Federal regulators apparently force bank to takedown religioussymbols
Marc Stern
SternM at ajc.org
Mon Dec 20 11:26:39 PST 2010
The Eleventh Circuit says nothing on that score, though the question is
obvious. I think the reason it did not-aside from the obvious possibility
that appellants may not have raised it-is that the court is so hell bent on
limiting retaliation claims that if a claim is not meritorious on its face
-as accommodation claims are often not-there is no retaliation claim.
Marc D. Stern
Associate General Counsel
165 East 56th Street
NY NY 10022
sternm at ajc.org
212.891.1480
646.287.2606 (cell)
-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, December 20, 2010 02:04
To: Law & Religion issues for Law Academics; Michael Masinter
Subject: Re: Federal regulators apparently force bank to takedown
religioussymbols
Thanks Michael. I obviously have not read the opinion.
But if the employee has a claim for the employer's refusal to accomodate
her, why doesn't she have a retaliation claim for opposing its refusal to
accommodate her?
On Mon, 20 Dec 2010 13:34:16 -0500
Michael Masinter <masinter at nova.edu> wrote:
>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, di
splayed
> 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
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>>
>
>
>
>_______________________________________________
>To post, send message to Religionlaw at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
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>
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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
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