Religious Pilgrimage Case in Ninth Circuit

[Michael MASINTER]

The Ninth Circuit just reversed a Title VII failure to accommodate claim
in Tiano v. Dillard Department Stores, 1998 WL 117864 (9th Cir. March 18,
1998).  Tiano, a devout Roman Catholic, worked as a salesperson for a
retailer that permitted employees to take unpaid leave and vacation time,
but forbid taking any leave from October 1 through December, the peak
retail season.  Tiano went on a religious pilgrimage to Medjugorje,
Yugoslavia in October of 1988 after receiving "a calling from God" to
attend that pilgrimage; she sought but was unable to obtain leave because
of the seasonal prohibition.  The employer told her that if she went, she
would lose her job.  She claimed her discharge violated Title VII because
of the failure of her employer to reasonably accommodate by permitting her
to take unpaid leave, and prevailed at trial. The Court of Appeals
reversed on the ground that the evidence was insufficient to establish the
temporal component of her pilgrimage -- though she established a bona fide
religious belief that she was required to undertake a pilgrimage, she
failed to offer sufficient evidence to support the trial court finding
that her bona fide belief required her to travel at that time of year.

The dissent argued that trial court credibility judgments cannot be
clearly erroneous, and that therefore reversal was unwarranted.

This seems to be an unusual case for several reasons -- courts only rarely
reject the bona fides of mainstream religious adherents, and appellate
courts generally do not review credibility decisions; beyond that, why
doesn't TWA v. Hardison control on the reasonable accommodation
question?  And, if RFRA is still in effect, what, if anything, should its
effect be?

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu