Federal regulators apparently force bank to take down religioussymbols

Michael Masinter masinter at nova.edu
Mon Dec 20 10:34:16 PST 2010


The Eleventh Circuit's recent religious discrimination, religious  
accommodation, and retaliation decision, Dixon v. The Hallmark  
Services, http://www.ca11.uscourts.gov/opinions/ops/201010047.pdf does  
not foreclose a reasonable accommodation claim or a disparate  
treatment claim by an employee forced to remove religious objects from  
her workspace; to the contrary, it held that the statement allegedly  
made in conjunction with her discharge that she was too religious was  
direct evidence of discriminatory intent, and that because management  
was on notice of the conflict between her religious belief that she  
must display religious objects in her workspace and its contrary  
policy, it was obliged to consider a reasonable accommodation unless  
granting one would cause undue hardship.  The court reversed summary  
judgment for the employer on both grounds, reasoning that the former  
turned on the contested question of whether the statement that the  
employee was too religious was actually made, and the latter on the  
case by case and as yet undeveloped factual specifics of what is a  
reasonable accommodation or an undue hardship.

Dixon did hold that neither Title VII nor the Fair Housing Act forbids  
a private employer from establishing a "no religious symbols" policy,  
and that an objection to such a policy therefore could not support an  
opposition clause claim even though its application to an individual  
employee with contrary religiously motivated practices could support a  
reasonable accommodation claim.


Michael R. Masinter                      3305 College Avenue
Professor of Law                         Fort Lauderdale, FL 33314
Nova Southeastern University             954.262.6151 (voice)
masinter at nova.edu                        954.262.3835 (fax)



Quoting Douglas Laycock <dlaycock at virginia.edu>:

> It doesn't make sense to call religious truth claims offensive   
> (although that is common parlance), but it does make sense to say   
> that an employee who doesn't believe such a claim should not have to  
>  display the claim or its symbols. The employee has a legitimate   
> interest in not appearing to promote what he considers to be a false  
>  belief. And this interest should be well within the religious   
> accommodation protections of Title VII.
>
> Except, apparently, in the Eleventh Circuit.
>
> On Mon, 20 Dec 2010 11:47:20 -0500
>  Eric Rassbach <erassbach at becketfund.org> wrote:
>>
>> I took Alan's example re re Confederate flags etc. to be raising   
>> the issue of hostile work environment discrimination claims. Of   
>> course for such a claim to be successful, a lone requirement that   
>> employees display something offensive would not be enough; you'd   
>> have to show some other pattern of discrimination on the basis of   
>> the protected class at issue. (Wrt the Confederate flag example, it  
>>  is certainly the case that a lot of businesses in the South  
>> display  Confederate battle flags and require their employees to do  
>> so;  though it is probably bars more than banks.)
>>
>> I think a religious discrimination hostile work environment claim   
>> would be really hard to make out based on the display of one   
>> religion's symbol. Competing truth claims are a feature, not a bug,  
>>  of religious life, so it doesn't make sense to call one group's   
>> truth claims or the symbols representing those truth claims   
>> "offensive" or discriminatory per se.
>>
>>
>> ________________________________________
>> From: religionlaw-bounces at lists.ucla.edu   
>> [religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene   
>> [VOLOKH at law.ucla.edu]
>> Sent: Monday, December 20, 2010 10:33 AM
>> To: Law & Religion issues for Law Academics
>> Subject: RE: Federal regulators apparently force bank to take down   
>>      religioussymbols
>>
>>               Alan:  Can you flesh out the discrimination theory  
>> more?  I take it that the claim is that requiring everyone to  
>> display something would constitute discrimination (not just failure  
>> to accommodate religious beliefs, or creation of an allegedly  
>> hostile environment), and that this would trigger a requirement of  
>> exemption even outside the context of religious discrimination,  
>> where such exemption is statutorily required – is that right?  It  
>> seems like an odd sort of discrimination claim, but I’d like to  
>> hear more about it.  (I take it that this would practically be of  
>> some more importance because some companies include in their  
>> corporate symbols items that some people may find offensive based  
>> on membership in various groups, whether the symbols are religious,  
>> allegedly racially offensive, and so on – consider the litigation  
>> over Sambo’s Restaurants, or the use of American Indian symbols, or  
>> other things that might well be a part of company logos, displayed  
>> on compa
>  ny
>> vehicles, and so on.)
>>
>>               By the way, some jurisdictions ban discrimination   
>> based on political affiliation, and of course government entities   
>> are generally barred by the First Amendment from certain kinds of   
>> discrimination based on political affiliation.  Would requiring all  
>>  employees to display company symbols that are opposed by one or   
>> another political party constitute forbidden political affiliation   
>> discrimination?
>>
>>               Eugene
>>
>> From: religionlaw-bounces at lists.ucla.edu   
>> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of   
>> Brownstein, Alan
>> Sent: Friday, December 17, 2010 4:36 PM
>> To: Law & Religion issues for Law Academics
>> Subject: RE: Federal regulators apparently force bank to take down   
>> religioussymbols
>>
>> Do you think there is a discrimination issue as well as an  
>> accommodation issue in cases like this, Eugene. Suppose a bank in a  
>> southern state insists that all employees have confederate flags on  
>> their desks or work stations? Does an African-American employee  
>> have a claim under Title VII? What about displays that proclaim the  
>> superiority or virtue of the “white” race?
>>
>> Alan
>>
>> _______________________________________________
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>
> Douglas Laycock
> Armistead M. Dobie Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
>      434-243-8546
> _______________________________________________
> 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.
>





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