Offensive religious symbols and the Title VII duty to accommodate

[Michael deHaven Newsom]

Eugene raises a tough question.  I think that there is an answer, I do
not like it, but it goes something like this -- one tolerates every
opinion except the intolerant opinions.  Mozert v. Hawkins comes to
mind.  This answer is ugly, because it is necessarily subjective.  I do
not agree with the liberal paradigm here that one can easily or
confidently distinguish between acceptable and unacceptable opinions.
But, on this one the liberals are right at least to this extent.  There
is no constitutional duty or obligation to tolerate the intolerant.

I am reminded of the problem, which I think that I may have addressed
some time ago, as to whether a democratic polity has to allow a party
with intentions of establishing a totalitarian state to come to power by
democratic means.  The answer is no.  The answer is ugly.  But the
answer is still no.

Michael deHaven Newsom
Howard University
School of Law

"Volokh, Eugene" wrote:

>
>
>         Sheldon Swartzentruber wears a tatoo of a hooded figure
> standing in front of a burning cross.  Swartzentruber's coworkers
> complained, saying that they found the tattoo "offensive and
> threatening."  Swartzentruber's employer, the Gunite Corporation, then
> ordered him to cover up the tattoo.  Swartzentruber replied that he
> had for two years been a member of the Church of the American Knights
> of the Ku Klux Klan, and that the tatoo is one of the church's seven
> sacred symbols.  Gunite, he argues, had a duty to accommodate this
> religious belief.
>
>         The court said that there was no evidence that "being required
> to cover up [Swartztentruber's] tattoo at work conflicts with his
> religious beliefs."  But the court also went further:  "[E]ven if Mr.
> Swartzentruber had made out a prima facie case, . . . Gunite has shown
> that it reasonably accommodated his asserted religious observance or
> practice. . . .  [T]he court agrees with Gunite that any greater
> accommodation would cause it an undue hardship, [because] it violated
> Gunite's racial harassment policy and offended other employees."  2000
> WL 767548, *3 (N.D. Ind. May 22).
>
>         Now I'm pretty happy with the result in this case, but I
> wonder exactly how such an analysis would play out in other cases.
> Say that an employee is wearing a pagan symbol, and coworkers are
> offended by it.  Cf., e.g., Cf. Will Haynie, Agreement Lets Student
> Wear Wiccan Symbol: Settlement Ends Lawsuit Brought by Lincoln Park
> Senior, Detroit News, Mar. 23, 1999, at D1 (discussing a high school
> policy--in this instance aimed at controlling gangs--banning the
> wearing of pentagrams).   Would the employer be allowed to order the
> employee to cover it up?  What if coworkers are offended by the
> employee's cross or Star of David?  What if coworkers are offended by
> a swastika that actually turns out to be a Hindu symbol?  Cf. Martin
> Dyckman, Wine, Women, and Spirited Debate, St. Petersburg Times, Mar.
> 3, 1998, at 19A (describing a case where a person claimed a right to
> wear a swastika as an Aryan Nations religious symbol, albeit in the
> prisoner context); Abdon M. Pallasch, Hindu Files Suit to Challenge
> Swastika Firing, Chi. Tribune, Aug. 6, 1998, at 4 (describing a
> workplace incident involving a swastika as a Hindu religious symbol);
> Falun Dafa (visited Oct. 13, 1999) <http://www.falundafa.org>
> (featuring two prominent swastikas as part of the website of the
> Chinese Falung Gong spiritual movement).
>
>         The moral distinction between the burning cross -- assuming
> that it is indeed genuinely used as a religious symbol, as may well be
> quite plausible -- and the other symbols seems to me quite plausible.
> But how exactly would the law draw a constitutionally permissible
> legal distinction?  Would the question just be whether the symbol *in
> fact* offends coworkers?  (If so, what if coworkers are genuinely
> offended by the pentagram, the cross, or the Star of David?)  Or would
> the law distinguish "reasonable offense" from "bigoted offense," and
> if so, exactly how?
>
>         By the way, none of these are rhetorical questions.  This
> seems to me to be a genuinely tough issue -- I certainly sympathize
> with the employer's desire to prevent disruptive behavior, but I
> wonder just how the duty of reasonable accommodation would deal with
> that desire when the disruption is caused by people's hostility
> (eminently justified hostility!) to the employee's religious views.
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