Religious objections vs. medical objections

Sisk, Gregory C. GCSISK at stthomas.edu
Tue Mar 6 16:40:17 PST 2012


As a matter of what is a reasonable accommodation, Eugene’s points are certainly salient to me, not so much because one is a medical objection and the other religious but based on what is reasonable in specific context.  I raised the example of the Target cashier who was Muslim and wished to avoid touching pork, and the contrasting example of a cashier who was allergic to peanuts, not so much to insist that the one be accommodated (although I think it should be) as to highlight the tone of the public objections to the Muslim cashiers as a further indication of community antipathy (or, more accurately, the antipathy of the vocal objectors).  Interestingly, Target in fact did accommodate the Muslim employees, concluding they were required as a matter of law under Title VII to do so (regardless of the assertions by some that the request was un-American) and that the easiest accommodation was to shift them from the cash register to other positions within the company.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
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gcsisk at stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 06, 2012 6:29 PM
To: Law & Religion issues for Law Academics
Subject: Religious objections vs. medical objections

                It may well be that there were specifically anti-Muslim statements made in the Target controversy that Greg describes.  But it seems to me that, in general, the analogy between religious objections and medical objections tends to be somewhat overstated.  (I thought the same of the Third Circuit Judge Alito opinion in Fraternal Order of Police v. City of Newark.)

For instance, I imagine that many an employer will gladly give employees extended leave for serious illness, perhaps even weeks’ worth of paid leave and months’ worth of unpaid leave.  Does it follow that it must give the same leave to people who want to go on a months-long religious pilgrimage?  Likewise, an employee might make many accommodations for employees whose medical conditions make it impossible for them to do a certain job, even when that involves a far greater than de minimis cost.  The employee might be required to do so by disability law, but might sometimes simply choose to do that in order to help someone who is sick or injured.  Does it follow that it must make similarly high-cost accommodations for religious employees?

I don’t think so.  It seems to me that an employer can reasonably conclude that, as a general matter, health-based objections are less likely to be broadly shared (there will be fewer cashiers with peanut allergies than Muslim cashiers, at least in areas with a high density of Muslim immigrants), and less likely to be perceived as slights even by unbiased customers.  No customer who notices that a cashier refuses to handle peanut products will take that as a personal slight; but even customers who aren’t hostile to Islam as such might perceive religious objection to the handling of pork or alcohol as a statement that the customer’s religious beliefs are (in the cashier’s view) wrong, or that the customer’s eating habits are “unclean” and drinking habits are unwholesome.

And beyond this, it seems to me quite permissible (though not the only permissible view) for an employer to conclude that undoubted, scientifically provable medical risk deserves more accommodation than subjective, individually felt religious belief.  Moreover, when it comes to legal compulsion, I would think (see TWA v. Hardison) that imposing the costs of one person’s religious practice on others raises objections that are more serious than just imposing the costs of one person’s disability on others would.

Or am I mistaken on these things, and employers who generously provide substantial accommodations for those who are sick, allergic, or disabled must provide equally substantial accommodations for those who have religious objections?

Eugene

Greg Sisk writes:

And given that this episode occurred at the same time that Muslim cashiers at Target asked not to be required to handle pork, it was fell into a context in which simple accommodations offered to others – such as allowing a cashier allergic to peanuts not to handle peanuts or peanut butter – became the subject of vehement public objection when Muslims were asking for the same kind of thing.
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