Federal regulators apparently force bank to take down religioussymbols
Michael Masinter
masinter at nova.edu
Mon Dec 20 12:06:41 PST 2010
I do not want to sound like an apologist for the Eleventh Circuit; it
is notoriously hostile to Title VII claims, particularly in opposition
clause discharge cases. But perhaps the court meant to differentiate
between the no symbols policy as a policy and the employer's
obligation to offer a reasonable accommodation to a particular
employee. Per the court a policy that bans religious symbols from a
private workspace is not even arguably an unlawful employment
practice, so even though Title VII may require an individual
exemption as a reasonable accommodation, the employee cannot plausibly
claim the policy itself, as distinct from the failure to accommodate,
is discriminatory. On that reasoning, firing the employee for seeking
an exemption would be unlawful retaliation; firing the employee for
complaining, as did the employee, that the policy was forbidden by law
would not be unlawful retaliation since no reasonable employee could
believe that Title VII forbids such a policy. Again, following the
court's reasoning, since the employee never asked for an
accommodation, the employer could not have been said to have fired her
in retaliation for seeking a reasonable accommodation.
The Eleventh Circuit regularly rejects opposition clause claims on
similarly stretched reasoning.
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>:
> 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 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.
>>>
>>
>>
>>
>> _______________________________________________
>> 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.
>
> 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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