Weighing In On Religion in the Workplace
Posted
4:49 PM
by Michael Fox
Although Iowa's turn in the political sun won't roll around for at least another 18 months or so, there's an interesting post from Patrick Smith at the Iowa Employment Law Blog, Are Employee Religious Freedoms in Jeopardy?
The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa. Dr. Lambert is advocating for the Workplace Religious Freedom Act. As the article notes, the Act has been kicking around for quite awhile, notwithstanding support on both sides of the aisle. Although it occasionally gets a push, the fact that it has not made much progress I think speaks volumes to the potential problems. Smith thinks the bill cuts too broadly and points out some of the issues:
In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves. What happens when the practices of different religions conflict? What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles? Under existing law, employers have more flexibility to address these situations in the context of legitimate business needs. The proposed RWFA tips the balance too far the other way.I couldn't agree more.
Still it has been a few years since I have written about it. My first post was in 2003 and things had not changed much when I wrote in 2005, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left. It is not unheard of for legislation to languish year after year, only to make it to the forefront. The ADA and FMLA are two examples of statutes that were introduced in a number of Congresses before becoming law, ENDA (protection for sexual preference and more) may be the next.
And who knows, even though it doesn't seem to be making much progress, the Workplace Religious Freedom Act doesn't show any signs of going away either.
Free Government Advice from the EEOC, NLRB and the DOL
Religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include those that are theistic in nature, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs. Title VII requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer. Immigrant employees and even non-immigrant employees could reasonably believe that the bill could impact their interests as employees. For these reasons, employee attendance at and support of these demonstrations in our view was within the the scope of the "mutual aid or protection" clause. It is likely that the battleground in the immigration cases will be over the third principle. And a final bit of advice from the government comes from the folks at DOL, reminding that as of today, the Federal minimum wage increases to $6.55. Labels: FLSA, religion, traditional
Intersection of Two Hot Buttons - Religion & the Transgender Employee
Labels: religion
D.C.Cir. Ducks A Constitutional Bullet
Veitch would have us confront a rather troubling constitutional question: whether chaplains in the armed services can be required to endorse “pluralism” in their religious practices. The services are understandably concerned about unit morale. And those of us old enough to remember World War II movies will recall scenes of chaplains at the front line performing services for soldiers of different religions. On the other hand, Veitch’s argument that a chaplain cannot be obliged to preach counter to his or her religious beliefs consistent with the First Amendment is hardly a frivolous claim. Fortunately for us—and unfortunately for Veitch—we need not decide this difficult question. We agree with the district court that Veitch may not raise this issue because his resignation was voluntary and because the Navy did not act unreasonably in refusing to permit Veitch to withdraw his resignation. Labels: constitutional rights, religion
Posted
9:51 AM
by Michael Fox
You can agree or disagree with it, but it is always helpful to know what the regulators think.
Tuesday, the EEOC published its updated Compliance Manual section on Religious Discrimination. Just as a reminder as to how broad religious discrimination can be, the definition of religion used by the EEOC is:
Also on Tuesday, the NLRB General Counsel Ron Meissberg issued a Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy. Although it could have obvious implications during this election season, the reason for the advice memorandum was the immigration law demonstrations in 2006 which included employees leaving their jobs to protest proposed legislation.
According to the analytical approach set out in the memorandum, the GC concludes such conduct is covered by §7 of the NLRA:
However, coverage is not the key question, the question is whether it is protected activity. That requires both coverage by §7 and an analysis of the "means employed." The memorandum set out three principles that will guide that determination:
identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and
Posted
10:03 PM
by Michael Fox
Last year I noted there had been a spate of cases focusing on the intersection between religion and Title VII. See, Ministerial Exemption Covers Organist, But Not Chaplain? and The Words of the Gospel Set to Messiah or to 3 Blind Mice? Now add a transgendered employee, represented by the attorney who has had success making claims on behalf of transgendered employees (Randi Barnabee) in the Circuit (6th) which has been the most receptive to such claims, to what was already a volatile mix and you are headed for a barn burner of a case. Or at least the potential for one is brewing at Spring Arbor University which has dismissed Professor Julie Marie Nemecek, formerly John Nemecek, allegedly for not modeling behavior consistent with Christian beliefs.
Thanks to Professor Jillian Todd Weiss, who specializes in transgender research (and is transgendered herself) for the heads up. Complete details can be found at University firing transgender prof, at her blog, Transgender Workplace Diversity. Her view is that the University is unlikely to succeed with its bfoq argument.
A slightly different opinion comes from Robert Tuttle, a professor of law and religion at George Washington University in Washington, quoted in an article on the case at Inside HigherEd, thinks the University may have a stronger claim on removing her as a dean than as a faculty member. Two other points he makes are unlikely to be subject to much challenge:
Posted
5:38 PM
by Michael Fox
It was not just the 6th Circuit which was happy to avoid a tough constitutional call, see the discussion of the first amendment status of a USN tattoo here, but the same was also true in today's decision in Veitch v. England (D.C. Cir. 11/28/06) [pdf]. The issue in Veitch arises out of a well documented fight within the military chaplain corps between evanagelical chaplains and those from more traditional faiths. See the Washington Post story from last year, Military Wrestles With Disharmony Among Chaplains.
The Court explained it this way:
Although ducking the constitutional question, the Court does spend the rest of its opinion, including a concurrence, dispatching the resigned chaplain's argument that he was constructively discharged because of religious harassment. This is certainly not the last word on this issue.
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