Federal regulators apparently force bank to take down religioussymbols

Eric Rassbach erassbach at becketfund.org
Mon Dec 20 17:09:01 PST 2010


Alan --

Does your analysis below apply equally to religious organizations and non-religious organizations?

One example I think would be interesting in the latter category is In-N-Out Burger, which prints Bible references (e.g. "John 3:16") on every piece of food packaging. What sort of accommodation would an employee who had religious objections to the Bible references be entitled to?  Although In-N-Out is clearly for-profit, it also has at least some religious purposes.

Eric

________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownstein at ucdavis.edu]
Sent: Monday, December 20, 2010 2:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take   down    religioussymbols

I think Doug is correct that there is a religious accommodation claim here. Maybe there is a hostile work environment argument as well. But I was thinking of a claim that falls somewhere in between these two conventional frameworks.

I have no problem with Erik's comment that competing truth claims of different religions are not intrinsically offensive to members of other faiths. Of course, some religious truth claims are offensive to members of other faiths, see e.g., anti-Catholic and anti-Jewish religious statements by some  clergy of other faiths which were fairly common in years past. But let's put that issue aside.

It isn't clear to me that discriminatory conduct has to communicate an invidious message. An employer may not intend to communicate an offensive message if he requires employees to display religious symbols on their desk (or uniforms) that communicate a message that is starkly inconsistent with the beliefs of other faiths. If it is common knowledge, and the employer knows, that overwhelmingly the members of other faiths would find that to be  an unacceptable condition of employment, I think that one may argue that this a discriminatory work requirement. Wouldn't a requirement that everyone has to display a sign stating "There is no God"  on their desk discriminate against religious employees -- or a sign saying "Jesus Christ is my Lord and Savior" discriminate against non-Christian employees?

The requirement may not be unacceptable to all members of other faiths -- but that is true for hostile work environments and religious accommodation claims as well.

The issue arises in a different form and context in Charitable Choice legislation where it is sometimes suggested that the refusal to hire employees of faiths other than the faith of the religious employer is not religious discrimination because it is not intended to communicate an invidious message.  I think that view is mistaken as well.

Alan

-----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 9:52 AM
To: Law & Religion issues for Law Academics; Eric Rassbach
Subject: Re: Federal regulators apparently force bank to take down religioussymbols

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
_______________________________________________
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