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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Monday, August 25, 2014

Not Off to a Good Start and Onionhead: the newest religion?

Six weeks ago, on the 12th anniversary of this blog, I indicated that I would see if last year's lack of posting would continue and whether or not it was time to give this blog a formal ending.  Based on the last six weeks, it is definitely on its death bed.

However, I have been recently involved in preparation and a trial of a lawsuit, so I am going to cut myself a little slack. And if you have to try a case in August, Taos, New Mexico is about as nice a venue as you can get.

One of the things that I am just now catching up on was actually announced by the EEOC on my birthday. They have sued Syossett based health network United Health Programs and its parent company, Cost Containment Group, Inc. for religious discrimination. The charge: employees are being forced to participant in what the EEOC calls "religious practices" which are part of a belief system that a family member created called Onionhead. According to the EEOC press release:
Employees were told wear Onionhead buttons, pull Onionhead cards to place near their work stations and keep only dim lighting in the workplace. None of these practices was work-related. When employees opposed taking part in these religious activities or did not participate fully, they were terminated. 
This is an unusual case in a couple of ways. First, the discrimination is in the nature of proselytizing as opposed to the more frequently seen failure to accommodate. But more importantly, it raises an issue that courts have been really reluctant to deal with: what is religion?

Not exactly a new issue as almost ten years ago, I had this post: A Piercing Problem - 1st Cir. Ducks the Real Question, discussing the Cloutier v. Costco  decision, involving the claim by an employee that as a member of the Church of Body Modification she had been discriminated against by not being allowed to wear a facial piercing.

The Court's language then showed the reluctance of courts to venture into this nebulous debate:
Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case.  
Hard to imagine how that question gets dodged in this litigation. See, EEOC Sues United Health Programs of America and Parent Company for Religious Discrimination.

In fact the issues seems to be getting teed up from the git-go, as we would say in East Texas, as defendants have moved to dismiss on the basis that Onionhead is not a religion. In a response, the EEOC says, "What defendants glibly call 'self-improvement workshops' and 'corporate wellness programs' were actually compelled religious activities led by their spiritual adviser, "Denali," and other management in violation of Title VII."  Employment Law 360 has a story on the latest,  EEOC Defends Suit Over Workers Forced to Say 'I Love You.' ($)

I have had relatively few issues involving religious discrimination over the years, but since writing about Cloutier  I have long been curious as to how this question -- what is a religion -- was going to be handled. It looks like we might begin to get an answer in the near future.

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