Tuesday, October 7, 2014
Workplace Law Prof Blog, Supreme Court Grants Cert in EEOC v. Abercrombie & Fitch
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
A "look policy"? For details of the policy and past sex discrimination claims, see Abercrombie & Fitch's Absurd Dress code is Going All the Way to the Supreme Court
Saturday, October 4, 2014
Jeffrey Toobin, New Yorker, On Hobby Lobby, Justice Ginsburg was Right
In Hobby Lobby, a narrow five-to-four majority of the Court held that the Religious Freedom Restoration Act of 1993 gave the proprietors of a chain of retail craft stores the right to exempt themselves from certain provisions of the Affordable Care Act. Specifically, the A.C.A. requires firms with more than fifty employees to provide insurance that includes birth-control coverage, or else pay a fine. There was an exemption already for religious institutions. Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ” Ginsburg, though, wondered where the guidance was for the lower courts when faced with similar claims from employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).
The exchange between the two Justices gets to the heart of the issue in Hobby Lobby. When do religious convictions allow individuals (or corporations) to excuse themselves from obligations that are binding on everyone else?
A sampling of court actions since Hobby Lobby suggests that Ginsburg has the better of the argument. She was right: the decision is opening the door for the religiously observant to claim privileges that are not available to anyone else.
Monday, September 29, 2014
Corey Ciocchetti, Denver (Business School), has uploaded to SSRN "Religious Freedom and Closely Held Corporations: The Hobby Lobby Case and Its Ethical Implications." The abstract reads:
Hobby Lobby and its quest for religious freedom captured the attention of a nation for a few moments in late June 2014. The country homed in on the Supreme Court as the justices weighed the rights of an incorporated, profit-making entity run by devout individuals that objected to particular entitlements granted to women under the Affordable Care Act. The case raised important legal issues such as whether the law allows for-profit corporations to exercise religion (yes!) and whether protection for religious freedom trumps the rights of third parties to cost free preventive care (sort of!). The Supreme Court’s decision also brought to light some major ethical dilemmas such as: (1) whether the government has the right to second-guess a person’s religious beliefs, (2) when do religious beliefs become too attenuated from the actions they oppose to truly pose a burden on religion and (3) whether religion can only be experienced by human beings. Though the lawyers will move on to the next legal challenge, Americans in general must continue to grapple with these ethical dilemmas as citizens of a society needing to find the appropriate balance between religious freedom and improving public heath.
This article attempts to answer some of these questions by evaluating the Hobby Lobby case from many different angles. Part II recounts the stories underlying the legal challenge. These stories, often-neglected in law review articles and judicial opinions, when told in depth add context and nuance to the case and help bring to life topics that seem boring if analyzed purely in legalese. For example, the Greens tell a story of a family who consider their work at Hobby Lobby to fulfill their calling from God. They sincerely believe they are expected to practice their religion at work even if it costs the corporation, and themselves personally, a great deal of money. The federal government tells the story of a nation in desperate need of better and less expensive health care options -- particularly for women. The government claims that women need cost-free preventive care (and particularly cost-free contraceptives) in order to improve their health and reduce unwanted pregnancies. Better access to contraceptives will also give women more power to control their reproductive lives and compete more effectively in the workplace. Part II brings these litigants to life and sets the stage for a discussion of the law in Part III and the application of the law to these parties in Part IV.
More specifically, Part III synthesizes the state of the law surrounding religious freedom and preventive health care at the time the Hobby Lobby case hit the Supreme Court. The article recounts the history of religious freedom in America and how this concept worked its way into the first words of the First Amendment and eventually into the very broadly protective Religious Freedom Restoration Act. This part ends with an evaluation of the ACA’s contraceptive mandate and its requirements regarding access to cost free preventive care for women.
Part IV evaluates the court decisions in the Hobby Lobby case. The discussion begins with the District Court’s denial of Hobby Lobby’s request that mandate be stayed and ends with the Supreme Court’s decision issued on the last day of its October 2013 term. All in all, the discussion moves with the case from a federal district court (where Hobby Lobby asked for a preliminary injunction) to the Tenth Circuit Court of appeals (where that decision was affirmed) to the United States Supreme Court (where Hobby Lobby’s appeal was summarily denied) back to the Circuit Court sitting en banc (where the district court was urged to issue the preliminary injunction) back to the district court (where the judge reversed himself and issued the injunction) and finally to the Supreme Court (where Hobby Lobby emerged victorious). This part summarizes the lower court decisions and evaluates the Supreme Court decision in detail, section by section.
Part V, the final substantive part of the article, begins with the statement that the Court reached the correct legal decision in the case considering: (1) the important place religious exercise holds in the fabric of America, today and historically, (2) the broad brush with which Congress painted RFRA and (3) the fact that Hobby Lobby’s employees will still receive all twenty FDA-approved contraceptives at no cost. The discussion then moves to the ethical issues spun off by the Supreme Court decision. The three ethical dilemmas chosen for analysis revolve around the questions of whether corporations can exercise religion, whether it is ethical for religion to trump third party rights and whether governments have any business analyzing the beliefs of a religious adherent in order to better craft public policy.
The article concludes with a call for further research into potential answers to these and other ethical dilemmas keeping in mind that Hobby Lobby is just the first shoe to drop in the fight between religious freedom and parts of the Affordable Care Act.
Thursday, September 25, 2014
Shagufta Omar, International Islamic University, has uploaded to SSRN Marriage in Islam. The abstract reads:
The institution of family occupies a highly important position in Islam. Besides regulating human marital relations it plays a key role in the development and progression of a well-entrenched social order. It considers this relationship a sacrament social contract between two independent and pubescent persons and introduces checks and balances to protect and secure the rights of all stakeholders in this matter - husband, wife, children and the society large. Unlike certain other religions, Islam however does not regard marriage above dissolution and gives this right to both the spouses. According men and women equal social, legal and moral status as human beings, Islam differentiates between their status, roles and responsibilities in the family system, based on equity and justice. However, the true spirit of role differentiation is misunderstood by non Muslims as well as by less informed Muslims as establishing the patriarchal system endorsing gender equality and discrimination against women.
Tuesday, August 26, 2014
From the Catholic Online:
In a culture where freedom has been redefined as a right to choose anything and liberty has degenerated into license, the newspeak of the age has declared the instrumental use of the body of another to be sexual freedom. It is not freedom. It turns people into objects of use and degrades the dignity of human sexuality.
Sadly, the same spirit of the age fails to recognize the integral unity of the human person, body, soul and spirit, and has turned the human body into a machine with parts which the revolutionaries think can simply be interchanged. Removal of genitals and attachment of artificially constructed ones which are absolutely incapable of ovulation or conception, does not change the structure of reality. The removal constitutes mutilation and the construction of artificial organs with no reproductive function does not alter the gender or sex of the person.
Thursday, July 31, 2014
We previously posted about the religious exemption from Title IX granted to a religious school over dormitory housing for a transgender student. The school is run by the Quakers, but the Quaker leaders don't agree that on what their religion holds. Debate Over Transgender Student Reveals Division in Quaker Church
Saturday, July 19, 2014
The US Department of Education (ED) recently granted George Fox University (GFU) a religious exemption from Title IX to, effectively granting the institution permission to discriminate against transgender student Jayce M. while he was pushing the administration to assign him to a male dormitory on campus.
Friday, May 30, 2014
So, a couple of days ago, Pope Francis had said that it may be possible, in the future, for the Catholic Church to openly accept married priests. Here's some elaboration about that issue from the Catholic Reporter:
- One, while a married priesthood is often seen as part of the "liberal" agenda for reform that includes ordaining women priests and overturning teachings on homosexuality and birth control, it's not. In fact, church officials across the spectrum periodically raise the option of married priests -- while keeping celibacy as the norm -- but they often do so in private.
- Two, because celibacy is a matter of law and tradition, not doctrine or dogma, it can be debated or even changed without signaling that the entire edifice of church teaching is about to crumble. Such a reform would be a pragmatic way of addressing a pastoral problem, and it has received a boost from none other than Pope Emeritus Benedict XVI, a favorite of conservatives, who allowed some married Anglican clergy to become Catholic priests.
- Three, Francis has framed the celibacy reform as one that should emerge from a local context, which reinforces his goal of decentralizing power and authority in the church. Celibacy could be a useful means of solving a problem while promoting collegiality and the idea of organic change in Catholicism.
Friday, May 2, 2014
CHARLOTTE, N.C. - A coalition of clergy members is challenging North Carolina's constitutional ban on gay marriage with an unusual approach in a federal lawsuit: They say it violates their religious freedom.
The clergy members said in the lawsuit filed Monday that they'd like to perform same-sex marriage ceremonies in their congregations, but they can't because of the "unjust law."
Wednesday, April 2, 2014
She used to wear a burqa in public, but now has had her face printed on thousands of ballot pamphlets for the provincial council in Wardak. She campaigns in person in a district, Saydabad, that is thick with Taliban.
The woman in question is 28 year-old Mariam Wardak's mother, who is running for public office in Afghanistan. More:
There is finally the sense here, after years of international aid and effort geared toward improving Afghan’s women’s lives, that women have become a significant part of Afghan political life, if not a powerful one.
On the other hand:
But their celebratory moment is also colored by the worry that those gains could so easily be reversed if extremists come back into power, or if Western aid dwindles. Those concerns have added urgency to this campaign season for women who are fighting to make their leadership more acceptable in a still deeply repressive society.
Friday, March 28, 2014
A timely article by Toni Massaro has been uploaded. Its titled "Nuts and Seeds: Disclosure of Religious Exemptions" and its abstract reads:
Closely watched cases pending before the United States Supreme Court address whether for-profit businesses may claim a statutory or constitutional right to an exemption from general laws that burden religious expression. These cases are part of a wider trend of expanded constitutional rights for for-profit actors, and of increased judicial and legislative sympathy for exemption requests by religious actors.
This Article offers a first look at steps government might take if the current trend continues, and if more exemption requests for commercial actors are allowed. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions, without unduly burdening the exempted commercial religious actors. It examines in particular an “exemption-subject-to-notice” option, under which exempted commercial actors would be required to provide notice to adversely affected third parties, or be subject to government-provided notice of their non-compliance. The Article concludes that a notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a “third way” for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.
Tuesday, March 25, 2014
The U.S. Supreme Court hears argument in the contraceptive mandate cases today. Lots of good reading on the case and its far-reaching implications.
Lots of good questions being asked out there. Why is religion always in opposition to women's rights? Why does gender discrimination seem more palatable than race -- What if employers refused health insurance coverage for black employees? And how did we get to this place of inserting our employers into our private health decisions?
Wednesday, February 26, 2014
From Arizona, Rev. Elizabeth Rambikur of First United Methodist Church Tucson responds to SB 1062 and HB 2153--the law that permits businesses to discriminate against gay patrons:
Our call as human beings, made in the image of God, is “You shall love the Lord your God with all your heart, and with all your soul, and with all your might” (Deuteronomy 6:5) and Jesus reminds those who would strive for the title of Christian that the second commandment is, “you shall love your neighbor as yourself” (Matthew 22:38). The teachings of Jesus remind us that there is no law greater than the love of God and the love of ones neighbor as the self. It is here that all law — whether perceived as given by God or written by human beings - must begin.
In the most basic way Arizona SB 1062 and HB 2153 prohibit the full practice of Christianity because the fundamental teaching of love by Jesus Christ is violated when we practice discrimination against others. The United Methodist Church has shaped its discipline and faith practices through the crucible of the human rights movements of the last 231 years, as we have moved beyond slavery, beyond discrimination against women, past discrimination based on race, and beyond the denial of access to differently abled people. There is no question that the practice of discrimination is a violation of our faith as Christians....
And Michael Sean Winters wrote an editorial in the National Catholic Reporter:
...those who support this Arizona law must be challenged to explain why the “Selma analogy” is not apt....[M[any people in this vast country have sincerely held religious beliefs that are destructive of what I like to call the commonhealth of the nation, specifically the moral health of the nation. Bishops, of all people, should be aware of this.
How much stronger the Arizona bishops statement would be if they had coupled their support for the law with a clear statement that no Catholic businessman or businesswoman should claim warrant in the Gospels or the teachings of the Church for discriminating against gays. Instead, once again, we have aligned our preaching of the Gospel with a political agenda that is championed by hateful bigots.
And the essay concludes with what I think is a great rhetorical question:
And, then we wonder why young people want nothing to do with us? When bishops gather to bemoan the secularization of our society, they should start by looking in the mirror. If the face of Christianity is an angry hotelier who wants to place a “straights only” sign outside his inn, then we have no one but ourselves to blame for the decline of Christian faith.
Sunday, February 23, 2014
Religionists deserve to practice their faiths, and the Constitution protects their right to do so. If there ever comes a day when state authorities will prohibit Christian fundamentalists from congregating in their churches and their homes for worship service, I will proudly be the first liberal to fight such encroachment against their religious rights.
On the other hand, no religious group has the constitutional authority to enact hate against another group. The Arizona bill permits private businesses to refuse services to gay consumers. These business owners, I am sure, are good people, people who are responsible citizens in their neighborhoods.
And that's what worries me. The thugs and the bullies and homophobic murderers are partly inspired by the legitimized hatred from the good citizens, from the store owners, from the legislators, and from the governors.
Senator John McCain has excoriated Russia for its homophobia; I hope that good man also shows the same courage in his own home state.
Arizona..... don't sell out your humanity.
Saturday, February 15, 2014
From my colleague, Will Huhn, Associate Director of the Constsitutional Law Center at Akron, one of four national centers established by Congress.
In the name of defending religious freedom, the Kansas House recently adopted a statute that would authorize any person or business to refuse service, employment, or employment benefits to same-sex couples. Is it constitutional?
[N]otice that the protection extends to "sincerely held religious beliefs ... regarding sex or gender." Not sexual orientation, but "sex or gender." It is difficult to believe that this law was written to justify gender discrimination, but that is how it is written. In fact, the word "sex" is also ambiguous. Is the law speaking of "sex roles" or "sexual acts"? Is it meant to protect "sincere religious beliefs" regarding the proper roles of men and women or proper and improper modes of consensual sexual conduct? ....
If the qualifying phrase relates solely to "employment benefits" then the scope of the law is very broad indeed, permitting gender discrimination across the board by individuals and private businesses in terms of whom they serve and whom they employ, so long as the person or business holds a "sincere religious belief" that persons of that gender are not supposed to engage in certain conduct or have certain privileges.
Sunday, February 9, 2014
The story from the Hindu Times:
The death of an ailing woman student at a Saudi university has stirred controversy on social media after an ambulance was denied access under the conservative Muslim kingdom's segregation laws. Amna Bawazeer, 24, died of a heart attack in the compound of the social sciences faculty of Riyadh's King Saud University.
Local media said medics in an ambulance were denied access because they were not accompanied by a "mahram", a legal guardian or male member of her family.
Monday, February 3, 2014
Caroline Mala Corbin at U of Miami has uploaded Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions. A longer version is available here. The abstract reads:
One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”
This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
Thursday, January 30, 2014
The University of Notre Dame really, really, really wants in on the Hobby Lobby action to block its health insurance company from covering employees' and students' "immoral" contraception. WSJ, Notre Dame Revives Bid for Injunction over Contraception.
Saturday, January 25, 2014
The Pope "expressed a desire for women to become more involved in the Catholic Church. Recalling the 'indispensable role' of women in society, Francis said he has been pleased to see women sharing pastoral responsibilities with priests and families, adding he wants women to take on a role that is 'more capillary and incisive' in the Church. In the address, Francis praised women for their "gifts of delicacy,' including a 'special sensitivity and tenderness.'"
"Capillary"? women should be more like small vessels connecthing the ateries and veins of the church??
Friday, January 24, 2014
Or, something like that, according to Rep. Steve Pearce (R--N.M.). Rep. Pearce appears to be a fringe member of the GOP and I have little interest in his views. But rummaging about the archives of the Times, I did find this 1998 statement of beliefs by the Southern Baptist Convention--an organization had almost 16 million members then and counted Bill Clinton and Al Gore among them.
1998. That wasn't too long ago. The statement, paraphrased by the Times, says that the wife ''submit herself graciously'' to her husband's leadership and that a husband should ''provide for, protect and lead his family.''
Roman Catholic bishops in the United States, in a pastoral message on family life four years ago, said marital roles, although different, should be characterized by ''mutual submission'' of a husband and wife to each other.