Religious accommodation and compelled employer speech

[Eugene Volokh]

Vance Koven writes:

> I believe your original post stated that the company received 20-25
> complaints about this over a three month period, which the court
> characterized as "only." If a food service company had received "only" 25
> complaints that the meatloaf was too salty, they would probably do
> something to correct it. That's a fairly high number of complaints coming
> from a single point-source, and I would question the court's finding that
> there is no economic loss, or no pottential for economic loss, in such a
> situation.

    A good argument; I should mention, in the judge's defense, that
he did confront this:  His argument was that the cafeteria served
2000 people a day, so 20-25 complaints over three months was just a
drop in the bucket.  But I appreciate your point that even 20-25
complaints of salty meatloaf might be seriously considered,
especially since many service businesses correctly assume that only a
small fraction of those bothered by a practice will take the trouble
to complain about it.

> The accommodation necessary for religious practice ought, intuitively, to
> focus first on whether what the employer wants the employee to do would
> violate the employee's religious beliefs, which the cafeteria employee
> would probably have a hard time showing.

    Actually, the court seemed to take it for granted that the
employee's conduct was "religious practice" -- essentially a
religious motivation test rather than a religious compulsion test, to
return to a debate we had on this list earlier.

> On the other hand, the bus driver
> in your other hypo plainly *could* make that showing, so the next step
> would be to ascertain whether accommodation would be unreasonably
> burdensome on the employer. If McDonalds might withdraw its advertising
> payments if religiously vegetarian drivers (or orthodox Jews?) refused to
> hand out the flyers, is that enough? Would the increase in cost to find
> the driver another position at the same salary be enough if it were equal
> to the loss of revenue?

    And hence my question:  Is the only issue whether the
accommodation would burden the company *financially*, or also whether
it would be a burden (and if so, would it have to be an "undue
burden") on the company's right to speak?

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