Church of Body Modification Case. .:.

Mon Dec 6 07:18:39 PST 2004

Not so fast.  I for one still don't have a satisfactory grasp on where the
threshold line is drawn.  Yes, "sincerely held with the strength of
traditional religious views" is vague, and necessarily so, but I can't
believe it's meaningless.  Surely more is required than a webpage and some
two-bit coffehouse philosophy.  Otherwise the whole endeavor invites a
pernicious inflation that will ultimately devalue (jurisprudentially) actual
religious belief and exercise, with a number of unfortunate consequences.

-----Original Message-----
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  <mailto:religionlaw at lists.ucla.edu> & Religion issues for Law
Academics' 
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>
[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

  _____  

Sidley Austin Brown & Wood LLP mail server made the following annotations on
12/06/2004, 08:29:41 AM
---------------------------------------------------------------------

This e-mail is sent by a law firm and may contain information that is
privileged or confidential. If you are not the intended recipient, please
delete the e-mail and any attachments and notify us immediately.

Sidley Austin Brown & Wood LLP mail server made the following annotations on
12/06/2004, 08:44:39 AM
---------------------------------------------------------------------

This e-mail is sent by a law firm and may contain information that is
privileged or confidential. If you are not the intended recipient, please
delete the e-mail and any attachments and notify us immediately.

  _____  

_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.

Sidley Austin Brown & Wood LLP mail server made the following annotations on 12/06/2004, 09:18:44 AM
---------------------------------------------------------------------

This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20041206/b87fbc80/attachment.html