Welcome to the Liberty Insider.
00:00:27.22\00:00:29.26
This is a program
bringing your news, views,
00:00:29.29\00:00:31.33
discussion, analysis,
and everything up-to-date
00:00:31.36\00:00:34.53
that you need to know about
religious liberty developments
00:00:34.56\00:00:38.57
in the U.S and around the world.
00:00:38.60\00:00:40.07
My name is Lincoln Steed,
editor of Liberty Magazine,
00:00:40.10\00:00:44.57
and my guest on the
program is Bruce Cameron.
00:00:44.61\00:00:47.11
Professor Bruce
Cameron, law professor
00:00:47.14\00:00:49.11
at Regent University in
Virginia Beach, Maryland,
00:00:49.14\00:00:53.15
not Maryland,
Virginia Beach, Virginia.
00:00:53.18\00:00:57.89
Let's not discuss
geography here today.
00:00:57.92\00:01:03.02
I happened to be from Australia
which I think is down south.
00:01:03.06\00:01:08.06
But let's talk about a
very important case recently,
00:01:08.10\00:01:12.93
a case involving
Abercrombie and Fitch,
00:01:12.97\00:01:15.67
and a young woman Samantha
that needed accommodation
00:01:15.70\00:01:20.64
and it took quite a legal battle
00:01:20.68\00:01:22.64
before the court
sort her way, right?
00:01:22.68\00:01:26.21
What was really at
play? What was going on?
00:01:26.25\00:01:28.52
Well, Abercrombie and Fitch
00:01:28.55\00:01:30.22
as you may know
is a clothes retailer
00:01:30.25\00:01:32.52
and they have
among their sales staff
00:01:32.55\00:01:34.66
a look policy, that is,
they want their sales staff
00:01:34.69\00:01:39.33
to have a specific look...
00:01:39.36\00:01:41.36
Which is not
unusual, many businesses
00:01:41.40\00:01:44.27
have this sort of a
corporate look, don't they?
00:01:44.30\00:01:46.97
Dress code,
kind of thing, right.
00:01:47.00\00:01:49.60
And so Samantha
Eloff was a Muslim
00:01:49.64\00:01:53.98
and she wore a head scarf.
00:01:54.01\00:01:56.71
And when she interviewed,
00:01:56.75\00:01:58.75
the Abercrombie and
Fitch interviewer wasn't sure
00:01:58.78\00:02:02.12
why she wore the head scarf,
didn't ask her, it wasn't black
00:02:02.15\00:02:08.02
and so it could
just be a style thing.
00:02:08.06\00:02:11.39
So the interviewer
asked the supervisor,
00:02:11.43\00:02:15.73
what about this
and the thought was
00:02:15.76\00:02:20.00
that they believe
she was wearing it
00:02:20.04\00:02:22.60
for religious reasons.
00:02:22.64\00:02:24.27
They weren't certain.
00:02:24.31\00:02:25.84
They didn't ask, she didn't say.
00:02:25.87\00:02:28.68
And so the question went up,
00:02:28.71\00:02:30.98
this Abercrombie and
Fitch have an obligation to her.
00:02:31.01\00:02:34.35
They didn't hire her
because of the head scarf issue.
00:02:34.38\00:02:38.65
Normally the Supreme
Court up to that point,
00:02:38.69\00:02:42.36
that is the
Supreme Court precedent,
00:02:42.39\00:02:44.83
the lower court precedent
had very clear requirements
00:02:44.86\00:02:50.60
for a case like this.
00:02:50.63\00:02:51.97
I say the Supreme Court,
00:02:52.00\00:02:53.34
the actual Supreme
Court not decided on this
00:02:53.37\00:02:55.90
but the lower
courts were in agreement.
00:02:55.94\00:02:57.97
The elements of a case
00:02:58.01\00:02:59.71
that is what you'd
have to prove to win,
00:02:59.74\00:03:01.44
where you would have to
have a sincere religious belief
00:03:01.48\00:03:03.95
and a conflict for
the work requirement.
00:03:03.98\00:03:06.82
You gave notice to your employer
00:03:06.85\00:03:08.58
that you needed an accommodation
00:03:08.62\00:03:10.65
and the employer did
something bad to you,
00:03:10.69\00:03:12.75
fired you, didn't hire you,
00:03:12.79\00:03:14.56
suspended you
because of the conflict.
00:03:14.59\00:03:17.66
The lower court had
said, "She didn't give notice"
00:03:17.69\00:03:21.96
that second element she
didn't say to Abercrombie.
00:03:22.00\00:03:25.03
That she needed
accommodation. That's right.
00:03:25.07\00:03:26.97
She didn't say, "I'm wearing
this for religious reasons,
00:03:27.00\00:03:29.74
you need to accommodate me."
00:03:29.77\00:03:32.31
Abercrombie thought it
would be a religious belief
00:03:32.34\00:03:37.45
but they didn't know
for sure with regard to her.
00:03:37.48\00:03:41.02
So the question
went up, does the Muslim,
00:03:41.05\00:03:46.79
does the religious objector,
00:03:46.82\00:03:48.66
the person looking
for an accommodation.
00:03:48.69\00:03:50.86
Do they have to
give notice? Yeah.
00:03:50.89\00:03:53.73
And so the
Supreme Court said, "No."
00:03:53.76\00:03:57.67
They said, "If
the employer thinks
00:03:57.70\00:04:00.74
it might be religiously inspired
00:04:00.77\00:04:03.87
and wants to avoid
attempting an accommodation,
00:04:03.91\00:04:08.71
the employers are on
the hook, they have to...
00:04:08.74\00:04:10.95
So you think if they
haven't had that conversation...
00:04:10.98\00:04:14.88
If the interviewer and
the supervisor hadn't said
00:04:14.92\00:04:19.85
what they said ahead of time,
00:04:19.89\00:04:21.22
would have come out differently?
00:04:21.26\00:04:22.59
It might very well
have come out differently.
00:04:22.62\00:04:24.73
Even though the other
principle is what it is,
00:04:24.76\00:04:28.06
that they shouldn't,
there was no need for her
00:04:28.10\00:04:31.70
to ask for accommodation.
00:04:31.73\00:04:33.34
Well, the Supreme
Court actually said
00:04:33.37\00:04:35.60
if the employer
truly didn't know
00:04:35.64\00:04:38.31
and had no idea that's
the case for a different day.
00:04:38.34\00:04:43.71
But the Supreme Court
also did something else.
00:04:43.75\00:04:46.41
They completely trash canned
this whole system approve,
00:04:46.45\00:04:52.52
that is that
religious accommodation claims
00:04:52.55\00:04:56.16
or a separate cause of action.
00:04:56.19\00:04:58.19
Those three
elements are required,
00:04:58.23\00:05:00.20
instead the Supreme Court
changed things universally
00:05:00.23\00:05:04.23
by saying there are
only two cause of action
00:05:04.27\00:05:06.87
under Title VII,
religious disparate impact
00:05:06.90\00:05:10.64
and religious
disparate treatment.
00:05:10.67\00:05:14.84
Many of our viewers
may know that Title VII
00:05:14.88\00:05:17.21
is for the Civil
Rights legislation
00:05:17.25\00:05:19.48
where you have
to be accommodated
00:05:19.51\00:05:20.85
on the basis of among
other things, religion.
00:05:20.88\00:05:23.39
Yes. In fact
well, let me explain.
00:05:23.42\00:05:26.19
Title VII of the
Civil Rights Act of 1964
00:05:26.22\00:05:29.16
nation wide law,
covers almost all employees
00:05:29.19\00:05:32.39
and it protects
several categories,
00:05:32.43\00:05:35.13
one of which is religion.
00:05:35.16\00:05:36.83
Unique thing about religion is
Title VII prohibits employers,
00:05:36.87\00:05:41.24
unions from
discriminating against employees
00:05:41.27\00:05:44.11
based on their religion.
00:05:44.14\00:05:45.47
For example, you
can't say, "you're Baptist,
00:05:45.51\00:05:48.11
we don't hire Baptists here.
00:05:48.14\00:05:49.71
You're an Adventist,
00:05:49.74\00:05:51.08
we wouldn't consider
having an Adventist."
00:05:51.11\00:05:53.01
So that's called
disparate treatment,
00:05:53.05\00:05:54.85
when the employer says,
00:05:54.88\00:05:56.79
"I'm doing something
different to disfavor you
00:05:56.82\00:06:00.62
because of your
religious beliefs."
00:06:00.66\00:06:02.49
But in addition,
00:06:02.52\00:06:04.53
Title VII requires
religious accommodation.
00:06:04.56\00:06:08.56
The employer
might be doing something
00:06:08.60\00:06:10.63
as completely neutral
such as telling everyone,
00:06:10.67\00:06:13.27
they've got to work
on Saturday or Sunday
00:06:13.30\00:06:15.90
but the religious believer says,
00:06:15.94\00:06:17.47
"Hey, I don't believe
in working on Saturday
00:06:17.51\00:06:19.67
or Sunday."
00:06:19.71\00:06:21.04
That's accommodation.
00:06:21.08\00:06:22.41
So it's both the right
to be treated differently
00:06:22.44\00:06:25.65
if your religious
beliefs are required
00:06:25.68\00:06:27.78
and the right to
be treated the same,
00:06:27.82\00:06:30.42
that is you can't be picked out
00:06:30.45\00:06:31.79
for a separate
and bad treatment.
00:06:31.82\00:06:33.15
And then the equation
of course is devolve down
00:06:33.19\00:06:35.12
to just how much
hardship to the employer
00:06:35.16\00:06:37.69
to provide that accommodation.
00:06:37.73\00:06:40.13
That's in facts.
It's not unlimited.
00:06:40.16\00:06:41.50
Right, it's not a defense,
00:06:41.53\00:06:45.03
which is one of the important
points about this case.
00:06:45.07\00:06:47.90
Justice Scalia
wrote this opinion.
00:06:47.94\00:06:50.31
He is historically
not been a favorite
00:06:50.34\00:06:53.34
for protecting free
exercise of religion.
00:06:53.38\00:06:55.91
He wrote the opinion,
00:06:55.94\00:06:57.28
it's very favorable
to religious employees.
00:06:57.31\00:07:01.68
And it is in contrast to
earlier Supreme Court cases
00:07:01.72\00:07:05.92
that were unfavorable.
00:07:05.95\00:07:07.29
You mentioned undue hardship
00:07:07.32\00:07:09.36
that comes from an
unfavorable Supreme Court case,
00:07:09.39\00:07:13.40
Trans World
Airlines versus Hardison.
00:07:13.43\00:07:15.56
TWA versus
Hardison. That's right.
00:07:15.60\00:07:17.90
The statute says
that the employer
00:07:17.93\00:07:20.90
or union is off the hook,
they don't have to accommodate,
00:07:20.94\00:07:23.81
if accommodation will
create undue hardship.
00:07:23.84\00:07:26.44
Well, at the time of
the Hardison decision,
00:07:26.47\00:07:29.41
Trans World Airlines
was either the largest
00:07:29.44\00:07:31.71
or second largest
airline in the United States.
00:07:31.75\00:07:35.02
What would be an undue
hardship for the largest
00:07:35.05\00:07:38.29
or the second largest airline
00:07:38.32\00:07:40.26
if they dropped
a million dollars
00:07:40.29\00:07:42.66
were their
effective stock price,
00:07:42.69\00:07:44.53
how about 10
million, how about 50 million?
00:07:44.56\00:07:47.06
Probably it take a
50 million dollar loss
00:07:47.10\00:07:49.83
to even move their stock loss..
00:07:49.86\00:07:51.20
Well, I'm not a lawyer
but it would seem to me
00:07:51.23\00:07:54.00
that proportionality
would not be to their income
00:07:54.04\00:07:56.77
but to the payment
or salary and the income
00:07:56.81\00:08:02.04
to begin versus the
salary, wouldn't it?
00:08:02.08\00:08:04.25
No, if it's,
actually the statute stays...
00:08:04.28\00:08:06.31
I mean, you surely
be a losing game to...
00:08:06.35\00:08:09.95
Again, I'm trying to
move to the other side to
00:08:09.98\00:08:12.45
if someone's earning a 100,000
00:08:12.49\00:08:14.19
but their employer giving in
to their religious objections
00:08:14.22\00:08:19.33
spends $200,000 in
difficulty to accommodate them,
00:08:19.36\00:08:24.10
I mean that's losing
business proposition, isn't it?
00:08:24.13\00:08:27.37
Well, that's not how
courts had looked at.
00:08:27.40\00:08:30.67
I've never heard a court say,
00:08:30.71\00:08:32.41
we're going to give this
to the income of the employee.
00:08:32.44\00:08:35.54
Instead they actually...
00:08:35.58\00:08:36.91
Not income but the
cost of paying this...
00:08:36.95\00:08:38.75
Cost versus the
income of the employee.
00:08:38.78\00:08:41.98
The statute actually says,
00:08:42.02\00:08:43.72
"Undue hardship on the conduct
of the employer's business."
00:08:43.75\00:08:47.56
So that makes the
point of comparison
00:08:47.59\00:08:50.13
in the employer's business.
00:08:50.16\00:08:51.49
Yeah, You know,
I've been saying,
00:08:51.53\00:08:53.29
hope it's correct, I've heard it
00:08:53.33\00:08:54.76
from some of the rather
religious liberty attorneys...
00:08:54.80\00:08:58.80
You better be careful
who you are talking to.
00:08:58.83\00:09:00.17
Yes, so I'm gonna ask you,
00:09:00.20\00:09:01.87
you're the
resident authority here.
00:09:01.90\00:09:04.67
But some of the recent cases
have defined undue hardship
00:09:04.71\00:09:09.88
or is the de minimis hardship
00:09:09.91\00:09:13.75
and as little as a
dollars worth of trouble
00:09:13.78\00:09:15.68
and beyond that they may not
be under great legal obligation.
00:09:15.72\00:09:18.89
You get good advice.
00:09:18.92\00:09:20.92
That's exactly
the U.S Supreme Court
00:09:20.96\00:09:23.79
in the Hardison case showing
00:09:23.83\00:09:25.49
that there's no dictionary
in the entire building
00:09:25.53\00:09:28.96
you'll find undue hardship
00:09:29.00\00:09:31.17
which would be
greater than hardship, right,
00:09:31.20\00:09:34.04
as a de minimis hardship.
00:09:34.07\00:09:36.87
In the Hardison case
00:09:36.91\00:09:38.81
if they had paid him overtime
for 30 days the dissent says
00:09:38.84\00:09:45.75
that would've got him
through this period of time,
00:09:45.78\00:09:48.28
I won't get into all the facts.
00:09:48.32\00:09:50.62
So this was a
very hostile decision
00:09:50.65\00:09:53.56
I thought to religious liberty
00:09:53.59\00:09:56.09
and it's typical of
these older Title VII decisions
00:09:56.12\00:10:00.36
by the U.S Supreme Court.
00:10:00.40\00:10:01.96
That's why Abercrombie and Fitch
00:10:02.00\00:10:04.33
is such a breath of fresh air.
00:10:04.37\00:10:06.94
It's favorable to
employees of faith.
00:10:06.97\00:10:09.94
It is, I think fair
reading of the statute
00:10:09.97\00:10:13.78
and so it's a real blessing.
00:10:13.81\00:10:15.31
That's good.
00:10:15.34\00:10:16.68
And obviously I want to
state it for our program,
00:10:16.71\00:10:19.38
this affects more
than just Muslims.
00:10:19.41\00:10:21.28
This is not, you know,
00:10:21.32\00:10:23.95
a narrow decision
about one category of persons
00:10:23.99\00:10:26.65
on religious accommodation.
00:10:26.69\00:10:28.02
Yeah, no, this absolutely
affects Seventh-day Adventist,
00:10:28.06\00:10:31.79
every other religion.
00:10:31.83\00:10:33.50
In fact, that's
one of the things
00:10:33.53\00:10:35.33
that Justice Scalia did writing
for the majority in that case.
00:10:35.36\00:10:40.70
He said the
reason why we don't have
00:10:40.74\00:10:44.14
accommodation cases anymore
00:10:44.17\00:10:46.27
as a separate cause of an action
00:10:46.31\00:10:48.18
is this is all
disparate treatment that is,
00:10:48.21\00:10:51.71
if you said I
can't work on Sabbath
00:10:51.75\00:10:55.05
because that's the day
that God ordained for my rest.
00:10:55.08\00:11:00.12
It's not so much really
just accommodation case,
00:11:00.16\00:11:02.82
it's rather the employer
is treating disparately,
00:11:02.86\00:11:07.36
discriminatorily someone
who cannot work on Sabbath.
00:11:07.40\00:11:12.97
And so this is a real sea change
00:11:13.00\00:11:16.24
in the way these
cases are looked at
00:11:16.27\00:11:19.24
and he very
broadly that is the court
00:11:19.27\00:11:22.44
very broadly
defines religion to...
00:11:22.48\00:11:25.81
And this is a good decision?
It's a wonderful decision.
00:11:25.85\00:11:28.25
Again my view,
it's not by any means
00:11:28.28\00:11:31.59
all the negative thing
00:11:31.62\00:11:32.95
when you're looking
at the Supreme Court.
00:11:32.99\00:11:34.32
There's been some very
positive signs of late.
00:11:34.36\00:11:36.12
Right, well
that's why I said you,
00:11:36.16\00:11:37.63
as I said in the
preceding programs,
00:11:37.66\00:11:40.46
the Supreme Court is
on the razor's edge here.
00:11:40.50\00:11:43.37
Yeah, we need to keep...
00:11:43.40\00:11:44.73
It's the
conservatives that are voting
00:11:44.77\00:11:47.27
for religious
freedom in these cases.
00:11:47.30\00:11:49.80
Yeah.
00:11:49.84\00:11:51.97
There's another case
that I remember, not by name,
00:11:52.01\00:11:55.14
but it seemed that there
was another Muslim young woman
00:11:55.18\00:11:58.98
that applied for
employment as a receptionist,
00:11:59.01\00:12:03.12
I think it was.
00:12:03.15\00:12:04.52
And it was
decided by that business
00:12:04.55\00:12:06.69
that they didn't
want her sitting at front
00:12:06.72\00:12:09.32
with this religious garb
00:12:09.36\00:12:11.19
sort of presenting the business,
00:12:11.23\00:12:12.56
so they put her up back
00:12:12.59\00:12:13.93
and said those
are legal challenge.
00:12:13.96\00:12:15.80
Do you remember that one?
I never heard of this case.
00:12:15.83\00:12:18.00
It's a couple of years ago.
00:12:18.03\00:12:19.47
But let's assume
we're in law school
00:12:19.50\00:12:20.84
and that's the...
00:12:20.87\00:12:22.20
Yeah, yeah, yeah,
please law professor.
00:12:22.24\00:12:24.77
That is a case of
disparate treatment,
00:12:24.81\00:12:27.21
that's not an
accommodation case,
00:12:27.24\00:12:29.11
I mean, unless
the employer said...
00:12:29.14\00:12:31.15
Yes, she wasn't fired,
00:12:31.18\00:12:32.51
and I don't think
her salary was changed.
00:12:32.55\00:12:34.12
Well, now you're
injecting new issues,
00:12:34.15\00:12:36.72
but if you just say,
00:12:36.75\00:12:38.55
they don't have to look positive
00:12:38.59\00:12:39.95
for their receptionist.
00:12:39.99\00:12:41.36
They just decide having a Muslim
00:12:41.39\00:12:43.66
sit at the reception
desk wasn't a good idea.
00:12:43.69\00:12:46.70
That's picking a
Muslim out for separate
00:12:46.73\00:12:49.23
and adverse treatment,
that's the disparate treatment.
00:12:49.26\00:12:52.33
I don't know that
it was said that way
00:12:52.37\00:12:54.67
but it would have
amounted to the same thing.
00:12:54.70\00:12:57.31
And there's no undue
hardship defense for that.
00:12:57.34\00:13:00.31
That is, it's just
like you can't say,
00:13:00.34\00:13:02.54
"Well we're not
hiring a woman, you know,
00:13:02.58\00:13:05.01
there's no undue hardship,
00:13:05.05\00:13:07.38
of course undue
hardship is tight tiles
00:13:07.42\00:13:10.95
to the religious..."
00:13:10.99\00:13:12.32
Other way, I mean
this is one white male
00:13:12.35\00:13:15.32
to the another,
what's the legal address,
00:13:15.36\00:13:17.73
I have heard even
in meetings I've been
00:13:17.76\00:13:20.96
and I know it's more
and more of the thing.
00:13:21.00\00:13:23.33
In the job they'll say,
00:13:23.37\00:13:24.70
"This has to be a
woman hired for this job."
00:13:24.73\00:13:27.40
Yes, well I say that's...
00:13:27.44\00:13:29.44
That is a
violation of Title VII.
00:13:29.47\00:13:32.04
You know, there's,
00:13:32.07\00:13:33.71
let me just touch on
something you said before
00:13:33.74\00:13:35.84
and then we'll get into this.
00:13:35.88\00:13:37.21
You said, they put
her simply in sales,
00:13:37.25\00:13:39.38
same salary, didn't change...
00:13:39.41\00:13:40.75
But she wasn't
visible to the public.
00:13:40.78\00:13:42.12
Yeah, see, and
requirement is adverse action,
00:13:42.15\00:13:46.25
so unless it is a more serious
negative impact on your job,
00:13:46.29\00:13:53.23
it's not
actionable under Title VII.
00:13:53.26\00:13:55.93
So the employer
might shift you around
00:13:55.96\00:13:59.53
and if they
shifted to another job,
00:13:59.57\00:14:02.20
will they pay her more?
00:14:02.24\00:14:03.61
Clearly I think
would not be actionable.
00:14:03.64\00:14:05.64
So what about white
males and job offers...
00:14:05.67\00:14:09.31
One of the big religious
liberty issues of all time.
00:14:09.34\00:14:11.61
Yeah.
00:14:11.65\00:14:12.98
Title VII says you
cannot discriminate them
00:14:13.01\00:14:14.65
on the basis of gender.
00:14:14.68\00:14:16.02
Now...
00:14:16.05\00:14:17.39
That's true. Yeah.
00:14:17.42\00:14:18.75
The Supreme Court has been...
00:14:18.79\00:14:20.16
But it happens.
00:14:20.19\00:14:21.59
Well, it happens...
00:14:21.62\00:14:22.96
I've read many
articles about it,
00:14:22.99\00:14:24.33
and I think it's
obvious in our society,
00:14:24.36\00:14:27.36
there is a tilt against
middle aged white males,
00:14:27.40\00:14:31.50
you know, the sort of the locus
00:14:31.53\00:14:34.14
of all of the
wrongs of the past.
00:14:34.17\00:14:36.54
In my 40 years of
litigating Civil Rights cases
00:14:36.57\00:14:39.77
and free speech cases,
00:14:39.81\00:14:41.14
I have noticed that
illegal things happen.
00:14:41.18\00:14:42.98
Yeah.
00:14:43.01\00:14:44.35
That's what keeps me working,
00:14:44.38\00:14:46.45
so the fact that it
happens doesn't make it legal.
00:14:46.48\00:14:50.69
It would have to be some
sort of affirmative action thing
00:14:50.72\00:14:53.52
which is Supreme Court has
been wobbling back and forth on,
00:14:53.56\00:14:57.26
but just a
straight out statement,
00:14:57.29\00:14:59.49
we want to hire a
woman, Title VII violation.
00:14:59.53\00:15:03.77
Okay, on that very sexist point,
00:15:03.80\00:15:07.44
we'll take a break
00:15:07.47\00:15:08.80
and we'll be back to
continue this discussion.
00:15:08.84\00:15:11.21
Stay with us.
00:15:11.24\00:15:12.57