Church of Body Modification Case.

Mon Dec 6 07:14:25 PST 2004

Fair enough, but the court also said beards would be subject tot eh same
rule even though it is probably common knowledge that some religions
require males to wear beards or turbans or yarmulkes .In such cases the
line between customers discriminating and rejection of the
practice-which I am not certain is a valid line in any event-shrinks to
the point of nothingness.

Marc Stern

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, December 06, 2004 10:06 AM
To: Law & Religion issues for Law Academics
Subject: Church of Body Modification Case.

Actually, I see no reason at all to think that this religion is in any
way bogus -- any more than mainstream religions with which we are much
more familiar.  More to the point, it need not be an actual established
"religion," as such, in order to be protected by title VII's religious
accommodation provision.  That law has been construed by the EEOC to
track the Seeger/Welch definitions of "religion," i.e., to protect
"moral or ethical beliefs as to what is right and wrong which are
sincerely held with the strength of traditional religious views."  29
CFR 1605.1.

Which leads back to Marc's question:  Is a "grooming" rule based upon
customer "preference" permissible in this area, even though an employer
obviously could not facially discriminate against blacks, or women, or
Jews, just because of customer preference?  I'm not sure what the answer
is, but I do want to suggest that the cases are not exactly parallel.
In the classic "customer veto" case, the customers themselves would be
discriminating on the basis of the protected characteristic, and
therefore the law quite naturally does not permit the employer to tailor
her business practices to account for such customer biases.  In this
case, presumably the employer's not-implausible assumption is that
customers will, rightly or wrongly, look askance on multiple body
piercings, not because they view such piercings as religious in nature
(to the contrary -- they'd probably be as surprised as Richard that the
piercings are religiously motivated), but instead because of mainstream
Western orthodoxy w/r/t such piercings (ok on ears, not-so-ok on other
parts of the face).  I'm not sure how this would or should cut under
title VII, but I suspect the CTA1 is correct that courts have generally
sided with employers in such cases.

From: Menard, Richard H. <mailto:rmenard at Sidley.com>  

	To: 'Law & Religion issues for Law Academics'
<mailto:religionlaw at lists.ucla.edu>  

	Sent: Monday, December 06, 2004 9:41 AM

	Subject: RE: Steven Williams Case .:. .:.

	I've seen that in RFRA and RLUIPA cases: an almost neurotic
reluctance to call a bogus "religion" a spade.  Makes for messy
jurisprudence, but by and large the cases seem to come out right.

		-----Original Message-----
		From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu]On Behalf Of Marc Stern
		Sent: Monday, December 06, 2004 9:35 AM
		To: Law & Religion issues for Law Academics
		Subject: RE: Steven Williams Case .:. .:.

		Could be, but the court specifically refused to rule on
that issue.

		Marc

________________________________

		From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Menard, Richard
H.
		Sent: Monday, December 06, 2004 9:30 AM
		To: 'Law & Religion issues for Law Academics'
		Subject: RE: Steven Williams Case .:.

		I haven't read the opinion yet, but it sounds like a
tacit judgment on the sincerity of the belief.  Church of Body
Modification, please.

			-----Original Message-----
			From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu]On Behalf Of Marc Stern
			Sent: Monday, December 06, 2004 9:25 AM
			To: Law & Religion issues for Law Academics
			Subject: RE: Steven Williams Case .:.

			The First Circuit last week decided Cloutier v.
Costco Wholesale Corp, 04-1475 a Tile VII religious accommodation case.
The plaintiff claimed to be a member of the Church of Body Modification
which required members to wear facial jewelry. Such jewelry violated
Costco's no facial jewelry policy. The Court found that an accommodation
of the faith would have constituted undue hardship to Costco because
customers would be offended by the appearance of facial jewelry."
Courts....have also upheld dress code policies that....are designed to
appeal to customer preference or to promote a professional public
image."

			I find this astonishing. No court would uphold a
whites only hiring policy on ground of customer preference. Airlines
long ago lost the argument about customer preferences for sexy
stewardesses. Why is religious garb different?

			The judicial evisceration of Title VII's
religious accommodation provisions continues apace.

			Marc Stern

________________________________

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