Participants: Lincoln Steed (Host), Bruce N. Cameron
Series Code: LI
Program Code: LI000332A
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00:27 Welcome to the Liberty Insider.
00:29 This is a program bringing your news, views, 00:31 discussion, analysis, and everything up-to-date 00:34 that you need to know about religious liberty developments 00:38 in the U.S and around the world. 00:40 My name is Lincoln Steed, editor of Liberty Magazine, 00:44 and my guest on the program is Bruce Cameron. 00:47 Professor Bruce Cameron, law professor 00:49 at Regent University in Virginia Beach, Maryland, 00:53 not Maryland, Virginia Beach, Virginia. 00:57 Let's not discuss geography here today. 01:03 I happened to be from Australia which I think is down south. 01:08 But let's talk about a very important case recently, 01:12 a case involving Abercrombie and Fitch, 01:15 and a young woman Samantha that needed accommodation 01:20 and it took quite a legal battle 01:22 before the court sort her way, right? 01:26 What was really at play? What was going on? 01:28 Well, Abercrombie and Fitch 01:30 as you may know is a clothes retailer 01:32 and they have among their sales staff 01:34 a look policy, that is, they want their sales staff 01:39 to have a specific look... 01:41 Which is not unusual, many businesses 01:44 have this sort of a corporate look, don't they? 01:47 Dress code, kind of thing, right. 01:49 And so Samantha Eloff was a Muslim 01:54 and she wore a head scarf. 01:56 And when she interviewed, 01:58 the Abercrombie and Fitch interviewer wasn't sure 02:02 why she wore the head scarf, didn't ask her, it wasn't black 02:08 and so it could just be a style thing. 02:11 So the interviewer asked the supervisor, 02:15 what about this and the thought was 02:20 that they believe she was wearing it 02:22 for religious reasons. 02:24 They weren't certain. 02:25 They didn't ask, she didn't say. 02:28 And so the question went up, 02:31 this Abercrombie and Fitch have an obligation to her. 02:34 They didn't hire her because of the head scarf issue. 02:38 Normally the Supreme Court up to that point, 02:42 that is the Supreme Court precedent, 02:44 the lower court precedent had very clear requirements 02:50 for a case like this. 02:52 I say the Supreme Court, 02:53 the actual Supreme Court not decided on this 02:55 but the lower courts were in agreement. 02:58 The elements of a case 02:59 that is what you'd have to prove to win, 03:01 where you would have to have a sincere religious belief 03:03 and a conflict for the work requirement. 03:06 You gave notice to your employer 03:08 that you needed an accommodation 03:10 and the employer did something bad to you, 03:12 fired you, didn't hire you, 03:14 suspended you because of the conflict. 03:17 The lower court had said, "She didn't give notice" 03:22 that second element she didn't say to Abercrombie. 03:25 That she needed accommodation. That's right. 03:27 She didn't say, "I'm wearing this for religious reasons, 03:29 you need to accommodate me." 03:32 Abercrombie thought it would be a religious belief 03:37 but they didn't know for sure with regard to her. 03:41 So the question went up, does the Muslim, 03:46 does the religious objector, 03:48 the person looking for an accommodation. 03:50 Do they have to give notice? Yeah. 03:53 And so the Supreme Court said, "No." 03:57 They said, "If the employer thinks 04:00 it might be religiously inspired 04:03 and wants to avoid attempting an accommodation, 04:08 the employers are on the hook, they have to... 04:10 So you think if they haven't had that conversation... 04:14 If the interviewer and the supervisor hadn't said 04:19 what they said ahead of time, 04:21 would have come out differently? 04:22 It might very well have come out differently. 04:24 Even though the other principle is what it is, 04:28 that they shouldn't, there was no need for her 04:31 to ask for accommodation. 04:33 Well, the Supreme Court actually said 04:35 if the employer truly didn't know 04:38 and had no idea that's the case for a different day. 04:43 But the Supreme Court also did something else. 04:46 They completely trash canned this whole system approve, 04:52 that is that religious accommodation claims 04:56 or a separate cause of action. 04:58 Those three elements are required, 05:00 instead the Supreme Court changed things universally 05:04 by saying there are only two cause of action 05:06 under Title VII, religious disparate impact 05:10 and religious disparate treatment. 05:14 Many of our viewers may know that Title VII 05:17 is for the Civil Rights legislation 05:19 where you have to be accommodated 05:20 on the basis of among other things, religion. 05:23 Yes. In fact well, let me explain. 05:26 Title VII of the Civil Rights Act of 1964 05:29 nation wide law, covers almost all employees 05:32 and it protects several categories, 05:35 one of which is religion. 05:36 Unique thing about religion is Title VII prohibits employers, 05:41 unions from discriminating against employees 05:44 based on their religion. 05:45 For example, you can't say, "you're Baptist, 05:48 we don't hire Baptists here. 05:49 You're an Adventist, 05:51 we wouldn't consider having an Adventist." 05:53 So that's called disparate treatment, 05:54 when the employer says, 05:56 "I'm doing something different to disfavor you 06:00 because of your religious beliefs." 06:02 But in addition, 06:04 Title VII requires religious accommodation. 06:08 The employer might be doing something 06:10 as completely neutral such as telling everyone, 06:13 they've got to work on Saturday or Sunday 06:15 but the religious believer says, 06:17 "Hey, I don't believe in working on Saturday 06:19 or Sunday." 06:21 That's accommodation. 06:22 So it's both the right to be treated differently 06:25 if your religious beliefs are required 06:27 and the right to be treated the same, 06:30 that is you can't be picked out 06:31 for a separate and bad treatment. 06:33 And then the equation of course is devolve down 06:35 to just how much hardship to the employer 06:37 to provide that accommodation. 06:40 That's in facts. It's not unlimited. 06:41 Right, it's not a defense, 06:45 which is one of the important points about this case. 06:47 Justice Scalia wrote this opinion. 06:50 He is historically not been a favorite 06:53 for protecting free exercise of religion. 06:55 He wrote the opinion, 06:57 it's very favorable to religious employees. 07:01 And it is in contrast to earlier Supreme Court cases 07:05 that were unfavorable. 07:07 You mentioned undue hardship 07:09 that comes from an unfavorable Supreme Court case, 07:13 Trans World Airlines versus Hardison. 07:15 TWA versus Hardison. That's right. 07:17 The statute says that the employer 07:20 or union is off the hook, they don't have to accommodate, 07:23 if accommodation will create undue hardship. 07:26 Well, at the time of the Hardison decision, 07:29 Trans World Airlines was either the largest 07:31 or second largest airline in the United States. 07:35 What would be an undue hardship for the largest 07:38 or the second largest airline 07:40 if they dropped a million dollars 07:42 were their effective stock price, 07:44 how about 10 million, how about 50 million? 07:47 Probably it take a 50 million dollar loss 07:49 to even move their stock loss.. 07:51 Well, I'm not a lawyer but it would seem to me 07:54 that proportionality would not be to their income 07:56 but to the payment or salary and the income 08:02 to begin versus the salary, wouldn't it? 08:04 No, if it's, actually the statute stays... 08:06 I mean, you surely be a losing game to... 08:09 Again, I'm trying to move to the other side to 08:12 if someone's earning a 100,000 08:14 but their employer giving in to their religious objections 08:19 spends $200,000 in difficulty to accommodate them, 08:24 I mean that's losing business proposition, isn't it? 08:27 Well, that's not how courts had looked at. 08:30 I've never heard a court say, 08:32 we're going to give this to the income of the employee. 08:35 Instead they actually... 08:36 Not income but the cost of paying this... 08:38 Cost versus the income of the employee. 08:42 The statute actually says, 08:43 "Undue hardship on the conduct of the employer's business." 08:47 So that makes the point of comparison 08:50 in the employer's business. 08:51 Yeah, You know, I've been saying, 08:53 hope it's correct, I've heard it 08:54 from some of the rather religious liberty attorneys... 08:58 You better be careful who you are talking to. 09:00 Yes, so I'm gonna ask you, 09:01 you're the resident authority here. 09:04 But some of the recent cases have defined undue hardship 09:09 or is the de minimis hardship 09:13 and as little as a dollars worth of trouble 09:15 and beyond that they may not be under great legal obligation. 09:18 You get good advice. 09:20 That's exactly the U.S Supreme Court 09:23 in the Hardison case showing 09:25 that there's no dictionary in the entire building 09:29 you'll find undue hardship 09:31 which would be greater than hardship, right, 09:34 as a de minimis hardship. 09:36 In the Hardison case 09:38 if they had paid him overtime for 30 days the dissent says 09:45 that would've got him through this period of time, 09:48 I won't get into all the facts. 09:50 So this was a very hostile decision 09:53 I thought to religious liberty 09:56 and it's typical of these older Title VII decisions 10:00 by the U.S Supreme Court. 10:02 That's why Abercrombie and Fitch 10:04 is such a breath of fresh air. 10:06 It's favorable to employees of faith. 10:09 It is, I think fair reading of the statute 10:13 and so it's a real blessing. 10:15 That's good. 10:16 And obviously I want to state it for our program, 10:19 this affects more than just Muslims. 10:21 This is not, you know, 10:23 a narrow decision about one category of persons 10:26 on religious accommodation. 10:28 Yeah, no, this absolutely affects Seventh-day Adventist, 10:31 every other religion. 10:33 In fact, that's one of the things 10:35 that Justice Scalia did writing for the majority in that case. 10:40 He said the reason why we don't have 10:44 accommodation cases anymore 10:46 as a separate cause of an action 10:48 is this is all disparate treatment that is, 10:51 if you said I can't work on Sabbath 10:55 because that's the day that God ordained for my rest. 11:00 It's not so much really just accommodation case, 11:02 it's rather the employer is treating disparately, 11:07 discriminatorily someone who cannot work on Sabbath. 11:13 And so this is a real sea change 11:16 in the way these cases are looked at 11:19 and he very broadly that is the court 11:22 very broadly defines religion to... 11:25 And this is a good decision? It's a wonderful decision. 11:28 Again my view, it's not by any means 11:31 all the negative thing 11:32 when you're looking at the Supreme Court. 11:34 There's been some very positive signs of late. 11:36 Right, well that's why I said you, 11:37 as I said in the preceding programs, 11:40 the Supreme Court is on the razor's edge here. 11:43 Yeah, we need to keep... 11:44 It's the conservatives that are voting 11:47 for religious freedom in these cases. 11:49 Yeah. 11:52 There's another case that I remember, not by name, 11:55 but it seemed that there was another Muslim young woman 11:59 that applied for employment as a receptionist, 12:03 I think it was. 12:04 And it was decided by that business 12:06 that they didn't want her sitting at front 12:09 with this religious garb 12:11 sort of presenting the business, 12:12 so they put her up back 12:13 and said those are legal challenge. 12:15 Do you remember that one? I never heard of this case. 12:18 It's a couple of years ago. 12:19 But let's assume we're in law school 12:20 and that's the... 12:22 Yeah, yeah, yeah, please law professor. 12:24 That is a case of disparate treatment, 12:27 that's not an accommodation case, 12:29 I mean, unless the employer said... 12:31 Yes, she wasn't fired, 12:32 and I don't think her salary was changed. 12:34 Well, now you're injecting new issues, 12:36 but if you just say, 12:38 they don't have to look positive 12:39 for their receptionist. 12:41 They just decide having a Muslim 12:43 sit at the reception desk wasn't a good idea. 12:46 That's picking a Muslim out for separate 12:49 and adverse treatment, that's the disparate treatment. 12:52 I don't know that it was said that way 12:54 but it would have amounted to the same thing. 12:57 And there's no undue hardship defense for that. 13:00 That is, it's just like you can't say, 13:02 "Well we're not hiring a woman, you know, 13:05 there's no undue hardship, 13:07 of course undue hardship is tight tiles 13:10 to the religious..." 13:12 Other way, I mean this is one white male 13:15 to the another, what's the legal address, 13:17 I have heard even in meetings I've been 13:21 and I know it's more and more of the thing. 13:23 In the job they'll say, 13:24 "This has to be a woman hired for this job." 13:27 Yes, well I say that's... 13:29 That is a violation of Title VII. 13:32 You know, there's, 13:33 let me just touch on something you said before 13:35 and then we'll get into this. 13:37 You said, they put her simply in sales, 13:39 same salary, didn't change... 13:40 But she wasn't visible to the public. 13:42 Yeah, see, and requirement is adverse action, 13:46 so unless it is a more serious negative impact on your job, 13:53 it's not actionable under Title VII. 13:55 So the employer might shift you around 13:59 and if they shifted to another job, 14:02 will they pay her more? 14:03 Clearly I think would not be actionable. 14:05 So what about white males and job offers... 14:09 One of the big religious liberty issues of all time. 14:11 Yeah. 14:13 Title VII says you cannot discriminate them 14:14 on the basis of gender. 14:16 Now... 14:17 That's true. Yeah. 14:18 The Supreme Court has been... 14:20 But it happens. 14:21 Well, it happens... 14:22 I've read many articles about it, 14:24 and I think it's obvious in our society, 14:27 there is a tilt against middle aged white males, 14:31 you know, the sort of the locus 14:34 of all of the wrongs of the past. 14:36 In my 40 years of litigating Civil Rights cases 14:39 and free speech cases, 14:41 I have noticed that illegal things happen. 14:43 Yeah. 14:44 That's what keeps me working, 14:46 so the fact that it happens doesn't make it legal. 14:50 It would have to be some sort of affirmative action thing 14:53 which is Supreme Court has been wobbling back and forth on, 14:57 but just a straight out statement, 14:59 we want to hire a woman, Title VII violation. 15:03 Okay, on that very sexist point, 15:07 we'll take a break 15:08 and we'll be back to continue this discussion. 15:11 Stay with us. |
Revised 2016-09-19