Religious Pilgrimage Case in Ninth Circuit

[Sanford Levinson]

This is the reason I love the law, i.e., the facts that (almost inevitably)
emerge in our truly multi-cultural world.  My own inclinations are
unsympathetic to Tiano.  The no-leave requirement for a seasonal employer
seems utterly reasonable.  I often teach this kind of issue by evoking an
observant Jewish colleague of mine, who takes a job in a mall store and
then immediately announces that he will be absent not only every Saturday,
but also for four days during Passover.  Even if the store must accomodate
the Saturday observance (which I think it probably does), I don't see that
it has to accommodate the four days off if it can show that this is a
genuine inconvenience, as I imagine would be the case if, for example, the
store's business was heavily dependent on Easter traffic.  For those of you
who think that Tiano does have a right to accommodation, what if s/he had
claimed a right to stay home to "honor thy parents" by taking care of them
during their sickness?  I *do* think that such family emergencies should be
far more accommodated than they currently are, but I would be upset if only
those making religious claims could get such accommodation.  (A
pro-accommodationist doctrine would, of course, encurage everyone to start
citing the Fifth Commandment, and we would then return to the endless
discussion of how we tell when such citation is "genuine" and not merely
"strategic.)

Sandy Levinson


>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