Ch. 10_ Religious Discrimination

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					Ch. 10, Religious Discrimination

   A little different twist in this chapter
    because have something new; have new
    element of accommodation
Ch. 10, Religious Discrimination,
cont,d.
   Scenario #1: applicant is not hired b/c
    he doesn’t want to work on Sat., his
    Sabbath. Discrimntn? Y unless wld =
    undue hardship on Er/other Eees.
Ch. 10, Religious Discrimination,
cont,d.
   Scenario #2: Eee joins religious group 3 mo’s
    after coming to work; Sabbath is Tues; won’t
    work on Sabbath & is terminated; Er defends
    saying he was not of // faith when hired &
    can’t be valid religion b/c none has Tues as
    Sabbath. Ans.: Have rt to join religion of
    choice after emplymt, VII has very liberal def
    of religion: any closely held belief // takes /
    place of religion in Eee’s life, even atheism, cf.
    p. 348 (Holidays? Dial a prayer); not like tax
    regs--Divine Profit
Ch. 10, Religious Discrimination,
cont,d.
   Scenario #3: Church fires Rev. Pamela
    Combs while she’s off on maternity leave on
    basis of her pregnancy and her gender.
   Q: covered by Title VII?
Ch. 10, Religious Discrimination,
cont,d.
   Statutory basis: Pt. of VII
   1st Amendment also cited: 2 pts to Religion aspect of
    1st, exercise & establishmt
   Establishmt in response to Church of Eng.--didn’t
    want “1st Federal Church” or “Church of America”.
   Exercise came from fact // some founders of
    America (e.g., pilgrims) fled religious persecution in
    Europe
   Need gov’t, st or fed, for 1st to apply but VII applies
    to priv & pub Ers
Ch. 10, Religious Discrimination,
cont’d
   King Henry VIII established Church of
    England when his attorney general (Thomas
    More) would not interpret canon law as
    allowing him to divorce Catherine of Aragon
    to marry Anne Boleyn; so, he divorced More
    from his head as well as Catherine from hers;
    likewise 4 or 5 of his other wives: 6 wives,
    Catherine of Aragon; Anne Boleyn; Jane
    Seymore; Ann of Clives; Katherine Howard;
    Katherine Parr.
Ch. 10, Religious Discrimination,
cont,d.
   Er’s duty to reasonably accommodate
    unless would create an undue hardship
    – 2 diff’t sides of same coin
    – def. on p. 344
    – Also there are specific BFOQ’s somewhat
      in the nature of exemptions in this area of
      VII, i.e., religious Ers may give preference
      to their own; or outright discriminate v.
      applicants not from its own religion.
Ch. 10, Religious Discrimination,
cont,d.
 “Secular” means not religious or
  nonsectarian; “sectarian” means
  religious
 If a religious organization such as a
  church has non-sectarian businesses
  such as day care centers, bookstores,
  gymnasiums etc., they have the same
  exemption as the church & may
  discriminate
   Corporation of the Presiding Bishop of the Church of Jesus
    Christ of Latter-day Saints v. Amos, (S.Ct. 1987)
Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter-day Saints v.
Amos, (S.Ct. 1987)
   Bldg engineer (for 16 yrs.) at non-profit gymnasium
    did’t get “temple recommend” so was dischg’d.
    Dfdnt church claimed religious exemption & Pltf
    claims ‘72 amndmt extending religious exemptn to
    secular nonprofit activities violates establishmt clse
    of cnstn. Ct. notes // 1 of the reasons for the
    amendmt is so // a church won’t have to try to guess
    wh of its activities cts will consider secular, this
    simply allows churches to advance their own religion
    rather than in nature of establishing it.
Ch. 10, Religious Discrimination,
cont,d.
   Also, a special § for educational
    institutions of a particular religion--may
    discriminate on basis of religion in
    employmt (cf. p.347)
Ch. 10, Religious Discrimination,
cont,d.
 What is Religion? (p.348)
 2 ctiteria:
    – 1. closely held belief
    – 2. takes place of religion in person’s life
    – even athesism qualifies (cf. Exh. 10-3)
   Frazee v. Illinois Dep’t of Employment Security, et al. (S.Ct. 1989
Frazee v. Illinois Dep’t of Employment
Security, et al. (S.Ct. 1989)

   Sup. Ct. decis. but not a VII case--an U I
    compensation matter. Pltf worked for
    Kelly Temporaries & refused a retail
    position b/c it wld reqr him to wrk on
    Sundays against his beliefs. He didn’t
    belong to any particular religion, just
    was a Christian. Ct said don’t have to
    belong to a particular religion to claim
    protection of the Free Exercise Clause.
Ch. 10, Religious Discrimination,
cont,d.
   Good rule to remember stated on p.
    349. Most often asked Q and ans is
    Yes...have to accommodate even if got
    religion subsequent to having been
    hired!!!!!! (b/c cldn’t have refused to
    hire on // basis anyway!)
Ch. 10, Religious Discrimination,
cont,d.
   Grooming codes & religious conflict---

 turbans, beards etc. usually will be
  protected if part of religious belief but
  between OSHA req’d hard hat &
  turban, hard hat will prevail (I think).
 (see later case on Jewish skull cap)
Ch. 10, Religious Discrimination,
cont,d.
 Another good rule to remember:
 Er has to make a good faith
  accommodation but it only has to be an
  accommodation & not the one the Eee
  prefers.
   Goldman b. Weinberger (Casper), (S.Ct.
    1986)
Goldman b. Weinberger (Casper),
(S.Ct. 1986)
   Pltf, a PhD in clinical psychology from Loyola
    Univ @ Chicago under scholarship program
    wh then req’d 1.5 yrs active duty for @ yr of
    eductn. Wanted to wear yarmulke (beanie)
    instead of service cap even out of hospital.
    S.Ct. affirms revsl of D.Ct. in favor of
    uniformity--distinction made by by AirForce
    regs in visible & non-visible religious attire.
    Held: No 1st amenddmt violation--note--No
    Title VII claim b/c fed’l gov’t not yet cov’d by
    VII until ‘91 amendmts
   (Rev)Lumkin v. Jordan(City of S.F.),
    Calif. state decision 1996
(Rev)Lumkin v. Jordan(City of
S.F.), Calif. state decision 1996
   Pltf was removed from city’s human rights
    commission for statmts made about
    homosexual lifestyle, aids, etc.
   He sued claiming that / Calif Civil Rts law
    (similar to VII ) prohibiting discrimntn v.
    religion had bn violated. Calif. appellate ct
    said dismissal not based on his religion but
    due to the fact that his beliefs clashed with
    the goals of the commission (????)
Ch. 10, Religious Discrimination,
cont,d.
   Er’s duty to accomodate
    – p.357...1st bullet, Eee working at sandwich shop
      where Er lets Eees eat all the restaurant food they
      want during lunch break but Eee has religious
      compunction v. eating meat. The authors state
      that Er may have duty to accommodate by
      offering him PB&J, veggies or pasta. Don’t think
      so. If were a condom factory & Eee’s religion
      wouldn’t let him use condoms wld Er have duty
      to provide w/ books on alternative methods of
      birth control??? (Hotel Style Steaks?)
   Wilson v. U.S. West Communicatioins (8th
    Cir. 1995)
Wilson v. U.S. West
Communicatioins (8th Cir. 1995)
   Anti-abortion fetus button case--illustrates just what is req’d of
    Er for a reasonable accommodation. Dist. Ct. jdmt aff’d for Er.
    Button caused disruptns at work, caused waste of time, a 40%
    decline in production since she began wearing the button--Er
    gave her sev’l options like wearing the button only in her
    cubicle, covering / button while at work, wearing the button
    w/ / same message but w/out / photo but she maintained //
    such wld cause her to break her promise w/ God to wear it & to
    be a a “living witness”--2 Eees had filed grievances in re button;
    some threatened to walk off / job--various reasons, infertility,
    miscarriages, death of premature infant. Some of her suprv
    were also Catholic & counsled her v. such activity. Ct hld // in
    effect, she was trying to impose her beliefs on others as she
    chose. Rule is // any reasonable accommodation is all // is
    req’d by statute.
Williams v Southern Union Gas
Company (10th Cir. 1976)
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      1st Qtr   2nd Qtr   3rd Qtr   4th Qtr
   Williams v Southern Union Gas Company
    (10th Cir. 1976)
Williams v Southern Union Gas
Company (10th Cir. 1976)
   Eee was terminated for not working on Saturday wh
    had beocme his Sabbath. Co was utility w/
    emergencies, Eee had joined church 7 yrs after 1st
    employed---his own minister had advised him that
    he could work Saturdays in emergencies. They
    needed him to help complete a job on Sat. Suprv had
    to delay start of vacation & work himself b/c
    Williams refused to work Sat. Ct. cites EEOC reg wh
    states “Such undue harship, for example may exist
    whre the employee’s needed work cannot be
    performed by another employee of substantially
    similar qualifications during the period of absence of
    the Sabbath observer.” (p.362 rt. hd side)
Williams v Southern Union Gas
Company (10th Cir. 1976), cont’d
   Ct. noted // Williams seem to insist //
    he, rather than his Er, be the one to
    determine what constituted an
    emergency. Er had a duty to serve /
    consuming public w/out interruption
    & to adhere to emplymt practices //
    were fair to other Eees as well. Held //
    what Er did was reasonable.
   Chalmers v. Tulon Company of
    Richmond ( 4th Cir. 1996)
Chalmers v. Tulon Company of
Richmond ( 4th Cir. 1996)
     case brings up Q: Is it better to ask for
        permission or for forgiveness?
Chalmers v. Tulon Company of Richmond
( 4th Cir. 1996), cont’d

   Pltf was a surprv, herself; wrote ltrs to
    Eees of a religious or moral nature
    asking them to accept Christ etc.. In
    one case wife opened ltr & became
    distraught thinking ltrs indicated
    adultery; Er terminated her based on
    ltrs invading Eees’ privacy & damaging
    work relationships.
Chalmers v. Tulon Company of Richmond
( 4th Cir. 1996), cont’d

   to show a prima facie case:
   1. prove bona fide relgious belief// conflicts w/ an
    employmt reqrmt
   2. Eee informed Er of // belief
   3. was disciplined for failure to comply w/ // belief
   Here, no evid // she ever informed Er she intended
    to send ltrs & further, Er cldn’t legally allow her to
    send such ltrs.
Ch. 10, Religious Discrimination,
cont’d
   Er’s Duty to Cooperate in Accommodation
   cf p.369 Rule is that Er make any reasonable
    accommodation and not necessarily make the
    most reasonable accommodation or the one
    that the Eee requests.
   Vargas v. Sears, Roebuck & Company,
    (E.Dist. Mich 1998)
Vargas v. Sears, Roebuck &
Company, (E.Dist. Mich 1998)
   Vargas was Mexican-American practicing Native-
    American religion wh consdrd wearing of long hair
    by men to be sacred. Hired by Sears & given
    handbook wh stressed neatness & businesslike
    appearance but allowed beards & contemporary hair
    styles. About yr after hired Vargas, he had hair in
    pony tail & was advised // not approved. Vargas
    informed suprv of religious reason & suprv asked
    him to tuck hair into collar as another native
    American Eee had done. Pltf refused. Ct notes steps
    to make a prima facie case:
Vargas v. Sears, Roebuck &
Company, cont’d
   4 steps of prima facie case:
   1. show hold a sincere religious belief // conflicts
    w/ an emplymt reqrmt
   2. did inform Er about / conflict
   3. dischg’d or disciplined for failure to comply
   4. B of P shifts to Er so show offered reasonable
    accommodation or cldn’t do so w/out undue
    hardship
   Here no evid // he told Er // religion precluded him
    from tucking in hair; he flatly refused to even
    attempt to comply w/ any accommodation
Ch. 10, Religious Discrimination,
cont’d
 What constitutes an undue hardship?
 cf. p. 372 : 8 bullets
 The Hardison case shows that criteria
  not as onerous as ADA
   Trans World Airlines, Inc. v. Hardison
Trans World Airlines, Inc. v.
Hardison
   Hardison worked at Platte Woods overall facility in
    area // was 24/7. & was subject to sr’ty system in
    C/B; mbr of religion // forbade work on Saturday.
    Ok at 1st but when got another job assignmt he had
    sought, didn’t have enuf sr’ty to avoid Sat work.
    Appl Ct. hld // Er had 3 reasonable alternatives: 1.
    cld permit him to work 4 day week; 2. could have
    gottten another Eee to work his position by paying
    o/t; 3. Cld have arranged swap w/ another Eee but
    // wld violate C/B
   S.Ct. overruled Ct of Appls & held // @ of 3 wld be
    undue hardship & to reqr more than de minimis cost
    wld be an undue hardship & // TWA had
    reasonably tried to accommodate.
Ch. 10, Religious Discrimination,
cont’d
 Religion as a BFOQ
 2 Times or BFOQ situations for
  religious Ers:
 1. an educational institution
 2. if reasonably necessary for er’s
  particular normal business operation
  (cantor at Temple) (not necessarily for /
  job itself as next case illustrates
Pime v. loyola University of
Chicago, (7th cir. 1986)
   Pime v. loyola University of Chicago, (7th cir.
    1986)
Pime v. loyola University of
Chicago, (7th cir. 1986)
   Pltf, was a Jewish adjunct philosophy lecturer but
    thy didn’t want to hire him back b/c Univ. was
    seeking a Jesuit for / post. He argues // fact // 27
    out of 31 tenured philosophy professors are not
    Jesuit,-- wld seem to indicate // being Jesuit not a
    BFOQ for job. but ct notes that § says BFOQ for
    normal operation of business & not for / specific job
    & evid indicated 75% of students were from Catholic
    backgrnds & // Jesuit presence on faculty essential
    to Univ. demeanor so 27/31 indicates need. (for Er)
Ch. 10, Religious Discrimination,
cont’d
   Religious Harassment
   In 1993, somewhat in response to the School
    Prayer cases & perceived anti-religion stance
    of the Federal Courts, Congress enacted the
    Religious Freedom Restoration Act (RFRA)
    and the Sup. Ct. ruled it uncnstnl in 1997 as
    violating the 1st Amendmt.
   There are EEOC guidelines on religious
    harassment (issued June, 1999)
Religious Harassment, cont’d

   Guidelines (p.380)
    Eees should be permitted to:
   1. engage in religious expression in non-public area
    of workplace to same extent as non-religious private
    expression. ( e.g., if can hang picture of Elvis Presley
    or Barry Bonds on wall, then can hang picture of
    religious nature.)
   2. can engage in religious discussion to same extent
    // can engage in non-religious discussion (e.g., if can
    write letter to editor of company paper about sports
    then can too about relgion.)
Guidelines, cont’d


   Eees should be permitted to:
   3. engage in religious expression directed at fellow
    Eees even to extent of persuasion but must refrain
    from it when ask to by fellow Eee or when fellow Eee
    otherwise indicates // it is not welcome.
Union activity and Religious
Discriminatioin
 Unions are req’d under VII to work w/
  Er in attempting to accommodate Eees’
  religious beliefs or practices
 Some religions hold that it is wrong to
  belong to a union or to pay $ to one.
  1980’s amendment to the NLRA allows
  a religious objector (in cases of union or
  agency shop) to pay an equivalent amt
  to a non-labor/non-religious charity.
F**I**N**I**S

				
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