Welcome back to
the Liberty Insider.
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Before the break we were,
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I think drifting
into dangerous territory.
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I think you started the trend.
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Yes, I started
it. Guilty as charge.
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But no, it's spun off
from where we first begin,
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talking about the
Abercrombie and Fitch case,
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about discrimination
and how it was addressed
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in a good case, though.
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And I threw in the fact,
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I'm feeling like
an endangered species.
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But I'm anyway,
May be you aren't.
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Definitely, I might be.
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Well, you know...
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See, I've white hair
and you don't have, so...
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I, more and more trouble
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that even the
airline files looks like
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they're going to
have a high school essay.
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But that's another question.
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But this is good for
religious accommodation.
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And you made a
point in discussion that,
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unless I got it
wrong that may be sometimes
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it's not necessary to
make a specific request
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because that
could reveal, it could,
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well, tell me what, why?
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Well, there are two things...
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I shouldn't
interrupt your comment.
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Yeah, about...
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By the way, I should tell
you, just so it's on the record,
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I gave a wonderful,
well, not a wonderful,
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an enjoyable afternoon meeting
this weekend at a large church,
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one of our fellow
Religious Liberty workers
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from Sacramento joined me in it.
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And I gave a
couple of presentations
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and he would
give a presentation,
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and twice after I
spoke, he spoke very nicely
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but he interpreted what I said.
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He says, "I think
Lincoln means this and he..."
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So I do thank him publicly
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for interpreting that correctly.
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But that's pretty bad
when I arrive at the point
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where I need
somebody to explain to me
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what I said to other people.
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What did you say?
And I may be do, so.
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No, you're not.
We are fine here.
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With regard to notice.
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Yeah, that was
the term I could...
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Notice was a trap in the
past that would give the coach
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an opportunity to rule
against the employee of faith.
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And in fact, the lower courts
had ruled against Samantha
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and off the Muslim on
the basis of lack of notice.
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But an outrageous
case in my opinion
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is a case to decided
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by the United
States Court of Appeals
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for the Fourth Circuit,
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which covers the
area where I live.
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In that case there was a
little Christian employee
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in a company called
Toulon, in Richmond.
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She wrote a letter
to her employer saying,
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"I think you need
to get closer to God
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and I think you need to examine
your relationship with God."
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She was writing about the,
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her boss' failure to promise
when the work would be done.
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He would lie about the time
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things will be done and
she had to do that work.
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So she's being very nice
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but she's writing
to him about faith
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and how he needs to be honesty.
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Come to find out this
fellow had a previous affairs
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and she, that little Christian
witness wrote the letter
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and sent to his home, his
wife looked at the letter,
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apparently saw a
women's hand writing and said,
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"My husband is
having an affair again."
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So she called the
little Christian witness
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to confirm this,
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the Christian
witness said, "What?
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This is not about that,
this is about business."
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But the wife had
gone over the edge
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and as you might
imagine could happen
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and didn't believe
the Christian witness.
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She's thought
she was lying about,
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so she called her husband up,
brought him out of a meeting,
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yelled at him.
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He didn't like
this embarrassment
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and she was fired.
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Now here's...
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This isn't really a
religious liberty, is it?
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No, it's a
religious liberty case
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because she was
writing the letter
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because she said, "God
told me to write to you.
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I'm your little missionary,
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telling you that
you need to be honest."
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But it would have
been the same dynamic
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if just as the matter
of a depressed immorality.
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She wrote and said,
you should be more honest
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about giving us
assignments or whatever.
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Well, here's the thing...
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That would have come out the...
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well, it may wouldn't
have come out the same
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but it would have been
the same dynamic, wouldn't it?
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See, there are protected
categories under Title VII,
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and categories
that aren't protected,
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religion is protected.
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She was clearly
motivated by her religious faith
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to write this letter.
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The US Court of
Appeals for the Fourth Circuit
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ruled against her
because it said this,
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"Even though there
was no company policy
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against writing letters
to co-workers," they said,
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"She should have known
that writing a letter like that
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would be
inappropriate," and therefore,
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she's going to
write a letter like that,
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she should've give
notice to the company
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prior to writing the letter
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that she intended
to write the letter.
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Now of course, this
is completely ridiculous.
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How could she, she had to
be a prophet to figure out
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that they had a rule like that
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and then she have to
write a letter saying,
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"I know you don't have a rule
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but I'm going
to write a letter,"
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and that was the only way.
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The court ruled
against her for lack of notice.
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That decision has gone
down the drain as it were,
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it's in the garbage can
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after the
Abercrombie & Fitch decision.
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Yeah, I can see that
it set a bad precedent.
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Yeah. Not good at all.
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See, and this is
not the only court
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because I teach
employment discrimination
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and teach class called
Religion in the Workplace.
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Courts often do this.
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Will say, well, we're
going to rule against you
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based on notice, you
didn't clearly give notice.
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So it's a wonderful decision.
Let me throw in something else.
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It just occurred to me,
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I've got a legal expert here.
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You know, we have a
system of laws and obviously,
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when we're talking
about religious accommodation,
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lawyers get involved.
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How does the element
of a public defendant work
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in these religious liberty case.
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Probably not at all. Not at all?
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Because there's been cases. Yes.
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Public defenders
exist for criminal cases.
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Here is what the
government does...
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What I was getting at,
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seems like a lot of
people get bad legal advice,
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which you easily get.
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So is there a need for people,
well, I'll rephrase it then.
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Do you think in our area,
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we all seem to know the
general layout of the lane
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but do lawyers who would defend
people with different cases,
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do they understand these nuances
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for religious accommodation?
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This is the reason why I
teach employment discrimination,
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so that lawyers
will know these things
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and will be equipped to do this.
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Instead, public defenders,
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they're some
powerful private organizations
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that fund these cases.
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Not only is the
National Right to Work
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Legal Defense Foundation,
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my employer funding
these cases in the area
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of Compulsory Union Dues,
but the Alliance Defense Fund
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is a very powerful organization
that helps employees
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and other citizens for
free, defend their religion.
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I can name several organizations
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the Beckett fund.
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The American
Center of Law and Justice
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is connected with...
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No, and anyone that
reads liberty magazines knows
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that we take issue against
each of those on occasion,
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but overall they do a wonderful,
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wonderful work, I know that.
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They allow these cases
to be brought in addition,
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and for any of your listeners
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are thinking
about a case like this,
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the law says if
you bring a Title VII,
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religious
accommodation case and you win,
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the other side pays
your attorney's fees.
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So this is a
powerful incentive for...
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Isn't that the
law, generally? No, no.
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Fee shifting is, this
is called fee shifting.
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Fee shifting is very
rare in the United States.
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The law in the United
States is that each litigant
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bears their own cost and
pays their own attorney's fees.
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But because congress
want to encourage people
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who wouldn't have money
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to be able to
vindicate their civil rights,
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they have this
fee shifting statue.
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And so individuals
who win can collect fees.
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I could be wrong,
but I think in British,
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the system in Australia,
I think it is fee shifting.
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That's right, in
the British system.
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I always
understood, in it's functions,
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what you said is true,
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but it can
function is a disincentive
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for someone just suing someone
because they have, you know,
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other some means or aggravated,
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but then if
there's a penalty for them
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and they have to
pay for dragging it on.
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Right, and the British
system the winner gets paid
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and the looser pays,
but it's not that way
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in the fee shifting
for civil right's case
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and this is very important.
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If the plaintiff,
that is the personal claims
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the religious
accommodation right
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or gender discrimination
or whatever it is,
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if they win, they
are entitle the fees.
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They only pay fees if
their sue is frivolous.
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Yeah, and the
judge decides that.
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Judge decides that.
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So that means almost
every time the winning plaintiff
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in the religious discrimination
case gets the fees rarely.
00:10:07.57\00:10:12.37
If the person
who's the plaintiff
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in the religious
accommodation case looses,
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do they pay fees, very rarely.
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If you would
have to be frivolous,
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you have to have a lawyer
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who wasn't
carefully evaluating your case
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in order for you
to have to pay fees.
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Well, you know, we
started with this discussion
00:10:28.42\00:10:30.29
of the Samantha.
00:10:30.33\00:10:33.03
Yes. A young Muslim woman.
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But it's, I don't know
if we mentioned it before,
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but it was mentioned.
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This case was a
Muslim, but the positive effect
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that spread across all
people of faith, isn't it?
00:10:42.14\00:10:43.97
That's correct.
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And it might be at the moment
in a curious twist of history
00:10:45.37\00:10:50.75
that even though
Islam is connected
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with some terrorist actions
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but there's a
fairly good diligence
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to accommodate Muslims
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in the workplace
and other places.
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That's right.
00:11:01.26\00:11:02.59
I'm a big advocate that
facts make a difference.
00:11:02.62\00:11:05.59
And so in certain
cases, you've got to be sure
00:11:05.63\00:11:09.50
that you're facts are the best.
00:11:09.53\00:11:12.20
So if you're a
listener, you're involved
00:11:12.23\00:11:14.57
in a religious
accommodation case,
00:11:14.60\00:11:16.71
I think it's
very important for you
00:11:16.74\00:11:18.61
to do your very best to
cooperate with your employer
00:11:18.64\00:11:22.58
in the accommodation.
00:11:22.61\00:11:23.95
Do what makes your side appear
most reasonable and helpful.
00:11:23.98\00:11:30.15
As the school boy
growing up in Australia,
00:11:30.19\00:11:32.19
I will remember taking
the train quite a few stations
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to my school, being amazed
that the myriads of uniform
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that the different school
boys and school girls wore.
00:11:41.40\00:11:44.20
Each school had a
very distinctive uniform.
00:11:44.23\00:11:48.40
I sometimes miss that.
00:11:48.44\00:11:50.27
But when you
think about religion,
00:11:50.31\00:11:51.81
very often with intention or not
00:11:51.84\00:11:56.08
different religious groups
are defined by their dress
00:11:56.11\00:12:00.62
and indeed
sometimes their very uniform.
00:12:00.65\00:12:04.95
We need to respect
that, its part of the culture
00:12:04.99\00:12:08.86
and indeed, the
presentation of one's faith.
00:12:08.89\00:12:13.46
It's very often
seen as sort of something
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that grudgingly we will grant.
00:12:16.83\00:12:18.40
But for those
people like the young girl
00:12:18.43\00:12:20.67
at Abercrombie and Fitch,
00:12:20.70\00:12:23.81
this is an expression
of her deeply held faith.
00:12:23.84\00:12:27.48
And it must be accommodated
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if we had to
make any pretense law
00:12:29.38\00:12:32.31
of truly accommodating
religious conviction.
00:12:32.35\00:12:37.89
For Liberty Insider,
this is Lincoln Steed.
00:12:37.92\00:12:41.12