Different wage scales for religious and nonreligious employees

[Michael MASINTER]

I don't a significant difference between a statute that says a public
employee has an absolute right not to work on his chosen sabbath, and one
that says that he has an absolute right to be paid not to work on three of
his chosen sabbaths or other religious holidays.  If anything, the CBA is
worse than the CT statute invalidated in Estate of Thornton v. Calder
since it puts the board in the position of making a factual determination
of whether the faith of the employee who asserts that he is taking a day
off for a religious observance obliges him to take that day off since the
answer to that question determines the obligation of the board to pay the
employee, and if the employee has already exhausted unpaid leave, even to
permit the day off.  If the board seeks review in the Court of Appeals, I
think it should prevail.  

Michael R. Masinter			3305 College Avenue
Nova Southeastern University		Fort Lauderdale, Fl. 33314
Shepard Broad Law Center		(954) 262-6151
masinter at nova.edu			Chair, ACLU of Florida Legal Panel

On Thu, 15 Jan 2004, Volokh, Eugene wrote:

> Is it constitutional (and is it legal under Title VII) for a state agency to
> give its employees three paid days for religious observance -- apparently
> for any "Sabbath or other holy day" observed as a "requirement" of an
> employee's religion -- and only for religious observance?  A New York
> appellate court just held (by a 4-1) vote that this was so, because it
> didn't discriminate among denominations, see In re Main-Endwell Teachers'
> Ass'n v. Bd. of Ed., 2003 WL 23163126 (N.Y. App. Div. Jan. 15).
>  
> But isn't the dissenter right to say that such discrimination in favor of
> the religious and against the nonreligious (and perhaps those religions that
> don't mandate holidays, or that mandate only those that are already given to
> everyone) violates the Establishment Clause?  Again, recall that this is
> paid leave; giving unpaid leave to religious objectors but not secular
> employees can itself pose problems, but at least there the justification is
> that otherwise the religious objectors would lose their jobs.  Seems to me
> that discriminatory provision of paid leave is much more unfair to the
> nonreligious employees, and much less justifiable.  Or am I missing
> something here?
>  
> Eugene
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