Participants: Lincoln Steed (Host), Bruce N. Cameron
Series Code: LI
Program Code: LI000332B
|
00:05 Welcome back to the Liberty Insider.
00:08 Before the break we were, 00:11 I think drifting into dangerous territory. 00:15 I think you started the trend. 00:16 Yes, I started it. Guilty as charge. 00:19 But no, it's spun off from where we first begin, 00:23 talking about the Abercrombie and Fitch case, 00:27 about discrimination and how it was addressed 00:30 in a good case, though. 00:32 And I threw in the fact, 00:34 I'm feeling like an endangered species. 00:36 But I'm anyway, May be you aren't. 00:40 Definitely, I might be. 00:42 Well, you know... 00:43 See, I've white hair and you don't have, so... 00:46 I, more and more trouble 00:47 that even the airline files looks like 00:49 they're going to have a high school essay. 00:52 But that's another question. 00:55 But this is good for religious accommodation. 00:58 And you made a point in discussion that, 01:04 unless I got it wrong that may be sometimes 01:08 it's not necessary to make a specific request 01:14 because that could reveal, it could, 01:17 well, tell me what, why? 01:19 Well, there are two things... 01:21 I shouldn't interrupt your comment. 01:22 Yeah, about... 01:23 By the way, I should tell you, just so it's on the record, 01:27 I gave a wonderful, well, not a wonderful, 01:29 an enjoyable afternoon meeting this weekend at a large church, 01:34 one of our fellow Religious Liberty workers 01:37 from Sacramento joined me in it. 01:41 And I gave a couple of presentations 01:43 and he would give a presentation, 01:44 and twice after I spoke, he spoke very nicely 01:47 but he interpreted what I said. 01:49 He says, "I think Lincoln means this and he..." 01:54 So I do thank him publicly 01:56 for interpreting that correctly. 01:58 But that's pretty bad when I arrive at the point 02:00 where I need somebody to explain to me 02:02 what I said to other people. 02:03 What did you say? And I may be do, so. 02:07 No, you're not. We are fine here. 02:10 With regard to notice. 02:13 Yeah, that was the term I could... 02:14 Notice was a trap in the past that would give the coach 02:19 an opportunity to rule against the employee of faith. 02:23 And in fact, the lower courts had ruled against Samantha 02:26 and off the Muslim on the basis of lack of notice. 02:31 But an outrageous case in my opinion 02:35 is a case to decided 02:37 by the United States Court of Appeals 02:38 for the Fourth Circuit, 02:39 which covers the area where I live. 02:42 In that case there was a little Christian employee 02:46 in a company called Toulon, in Richmond. 02:50 She wrote a letter to her employer saying, 02:54 "I think you need to get closer to God 02:56 and I think you need to examine your relationship with God." 03:02 She was writing about the, 03:05 her boss' failure to promise when the work would be done. 03:12 He would lie about the time 03:15 things will be done and she had to do that work. 03:18 So she's being very nice 03:19 but she's writing to him about faith 03:21 and how he needs to be honesty. 03:23 Come to find out this fellow had a previous affairs 03:28 and she, that little Christian witness wrote the letter 03:31 and sent to his home, his wife looked at the letter, 03:35 apparently saw a women's hand writing and said, 03:39 "My husband is having an affair again." 03:43 So she called the little Christian witness 03:46 to confirm this, 03:47 the Christian witness said, "What? 03:50 This is not about that, this is about business." 03:52 But the wife had gone over the edge 03:56 and as you might imagine could happen 03:59 and didn't believe the Christian witness. 04:02 She's thought she was lying about, 04:04 so she called her husband up, brought him out of a meeting, 04:08 yelled at him. 04:09 He didn't like this embarrassment 04:12 and she was fired. 04:13 Now here's... 04:15 This isn't really a religious liberty, is it? 04:17 No, it's a religious liberty case 04:19 because she was writing the letter 04:21 because she said, "God told me to write to you. 04:24 I'm your little missionary, 04:26 telling you that you need to be honest." 04:29 But it would have been the same dynamic 04:30 if just as the matter of a depressed immorality. 04:34 She wrote and said, you should be more honest 04:36 about giving us assignments or whatever. 04:38 Well, here's the thing... 04:39 That would have come out the... 04:41 well, it may wouldn't have come out the same 04:42 but it would have been the same dynamic, wouldn't it? 04:43 See, there are protected categories under Title VII, 04:47 and categories that aren't protected, 04:48 religion is protected. 04:49 She was clearly motivated by her religious faith 04:52 to write this letter. 04:54 The US Court of Appeals for the Fourth Circuit 04:56 ruled against her because it said this, 05:00 "Even though there was no company policy 05:02 against writing letters to co-workers," they said, 05:07 "She should have known that writing a letter like that 05:11 would be inappropriate," and therefore, 05:14 she's going to write a letter like that, 05:16 she should've give notice to the company 05:19 prior to writing the letter 05:21 that she intended to write the letter. 05:22 Now of course, this is completely ridiculous. 05:25 How could she, she had to be a prophet to figure out 05:28 that they had a rule like that 05:30 and then she have to write a letter saying, 05:32 "I know you don't have a rule 05:34 but I'm going to write a letter," 05:35 and that was the only way. 05:37 The court ruled against her for lack of notice. 05:40 That decision has gone down the drain as it were, 05:44 it's in the garbage can 05:46 after the Abercrombie & Fitch decision. 05:50 Yeah, I can see that it set a bad precedent. 05:52 Yeah. Not good at all. 05:54 See, and this is not the only court 05:56 because I teach employment discrimination 05:59 and teach class called Religion in the Workplace. 06:03 Courts often do this. 06:05 Will say, well, we're going to rule against you 06:08 based on notice, you didn't clearly give notice. 06:11 So it's a wonderful decision. Let me throw in something else. 06:17 It just occurred to me, 06:18 I've got a legal expert here. 06:24 You know, we have a system of laws and obviously, 06:27 when we're talking about religious accommodation, 06:29 lawyers get involved. 06:32 How does the element of a public defendant work 06:37 in these religious liberty case. 06:39 Probably not at all. Not at all? 06:41 Because there's been cases. Yes. 06:43 Public defenders exist for criminal cases. 06:46 Here is what the government does... 06:49 What I was getting at, 06:51 seems like a lot of people get bad legal advice, 06:53 which you easily get. 06:57 So is there a need for people, well, I'll rephrase it then. 07:00 Do you think in our area, 07:04 we all seem to know the general layout of the lane 07:06 but do lawyers who would defend people with different cases, 07:10 do they understand these nuances 07:13 for religious accommodation? 07:14 This is the reason why I teach employment discrimination, 07:17 so that lawyers will know these things 07:20 and will be equipped to do this. 07:22 Instead, public defenders, 07:24 they're some powerful private organizations 07:27 that fund these cases. 07:29 Not only is the National Right to Work 07:31 Legal Defense Foundation, 07:33 my employer funding these cases in the area 07:36 of Compulsory Union Dues, but the Alliance Defense Fund 07:39 is a very powerful organization that helps employees 07:43 and other citizens for free, defend their religion. 07:47 I can name several organizations 07:50 the Beckett fund. 07:52 The American Center of Law and Justice 07:55 is connected with... 07:57 No, and anyone that reads liberty magazines knows 08:00 that we take issue against each of those on occasion, 08:02 but overall they do a wonderful, 08:06 wonderful work, I know that. 08:07 They allow these cases to be brought in addition, 08:11 and for any of your listeners 08:13 are thinking about a case like this, 08:16 the law says if you bring a Title VII, 08:19 religious accommodation case and you win, 08:23 the other side pays your attorney's fees. 08:26 So this is a powerful incentive for... 08:29 Isn't that the law, generally? No, no. 08:33 Fee shifting is, this is called fee shifting. 08:37 Fee shifting is very rare in the United States. 08:40 The law in the United States is that each litigant 08:44 bears their own cost and pays their own attorney's fees. 08:48 But because congress want to encourage people 08:52 who wouldn't have money 08:53 to be able to vindicate their civil rights, 08:57 they have this fee shifting statue. 08:59 And so individuals who win can collect fees. 09:03 I could be wrong, but I think in British, 09:05 the system in Australia, I think it is fee shifting. 09:09 That's right, in the British system. 09:11 I always understood, in it's functions, 09:14 what you said is true, 09:16 but it can function is a disincentive 09:18 for someone just suing someone because they have, you know, 09:22 other some means or aggravated, 09:25 but then if there's a penalty for them 09:27 and they have to pay for dragging it on. 09:29 Right, and the British system the winner gets paid 09:35 and the looser pays, but it's not that way 09:39 in the fee shifting for civil right's case 09:41 and this is very important. 09:43 If the plaintiff, that is the personal claims 09:46 the religious accommodation right 09:48 or gender discrimination or whatever it is, 09:51 if they win, they are entitle the fees. 09:53 They only pay fees if their sue is frivolous. 09:59 Yeah, and the judge decides that. 10:01 Judge decides that. 10:02 So that means almost every time the winning plaintiff 10:07 in the religious discrimination case gets the fees rarely. 10:12 If the person who's the plaintiff 10:15 in the religious accommodation case looses, 10:17 do they pay fees, very rarely. 10:19 If you would have to be frivolous, 10:21 you have to have a lawyer 10:23 who wasn't carefully evaluating your case 10:26 in order for you to have to pay fees. 10:28 Well, you know, we started with this discussion 10:30 of the Samantha. 10:33 Yes. A young Muslim woman. 10:35 But it's, I don't know if we mentioned it before, 10:37 but it was mentioned. 10:38 This case was a Muslim, but the positive effect 10:42 that spread across all people of faith, isn't it? 10:44 That's correct. 10:45 And it might be at the moment in a curious twist of history 10:50 that even though Islam is connected 10:53 with some terrorist actions 10:55 but there's a fairly good diligence 10:58 to accommodate Muslims 10:59 in the workplace and other places. 11:01 That's right. 11:02 I'm a big advocate that facts make a difference. 11:05 And so in certain cases, you've got to be sure 11:09 that you're facts are the best. 11:12 So if you're a listener, you're involved 11:14 in a religious accommodation case, 11:16 I think it's very important for you 11:18 to do your very best to cooperate with your employer 11:22 in the accommodation. 11:23 Do what makes your side appear most reasonable and helpful. 11:30 As the school boy growing up in Australia, 11:32 I will remember taking the train quite a few stations 11:37 to my school, being amazed that the myriads of uniform 11:41 that the different school boys and school girls wore. 11:44 Each school had a very distinctive uniform. 11:48 I sometimes miss that. 11:50 But when you think about religion, 11:51 very often with intention or not 11:56 different religious groups are defined by their dress 12:00 and indeed sometimes their very uniform. 12:04 We need to respect that, its part of the culture 12:08 and indeed, the presentation of one's faith. 12:13 It's very often seen as sort of something 12:16 that grudgingly we will grant. 12:18 But for those people like the young girl 12:20 at Abercrombie and Fitch, 12:23 this is an expression of her deeply held faith. 12:27 And it must be accommodated 12:29 if we had to make any pretense law 12:32 of truly accommodating religious conviction. 12:37 For Liberty Insider, this is Lincoln Steed. |
Revised 2016-09-19