EEOC v. Abercrombie & Fitch Stores, Inc.

[Really_Not_All_That_Bright]

@Richard_Parker

My question is: Although we know theoretically that someone can assert freedom of conscience claims under Title VII (at least the EEOC thinks so), has it been done successfully?

Seems so.

In November 1979, Townley hired Louis Pelvas as a machinist in its Eloy plant. At that time there were no devotionalservices conducted at the Eloy plant. In December 1982, Townley gave its employees an employee handbook, which stated the company’s policies and rules. Under the heading of company rules, the handbook stated: “All employees are required to attend the non-denominational devotional services each Tuesday. Employees are paid for their time while attending these services.” Pelvas read the handbook and signed a statement agreeing, inter alia, “to abide by all the requirements and policies stated within that handbook, as a condition of my continued employment with Townley . . . . I recognize that failure on my part to keep this agreement may result in my dismissal from the company.” Excerpt of Record, tab 49.

Townley did not institute devotional services at its Eloy plant until April 1984. Pelvas attended the services without complaint only until June 1984, when he asked to be excused from the services because he was an atheist. His supervisor told him that attendance was mandatory. The supervisor also stated that Pelvas could sleep or read the newspaper during the services. Pelvas continued to attend the services, but in October 1984 he filed a religious discrimination charge with theEqual Employment Opportunity Commission. In December 1984, Pelvas left the company. Pelvas states that he was constructively discharged; Townley says that Pelvas refused to accept an offer of transfer to another plant.

<snip>

Any reluctance to apply this teaching is lessened by the nature of the conflict in this case. Both the Townleys and Pelvas seek to pursue a religious practice. Where the practices of employer and employee conflict, as in this case, it is not inappropriate to require the employer, who structures the workplace to a substantial degree, to travel the extra mile in adjusting its free exercise rights, if any, to accommodate the employee’s Title VII rights. 17Link to the text of the note

The transcendent principle in cases of this sort is accommodation. Where the religious practices of employers, such as the Townleys, and employees conflict, Title VII does not, and could not, require individual employers to abandon their religion. Rather, Title VII attempts to reach a mutual accommodation of the conflicting religious practices. This is consistent with the First Amendment’s goal of ensuring religious freedom in a society with many different religions and religious groups.

EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 612 (9th Cir. 1988).

ation.
Young v. Sw. Sav. & Loan Asso., 509 F.2d 140 (5th Cir. 1975) reached a similar conclusion, in very similar circumstances.

ETA: ninja’d on the second one.

[Bricker]

@Richard_Parker

It is emphatically not the case that anyone on the other side of Halbig is going to say “Let’s add words to the law to produce what is thought to be a desirable result!”

Of course they won’t. Few lawyers are stupid enough to say that kind of thing out loud.

[John_Mace]

This is like watching a lawyer light saber battle!

No, seriously, guys this is good stuff. Who knew it was so complicated (although, in retrospect, of course it would be!).

[Richard_Parker]

@Bricker

Of course they won’t. Few lawyers are stupid enough to say that kind of thing out loud.

But, what, four or five justices have in their hearts an idea so stupid that they know better than to utter it?

[Really_Not_All_That_Bright]

@Richard_Parker

Follow-up question: Has the Court ever upheld an atheist’s Title VII claim objecting to a practice that is not explicitly religious? ISTM, that would show true parity, since of course most Title VII claims are objecting to policies that have nothing to do with religion, like A&F’s “Look Policy.”

That brings us back to how the case would arise. ISTM that any such plaintiff would paint the practice as explicitly religious whether or not it actually was.

[Richard_Parker]

@Really_Not_All_That_Bright

That brings us back to how the case would arise. ISTM that any such plaintiff would paint the practice as explicitly religious whether or not it actually was.

Not necessarily. Suppose, as a secular humanist (or something) I have a very strong view that needlessly harming animals is wrong. One of the things my employer asks me to do involves harming animals just to save the company a few bucks. I ask to be put on a different task, explaining my sincerely held belief, and the switch in tasks will not be an undue burden to my employer. I get fired.

In theory, at least, such a claim should prevail under Title VII, as I understand the EEOC’s guidance on how the statute applies to protect non-theological beliefs that are equivalent to religious ones. But I would be curious to know whether it has ever happened.

[Jimmy_Chitwood]

@Richard_Parker

Follow-up question: Has the Court ever upheld an atheist’s Title VII claim objecting to a practice that is not explicitly religious? ISTM, that would show true parity, since of course most Title VII claims are objecting to policies that have nothing to do with religion, like A&F’s “Look Policy.”

I’m reasonably confident that’s a no. Too many outs. Are your beliefs personal, are they political, are they social? Out, out and out.

At least one court has found that even if you express an institutionalized, as-serious-as-religion set of beliefs that come from the god-damned bible, you’re not covered if you say your beliefs aren’t religious.

[Richard_Parker]

The EEOC says “Religious practices may be based on theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views.”

I take that to mean that at least some personal, non-theistic moral beliefs can entitle one to accommodation under Title VII according to the EEOC. And I’d be a little surprised if there’s not precedent at all justifying that view, though it is obviously possible.

[Bricker]

@Richard_Parker

But, what, four or five justices have in their hearts an idea so stupid that they know better than to utter it?

“I know, I know, I’m not promoting it, and I’m not advocating it, you know.”

[Jimmy_Chitwood]

Yeah, maybe somebody knows a case! I don’t think I’d be even a little surprised if not, though. There’s no question it’s the law. But I think in practice a non-theistic belief only takes the force equivalent to a religious belief when it is in opposition to a religious belief.

[Really_Not_All_That_Bright]

@Richard_Parker

The EEOC says “Religious practices may be based on theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views.”

I take that to mean that at least some personal, non-theistic moral beliefs can entitle one to accommodation under Title VII according to the EEOC. And I’d be a little surprised if there’s not precedent at all justifying that view, though it is obviously possible.

There are dozens of federal trial court repeating the EEOC definition without actually discussing the non-religious belief aspect. I couldn’t find a single one actually applying that portion of it, either. The closest thing I found was an EEOC case:

In the instant case, complainant argues that his unconventional beliefs
about cold fusion and other technologies should be viewed as a religion
and therefore protected. Complainant claims he was terminated and denied
the opportunity to be rehired because of religion, which embodies his
cold fusion beliefs. Therefore, under the applicable law noted above,
we find that the agency improperly dismissed complainant’s claim of
discrimination for failure to state a claim.

Accordingly, the agency’s decision dismissing the complainant was improper
and is hereby REVERSED. The complaint is REMANDED for processing in
accordance with the Order below.

[Left_Hand_of_Dorkness]

@Jimmy_Chitwood

Yeah, maybe somebody knows a case! I don’t think I’d be even a little surprised if not, though. There’s no question it’s the law. But I think in practice a non-theistic belief only takes the force equivalent to a religious belief when it is in opposition to a religious belief.

Interesting. Long ago I temped at a research hospital as a secretary, and I was well-liked by the doctors I worked for, and one considered hiring me as a full-time secretary. During the interview, however, he told me he was involved in animal experimentation (I believe he worked for a burn unit, and his experiments involved inflicting third-degree burns on animals in order to test treatment protocols). At the time, I was unwilling to facilitate such work even indirectly–that is, I was unwilling to do logistics or dictation or anything related to these experiments–and I politely told him so during the interview. He told me he understood and cut the interview short. (FWIW, I’m a lot more favorably disposed toward such experiments today–let’s not make the thread about whether my views at the time were legitimate).

Since my views were based on a closely reasoned animal-rights philosophy, would I have had a case? Let’s assume that he could have arranged with the secretary of another physician to handle those duties, giving me additional duties to compensate.

[Richard_Parker]

@Bricker

“I know, I know, I’m not promoting it, and I’m not advocating it, you know.”

Every single justice uses policy and value arguments as reasons for how they “interpret” law when appropriate–especially when they are “making law” as most ordinary people would understand it. Here’s a famous one: “In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” What they do not do is allow personal policy and value judgments to override text that is unambiguous.

I don’t really believe you’re serious that you think Sotomayor’s comments suggest she is willing to override plain statutory meaning in service to her policy preferences.

@Jimmy_Chitwood

Yeah, maybe somebody knows a case! I don’t think I’d be even a little surprised if not, though. There’s no question it’s the law. But I think in practice a non-theistic belief only takes the force equivalent to a religious belief when it is in opposition to a religious belief.

Oh yeah, I wouldn’t be surprised at the near factual impossibility, just surprised that the EEOC would state it so unequivocally without any support in case law. But maybe that’s just how they roll.

[Richard_Parker]

@Left_Hand_of_Dorkness

Since my views were based on a closely reasoned animal-rights philosophy, would I have had a case? Let’s assume that he could have arranged with the secretary of another physician to handle those duties, giving me additional duties to compensate.

The EEOC thinks there is a dividing line between “non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views” and “[s]ocial, political, or economic philosophies, as well as mere personal preferences, [that] are not ‘religious’ beliefs.” The former are characterized by being “based on a theory of ‘man’s nature or his place in the Universe’.”

In practice, I suspect any belief in the first category that is not a belief about traditional religious practices will be successfully characterized as being a belief falling into the second category.

[Really_Not_All_That_Bright]

@Left_Hand_of_Dorkness

Since my views were based on a closely reasoned animal-rights philosophy, would I have had a case? Let’s assume that he could have arranged with the secretary of another physician to handle those duties, giving me additional duties to compensate.

Assuming that your views would have been protected under Title VII, it probably depends on how many of your duties would have been swapped. An employer does not have to make unreasonable accommodations.

[Jimmy_Chitwood]

I absolutely believe that you should have a case, LHoD, not just out of a sense of justice but also based on what the law says. But I think if it ended up in federal court, it would result in a long opinion somehow concluding that your beliefs, while sincere, were closer to your own personal preferences than comparable to religious beliefs in some ineffable way.

@Richard_Parker

Oh yeah, I wouldn’t be surprised at the near factual impossibility, just surprised that the EEOC would state it so unequivocally without any support in case law. But maybe that’s just how they roll.

In my experience, it is. They pretty routinely just give the FEPAs, the state agencies that do most of the front-line work enforcing state & federal anti-discrimination statutes, their own gloss on developing trends, and then try to litigate based on that interpretation as needed. Sexual orientation, for instance, is essentially already federally protected at the administrative level, even though it isn’t.

[Oakminster]

Well, I guess I’ll fire off an application to some corporation, wear my ROLL TIDE sweatshirt to the interview, and tell them they better hire me or I’ll sue their ass for disrepecting my religious practice of SEC Footballism.

[Jimmy_Chitwood]

Just poison their trees.

[John_Mace]

@Bricker

“I know, I know, I’m not promoting it, and I’m not advocating it, you know.”

Are you going to let the rest of us in on your lawyer in-joke?

[Really_Not_All_That_Bright]

Before she was a JSCOTUS, Sonia Sotomayor commented that “the court of appeals is where policy is made,” appearing to suggest she thought appellate judges were in the business of making policy (rather than the legislatures.) In context, it’s obvious that she didn’t mean it was her job to usurp the role of the legislature but the right-wing blogosphere had a field day with the shortened quote.