledge, religious discrimination in
selecting independent contractors is generally not illegal under
federal law, though I can't speak about Georgia law on this.
More broadly, whether or not it's legal for creditors to do this on
their own, there's also the question whether it's constitutional for a
government agent -- the judge -- to order it. Is it unconstitutional
discrimination based on a person's religion, or an acceptable
accommodation of the temple's religious practice?
I'm inclined to say that no-one will sue over this; but it still
strikes me as an interesting scenario. Thanks to [3]Religion Clause
for the pointer.
References
1. http://www.ajc.com/news/gwinnett/judge-says-hindu-temple-140903.html
2. http://www.law.ucla.edu/volokh/ccri.htm#IIA3b
3. http://religionclause.blogspot.com/
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