Religion and the Law

EEOC: Employers Can't Require a Note from Your Rabbi …

... as a condition of giving you a reasonable religious accommodation; quite right, I think, under Title VII religious accommodation principles.

|The Volokh Conspiracy |

From yesterday's EEOC press release:

Center One, LLC, a Buffalo, N.Y.-based call center company with operations in Pennsylvania and New York, violated federal law by refusing to provide religious accommodations for an employee's religious observance, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

According to the EEOC's lawsuit, in October 2016, a call center employee at Center One's Beaver Falls, Pa., location, who is an adherent of Messianic Judaism, sought a reasonable accommodation of his religious beliefs and practice that he abstain from work on days of religious observance. The lawsuit states that Center One imposed disciplinary points against the Messianic Jewish employee for his absences in observance of Rosh Hashanah and Yom Kippur. Center One required that the employee provide a certification from a religious leader or religious organization "on letterhead" as a precondition of granting him time off as a reasonable accommodation and imposed disciplinary points against the Messianic Jewish employee for his absences in observance of those religious holidays, the EEOC said.

The Messianic Jewish employee was not a member of a congregation at the time of his requests, but supplied other documents supporting his need for the religious accommodation. The EEOC charged that Center One wrongfully persisted in its demand that the employee provide certification from a religious leader or organization and forbade the employee from taking any additional days off for upcoming religious holidays. The employee was compelled to resign due to Center One's refusal to accommodate his sincerely held religious beliefs, according to the suit.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination and mandates that employers provide reasonable accommodations, such as excused absences, for the sincerely held religious beliefs and practices of their employees unless it would pose an undue hardship. The EEOC filed suit (EEOC v. Center One, LLC, Civil Action No. 2:19-cv-01242) in U.S. District Court for the Western District of Pennsylvania, after first attempting to reach a prelitigation settlement through its conciliation process.

One can dispute whether employment law should require employers to exempt religious objectors from various generally applicable job duties (such as the requirement to show up each weekday). But Title VII does impose such a requirement, at least when the accommodation isn't an "undue hardship" to the employer; and that requirement can't turn on whether one belongs to an established religious congregation. (See my post on The Individualistic American Law of Religious Exemptions for more.)

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  1. It does bring up a point I’ve often wondered about: the way the government is dividing special protections and benefits into ever more classes, at what point will people start reclassifying themselves just to get those special protections and benefits?

    Identify as a certain Indian tribe to have legal peyote.

    Identify as a member of some small sect to get a day off which coincides with your birthday.

    Identify as some particular religion to get real fruits and veggies in jail.

    How much proof will be necessary? The Indian tribe is probably harder to self-identify with, but how many drops of blood is necessary?

    1. “It does bring up a point I’ve often wondered about: the way the government is dividing special protections and benefits into ever more classes, at what point will people start reclassifying themselves just to get those special protections and benefits?”

      Good point!

      — Rev. Kirkland (Congregation Of Exalted Reason)

    2. How many? If you are ‘identifying’ then none is enough: You just claim it.

      Apparently we cannot require independent confirmation of feelz…

      1. Yup.
        Just like “substantial burden” is whatever you say it is.

  2. The position that (1) an employer generally must (or must try to) excuse a religious claimant who wishes to avoid a job’s standard requirements while (2) that employer can fire a gay employee (who is prepared to do the job as normally assigned) for being gay seems a loser, and objectionable, in today’s (and tomorrow’s) America. But that seems to be where one side of the culture war is determined to aim.

    1. I do wonder what percentage of the populace believes both that (1) an employer must (at least try to) exempt a religious claimant from a job’s standard requirements conflicting with the claimant’s religion AND (2) that an employer can fire someone for being gay.

      I suspect that most people fall in one of two categories.

      The first category, statists, would promote laws that require a private employer to make “reasonable accommodations” for religious beliefs AND that would prohibit an employer firing an employee for being gay.

      The second category, individual rights supporters, would promote laws that insure that private employers could hire/fire/retain employees based on their religious practices or sexual orientation just as they are allowed to choose to associate, or not, with people in their non-commercial life based on those same criteria.

      1. How many people endorse the Republican Party platform or standard current conservative thinking?

      2. I do wonder what percentage of the populace believes both that (1) an employer must (at least try to) exempt a religious claimant from a job’s standard requirements conflicting with the claimant’s religion AND (2) that an employer can fire someone for being gay.

        The Republican party is in favor of non-discrimination protections for religion, and expanding “religious liberty” thus making it even harder to hold religious folk to the same standards as everyone else.

        At the same time, the Republican party is against non-discrimination protections for sexual orientation, along with a host of other gay-related rights.

        So a typical Republican. About 30% of the population.

        1. 30 percent . . . and declining as our electorate improves.

  3. The challenge is discerning the difference, if any, between what the person claims is a religious observance and what the person wants to do for non-religious purposes.
    If I decide that I want to have days off, and I invent a religion which coincidentally considers the days I don’t want to work as holy days of observance, should that be taken seriously as a religious observance?
    (Ditto for refraining from certain tasks for “religious purposes”. Can I be fired for sleeping on the job if I claim that I was communing with the mystic Sleep Gods in a religious ceremony? Can I get an exemption from any employer rule, or law, by claiming God told me I had to?

  4. And all the goyim say, I’m pretty fly
    (For a rabbi)…

    When he’s doing a Bar Mitzvah, now that you shouldn’t miss
    He’ll always schlep on down for a wedding or a bris
    They say, he’s got a lot of chutzpah, he’s really quite hip
    The parents pay the mohel and he gets to keep the tip

    https://www.youtube.com/watch?v=usPkL2EQPYo

    1. How do you circumcise a whale?

      1. With a BIG knife.

      2. No.

        You send down four skin divers.

  5. It seems the courts have this one backward.

    Private employers have to observe religious *nondiscrimination,* so if they’re not trying to discriminate the government should give them a break, not micromanage other people’s companies and say which rules should apply to everyone and which rules shouldn’t.

    On the other hand, the government itself is required to respect the “free exercise” of religion, with no proviso that “as long as you do it to everyone else it’s OK.” Yet the courts say there’s generally no *constitutional* right to a religious exemption if there’s no discriminatory intent.

    RFRAs are a good stopgap to enforce the First Amendment until the courts get around to doing so, but these laws don’t cover every state and keep getting attacked and undermined.

    And as long as we’re talking about “the same people who etc,” the same federal government which said clothing stores couldn’t have nondiscriminatory dress codes enforced against their Muslim employees also said (at least until recently) that there should only be narrow if any exemptions for the Little Sisters of the Poor.

    1. Eddy: It’s not the courts — it’s Congress. In 1972, Congress amended Title VII to require private employers to exempt religious objectors from generally applicable work rules, so long as that can be done without “undue hardship.” Like it or not, but that’s where the decision was made.

      1. Oops, my mistake. That’s OK, it’s not like the Internet is forever, right?

    2. Zero sum game. Somebody has to cover the work, and once one employee begs off, the other employees get stuck.

      Many years ago I was applying for a medical residency. At a group information and question/answer session of the applying candidates, one hand goes up and asks about the sabbath program he had heard of through the grapevine. The now uncomfortable appearing program director noncommitally answered that accommodations could happen on a case by case basis. After assessing the names of many of my peer applicants in the room, and noting dining habits of the group at lunch, I and several other candidates didn’t bother to finish the rest of the interview day.
      At least full disclosure of the terms of our potential employment had been revealed when one candidate apparently broke the code and revealed the fate of those of us who simply like Friday nights and Saturdays for relaxation.

  6. So when George Kastanza claims that his employer needs to accommodate his families belief system, Mr Kruger had no right to question this novel ‘religionn’, and was required to accept it uncritically.

    1. “Boss, I need Sabbaths off, for religious reasons.” Mike said, while munching on his delicious bacon-cheeseburger.

      I’m in-house, and my suspicion is that about 75% of the requests our employees ask for are bogus. But since accommodating them is almost always easy or not-too-much-of-a-pain-in-the-ass.

      I have been expecting to encounter–but, thankfully, have not yet–multiple requests from one person asking for (for example) days off for Jewish beliefs and also days off for, say, Muslim or Christian beliefs. (I know lots of blended families where two religions are practiced with the kids, so I know for sure there are lots of people who believe in parts of one religion and other parts of a quite different religion. I, personally, have taken in many Buddhist beliefs, in addition to the religion I was exposed to in my family.

      Eugene, anything in the statues or caselaw that says I must limit oneself to one particular religion or another–in terms of asking for religious accommodations? I do not think it does. . . My casual search does not reveal anything. But this is a subject you know in-depth, so you might have a more-definitive answer to this.

      1. As you and other commuters note, accommodation on the part of the employer is often relatively easy. Simply assign the Saturday work to someone who may value that day off equally, but who simply erred in calling that particular day of week Saturday, when the magic word to ensure getting the day off was ‘Sabbath’.
        Easy for the employer, because it is the employee onto whom the burden is shifted. EEOC defines minimal-ness of the burden not based on who bears the burden.

      2. The limitation is that the belief must be sincerely held. Courts are not allowed to inquire into the substance of a person’s beliefs, but they are allowed to inquire into the sincerity of those beliefs. So it can’t say “You don’t need Chanukah off because the Shulchan Aruch says it’s OK to work on Chanukah”, but it can say “You don’t need Chanukah off because you don’t really believe it’s wrong to work on Chanukah, as evidenced by this photo of you mowing your lawn, with a lit menorah in the background”.

  7. I think that there is an issue with individuals faking religious beliefs for convenience, and tend to be skeptical of made-up religions with remarkably convenient practices. But I doubt that is an issue here. The religion involved, arguably the earliest form of Christianity, is hardly novel.

    1. Actually, “Messianic Judaism,” if it’s what I think it is – “Jews for Jesus” – is fairly novel, not to say fraudulent.

      1. A man can identify as a woman, but a Jew can’t identify as a Christian.

        1. A Jew can become a Christian, but then he’s not a Jew any more.

          1. Can’t he be religion-fluid?

          2. Well he can, so long as you’re distinguishing between religion, culture and ethnicity.

      2. Sure, every religion other than ones own is a fraudulent made-up religion. But if the Religion Clauses and related statutes only protect what judges consider true religion and not false and fraudulent religion, the text would read the opposite of what it says.

        There is a difference between a person believing in something false (or something I or you believes is false) and a person pretending to believe in something they don’t actually believe. The Religion Clauses protecr the first but not the second.

        1. “if the Religion Clauses and related statutes only protect what judges consider true religion and not false and fraudulent religion”

          The employer here is deferring to an authority. The employer doesn’t know what is required of religious Jews, and is asking for confirmation from someone who does. Presumably, this is not too different from requesting clarification from religious authorities for any other religion. When Pastafarians start asking for accommodations, or Church of the subGenius starts, or whatever, the employer should be safe in consulting whatever authorities exist on the religion in question.

          The court has decided that conferring with authorities must be done on the employer’s time and dime, rather than on the employee’s. They can still refer to, and defer to, a rabbi about what is valid accommodation to Jewish practice, they just can’t make the employee fetch the information for them.

          1. IANAL, is it not the case that the company would need to make the accommodation regardless of what the authority said (and irrespective of who’s dime?). The critical factor being the claimant’s sincerely held belief…

            1. The claimant is the one making the claim; therefore they have the burden of proof to show that their “sincerely held belief” must be accommodated.

              1. Didn’t the EEOC just rule otherwise?

                1. No, it didn’t. It just said the employer can’t ignore the proof the employee provided and insist on the one form of proof that the employee can’t provide.

          2. Jmale is correct. It doesn’t matter what is required of religious Jews; the only thing that matters here is what the employee’s own sincerely held beliefs require. So no, the employer can’t refer to, let alone defer to, a rabbi about what is valid accommodation to Jewish practice, because the employee believes what he believes, not what some rabbi says “religious Jews” believe.

            The problem here is that the employer has a procedure to deal with this sort of request, which works fine for most people, but not here.

            In any case like this the employee has to demonstrate that he sincerely holds certainly beliefs, and what those beliefs are. Now if he were a follower of an established religion of some sort, a member of a synagogue or church that all hold the same beliefs, then he could easily make that demonstration by submitting a letter from his clergyman, stating that he personally knows him to be a follower of his religion, which requires such and such. So it’s perfectly reasonable for the company to ask for such a letter.

            The problem arises when, as in this case, the employee says he can’t provide it because he isn’t a member of any church, and has no clergyman who can give such a reference. The onus is still on the employee to provide some other form of proof, which he did, but the employer refused to accept it.

        2. I don’t claim that their beliefs are any more or less valid than those of other Christians, just that the name is fraudulent. Christians aren’t Jews, by definition.

          “Jews for Jesus” is like “Catholics for Zeus.”

          1. “Jews for Jesus” is like “Catholics for Zeus.”’

            If you think Catholic paganism is a contradiction in terms, check out the current Amazon Synod.

          2. What makes Jews for Jesus and other Messianic Jews frauds is not that they have beliefs antithetical to Judaism¹ — a Jew can go astray and hold such unJewish beliefs — but that the vast majority were never Jews to begin with, even before they adopted such beliefs. They pretend to be Jews who have seen the light (so to speak), but that’s for the purpose of proselytizing. Most of them are Christians pretending to be Jews who have seen the light.

            ¹It’s not merely that Christians and Jews disagree on the identity of the messiah, but on the nature of the messiah. The Jewish messiah is just a man, not the son of god or a 33⅓% part of god or anything like that.

      3. If you know anything about the debates in the early Christian church about weather to convert the gentiles, and if they had to follow the Mosiac law, it’s not actually a new thing. The first converts to Christianity were Jews who still practiced circumcision and dietary laws, but after Paul started to convert the gentiles and much internal debate about how Christ threw about a bunch of rules but simultaneous said he were there to fulfill the law, it wasn’t required for Christians follow those rules anymore. Today, Christians kinda pick and choose Old Testament stuff, depending on the denomination, which is a relic of Martin Luther.

        Jews for Jesus, then, is just a throwback to the first Christians, whereas they believe (sincerely I might add) that you still have to follow the old law, and that Jesus is the messiah, which Jews say they are still waiting for.

        1. The key question for those early Christians (potentially limiting conversions) was whether or not adults who wished to convert to Jesus’ flock had to submit to circumcision. Not a big deal to the Jews, who were circumcized in infancy, but a potential deal-breaker for the men who weren’t (recall that anesthesia hadn’t been invented yet.)
          Had they demanded full adherence to the Mosaic law, Christianity would be a fringe sect today, if not extinct entirely.

  8. How many times are the more commentators here going to make the reductio ad absurdum fallacy mistake in this thread. I count at least 8 times thus far.

  9. they believe (sincerely I might add) … that Jesus is the messiah, which Jews say they are still waiting for.

    Which is why they are not Jews.

    1. If tomorrow in Tel Aviv, a man clothed in radiant white showed up and was acknowledged by everyone over there who is a Jew as the Messiah, would they cease to be Jews?

      They were “normal” Jews who believe that Jesus is the Messiah, and unlike, say, Presbyterians, they still follow the old law. The description is apt.

      1. If someone believes Jesus is the messiah in the Jewish sense, i.e. a normal human being who originally came to free Israel from Roman rule, and though he failed to do so the first time around he will one day return, turn Israel into a religious kingdom, and make it truly independent (i.e. not a vassal of the USA) and secure, after which he will grow old and eventually die and leave the throne to his son, that person’s beliefs are compatible with Judaism. But if by “messiah” he means a god, or part of a god, or any other kind of supernatural being, to whom it is appropriate to pray and whose job is to get people who believe in him out of Hell, then it doesn’t matter whether he thinks that is Jesus or Bob the Builder, his beliefs are not compatible with Judaism.

  10. The College Board, which administers the SAT, has required a letter from a rabbi in order to be able to take the test on Sunday, since at least 1988 (when I arrived in the USA) and until now. My son had to get one a few months ago. Should we sic the EEOC on them?

    1. Probably not the EEOC, but you could probably win a lawsuit, and then they would probably respond by just saying “okay, we offer on two days, choose one” without requiring a letter.

      Whether you should follow that path is between you and your moral authority. Whether that moral authority provides a written statement is up to you.

      1. ” they would probably respond by just saying “okay, we offer on two days, choose one” without requiring a letter.”

        They’ve been doing THAT since the 1980’s, at least. SATs are offered 4 times a year.

    2. It’s fine for them to ask for such a letter, as the easiest way to prove that your son’s sincere beliefs prevent him from taking the test on a Saturday, so long as they’re also willing to accept other forms of proof.

      Suppose you had to prove you were disabled. You could do it by providing a letter from a doctor. Or you could prove it by removing your prosthetic legs. The employer in this case was in the position of saying “I don’t care that you have no legs, if you can’t produce a doctor letter you’re not disabled”.

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