|Jottings By An Employer's Lawyer|
Friday, January 04, 2013
Veganism Protected As a Religion? Not So Fast
Still, this highlights an area where courts would really not like to go. I still go back to the Cloutier v. Costco decision from the 1st Circuit, as an example of just how courts view the murky waters of discerning what will meet the standard for protection under Title VII's protection against religious discrimination. See A Piercing Problem - 1st Cir. Ducks the Real Question. There the Court wrote:
The opportunities for raising a claim of "veganism discrimination" are probably limited, but the opportunities for individuals to claim religious discrimination under the EEOC definition are not. 29 CFR §1605.1 provides that:
... the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views. ... The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.The termination of a hospital employee for refusing to take a flu shot is a fascinating area in and of itself. I learned that, when I handled such a case a year ago. It is a classic example where an employer is put in a bind between what is required to comply with a mandate and the impact on its employees.
In order to comply with Joint Commission regulations, many hospitals feel pressured to have mandatory flu shot requirements. A position that seems to be well supported by findings of health organizations. On the other hand, forcing someone to take a vaccine, or have some unpopular accommodation, such as wearing a mask for the entirety of the flu season, is certainly likely to ire a certain set of employees.
Often the law is left to sort it out, and unfortunately the mechanism for doing so is most often a claim of discrimination of some sort with the employer in the middle, paying for it, regardless of how it is ultimately decided.