Jottings By An Employer's Lawyer

Tuesday, August 26, 2014

5th Circuit Weighs In On Religious Discrmination

Yesterday's post about the difficulty that courts have in dealing with religious discrimination, see Not Off to a Good Start and Onionhead: the newest religion? could not have been a better segue way to today's decision from the 5th Circuit, Davis v. Fort Bend County, (5th Cir. 8.26.14).

In a 2-1 decision, written by Judge Prado, the Court overturned summary judgment where the district court had found that Davis' absence on a Sunday to attend a ground breaking ceremony for her church was not a religious practice. As the district court found, and Fort Bend County argued before the 5th Circuit:
“being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.”
Instead, the majority opinion focused on what it called a historical reluctance of court's to delve too deeply into an individual's professed religious belief:
This court has cautioned that judicial inquiry into the sincerity of a person’s religious belief “must be handled with a light touch, or judicial shyness.” Tagore, 735 F.3d at 328  .... “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. .... Indeed, “the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.” Id. 
Judge Jerry Smith, politely, but vigorously disagreed with the Court's limited view:
In its well-written opinion, the majority errs in holding that our inquiry is limited to the sincerity of an employee’s alleged religious belief; we must also consider whether that belief is “religious” in nature or merely a personal preference or a secular social or economic philosophy. 
I can see en banc, or perhaps even Supreme Court review written all over this one.  So perhaps, at least in this Circuit, the question I raised yesterday will soon be, if it is not already, answered by Davis.

At a minimum, if you currently have a religious discrimination case pending in the 5th Circuit, you need to be aware of this decision.

I have enjoyed my visit at your blog, particularly this article. It's hard to draw a line on what is a religious practice and what isn't, but I like your insights on this matter. They should definitely be held to the same definitions of terms across cases. Thanks for the post.
It is tricking to pick apart when religious liberty ends, and the work of, say, and employment lawyer begins, Gerald. It is a responsibility enjoined by the Bill of Rights, and it is totally worth hashing out such questions in court. They give us a more concrete sense of the amorphous boundaries of freedoms it enumerates.

Paul |
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