“A discrimination lawsuit filed by a Muslim Dunkin’ Donuts franchisee who was not allowed to renew his contract with the chain because of a refusal to sell pork products can proceed, a U.S. appeals court ruled Tuesday.” For many years the donut chain had permitted Walid Elkhatib to refrain from including bacon, sausage or pork in breakfast sandwich offerings, because of religious scruples, but in 2002 it insisted that he carry the line with meat included, and he sued on religious-discrimination grounds. According to the coverage, Circuit judge Ilana Diamond Rovner apparently found it significant that the donut chain had allowed some franchisees in the area not to carry the breakfast sandwiches, for reasons that included, e.g., limited space. It sounds, though, as if the deal that Elkhatib wished to carry forward was somewhat different: he wanted to go ahead and keep selling the sandwiches without putting meat in them, which would presumably have implications for what franchising strategists call the consistency of the customer experience. (”Muslim Dunkin’ Donuts Owner Can Sue Over Pork, Appeals Court Says”, Reuters/FoxNews.com, Jul. 10; Samuel Estreicher and Michael J. Gray, “Religion and the U.S. Workplace”, Human Rights Magazine (ABA), Summer 2006)(& welcome Michelle Malkin readers).
This one doesn’t get my knickers in a knot.
First, the company had permitted the franchisee to behave in a particular manner for several years. That establishes, to some extent, that the carrying of the sandwiches was not fundamental to the company. (I don’t go looking for pork products at Dunkin’ Donuts; I go for donuts, oddly enough.)
Second, it is entirely arguable that the location of this particular franchise makes it both reasonable and profitable to refrain from carrying pork products. Is it in the middle of an Arab neighborhood? Is it across the street form a mosque or synagogue? If the franchisee were to lose business because of a new corporate directive, I would think he has an arguable claim at a minimum.
Ideally, DD would buy him out if new business plans no longer provided a good match between corporate marketing strategy and individual franchisees.
In this particular case, there is some evidence that Dunkin Donuts does not particularly care about the “consistency of the customer experience” in that they had standardized signs stating “Meat Products Not Available.” It is perhaps a legitimate argument for why the suit should not succeed, but not one the chain made: they relied solely on contractual language that was not enforced consistently, which permitted the allegation of pretext.
Of course, that leads to the question of whether the McDonnell-Douglas standard for determining pretext is too permissive, but that’s a question too lengthy for this small comment box.
I’ve been a student of Islam for some years now, and I’ve never understood the prohibition on eating pig products to extend to selling them. Handling them, yes, but contributing to others handling them, no.
He may have a right to sue, but this is an example of the creeping extremization of Islamic Law. It’s not like the pharmacists not wanting to sell plan B, where they could reasonably argue they’d be abetting a mortal sin if they did so. This is abetting nonbelievers doing something that’s not a sin by virtue of their being nonbelievers.
Having lived in the Middle East for a major portion of my life, I’m aware that there’s a broad spectrum in responses to pork. Some Muslims I know will not enter a room which has pork products in it. Others, making the best of a bad situation, found that they could eat ‘pink veal’ while they were students in Eastern Europe when there was simply no other meat available.
But if the DD company had no consistent policy IRT the sale and promotion of pork products, if it permitted the individual to avoid selling such products in the past, then it has gravely weakened its argument for enforcing a new policy.
I don’t see avoidance of pork as ‘extremist’. Most Jews will avoid pork products as a matter of course. Most Hindus will avoid beef as a matter of course. Most Buddhists will avoid meat of any kind as a religious duty. Whether their avoidance extends to not selling such products is a matter of their own interpretations of their religious duty.
As a Jewish friend of my dad’s said, while tucking into a free bacon sandwich, “The sin is to pay for it.”
IANAL, but it seems a little strange to me to claim a right to do business under the DD trademark, but refuse to actually sell their products.
It seems to me that DD is missing a marketing opportunity here. By developing a product line confirming to halal, they can tap into the +2 million Muslims living in the US.
Hrmm… When I know as a DD customer I would be rather annoyed if I went into one and couldn’t get my sasauge egg and cheese on a bagel.
That being said, I think DD would have been okay if they had taken this position from the beginning, by allowing it for awhile, then disallowing it, they are probably going to get into trouble. I don’t buy the religious discrimination angle, but I think the guy filing might win.
I’m not really commenting on the case overall, just the argument that because he was allowed to avoid serving pork in the past, that he should be treated the same now.
I find the argument ludicrous. The donut business is hitting hard times, people are not buying and eating donuts like they used to. Heck, even the mighty Krispy Kreme is having major problems.
To solve this downturn the donut business has been diversifying, e.g., selling iced coffees, bagels, sandwiches and soups.
Businesses do not operate in a fixed time. They have to be free to adapt to changing situations. To freeze a business in time makes absolutely no sense.
I’m a bit confused by some of this legal discussion. As I understand the article, the current contract has run out and they needed t enter into a new one. DD felt that the previous allowance that they made to permit the exclusion of pork was no longer a profitable one for them to make.
I don’t know how long these franchise contracts run but DD has certainly stepped up the marketing of their non-pastry product since 2000. Is there evidence that they have since allowed this for other franchises where space was not a consideration?
If not, then it seems that the case is being made that you cannot change your mind about making an accommodation. This will certainly produce the result that far fewer will be made in the first place.
But nevertheless, the pork is in the contract. While DD might have allowed this franchise to escape meeting its duty at some point in time, it does not mean that DD must allow this franchise to fail to meet contractual obligation for all time.
If we interpret contracts so strictly, that any deviation of the terms automatically and forever becomes new terms, then like other ‘zero tollerance’ policies, contracts will be enforced with an iron fist even if it is bad business for both parties, lest a new contract is written for them by the courts.
Getting away with violation of contract terms shouldn’t permit one to the right to get away with the same in perpetuity.
I can see where DD would want consistency though. Either no sandwiches or a full array of options. If I drove up to a DD and they said, “sorry we don’t do sandwiches,” I’d probably understand more than if they said, “we don’t do sandwiches with pork.” It makes DD look ridiculous. Also, what makes ones religious views reasonable and valid? Is there a minimum practicioner level? What stops anyone from proclaiming ludicrous individual religious views, like taking off every wednesday from work, and suing for discrimination if they are not met.
“What stops anyone from proclaiming ludicrous individual religious views, like taking off every wednesday from work, and suing for discrimination if they are not met.”
Nothing. And sometimes, they even win.
“It sounds, though, as if …he wanted to go ahead and keep selling the sandwiches without putting meat in them,…”
There are some kosher DD franchises and the ones that I’ve been in do not offer the meat sandwiches at all
However inconsistent DD’s enforcement of its franchise agreements, I think it would be terrible precedent for freedom of contract if Mr. Muslim were to prevail. There is nothing stopping him from opening his own halal donut shop. If DD is missing a business opportunity, that’s their business.
It is not religious discrimination to force a franchisee to sell your products. If you want to allow the store to be halal as a business decision in order to sell food in a Muslim neighborhood that is your right. However, you are under no obligation to do so forever. The only obligation that you would have it to inform the customers that the food is no longer halal. No franchisee should be able to demand that you exclude pork products from the menu. One does not have a “religious right” to decide what is sold at a Dunkin Donuts store. In fact, if the courts forced Dunkin Donuts to allow the owner to exclude pork, that would be a violation of the separation of church and state by making Dunkin Donuts conform to a specific religion.
By the way, this is not equivalent to having Dunkin Donut shops that are kosher. The shops are made kosher for the patrons, not for the owner. In fact, this issue came up recently where a franchisee was forced to change five kosher Dunkin Donut franchises to non-kosher ones.
Nonetheless, Willard kept five of his franchises kosher until last month. The change came after company officials allegedly told him that they wanted to standardize the menu and add nonkosher items. Though Willard was able to maintain the kosher certification at his store in the local Jewish community center, he said the company pushed him to bring bacon into a store in Potomac’s heavily Jewish Cabin John neighborhood.
http://www.forward.com/articles/no-donuts-no-peace-cry-kosher-protesters/
Thus the different is that the Muslim owner is attempting to force the company to conform to his religious beliefs, which should not be allowed by the Courts, while in the case of the kosher Dunkin Donut shops the patrons were petitioning Dunkin Donuts to keep the store kosher so that they could patronize it.
If Dunkin Donuts or any other food store wants to allow some of their stores to be kosher or halal that is their right. However, they can take away that right if they so desire. Nobody should be forced to conform to any religious beliefs in this country. This is so basic a right, the right to be free from any religion, that I’m sure the ACLU will issue a friend of the court brief on behalf of Dunkin Donuts.
Yes the last sentence was meant to be sarcastic. The ACLU only steps in when the issue is one of preventing Christian beliefs from being forced on anyone.
There are some kosher DD franchises and the ones that I’ve been in do not offer the meat sandwiches at all
That was noted in the judicial opinion, as well. If your argument is that everyone must serve pork, then you had better be prepared to show that, well, everyone serves pork. Dunkin’ Donuts couldn’t do that.
Why were Jewish franchisees treated differently from a Muslim franchisee? Maybe there are legitimate reasons why. Maybe not. But that’s a factual question to be decided at trial.
John Burgess,
Interesting. I do think that the spectrum among Muslims living in the West is shifting toward the expansive end of late, though. I’ve a few speculations as to why that’s the case, none of them terribly deeply-investigated.
First, having read the decision, I note that this is not a case of religious discrimination, but racial discrimination. That, I think, is a far weaker argument to be making, but it clearly won in this court.
Second, the non-enforcement of a contract does create new facts on the ground. If you don’t prevent people from crossing your yard to get to the neighboring park, you can permanently lose your right to that pathway. Take a look at ‘Adverse Possession’ laws.
If it can be done with real property, it can be done with other property and property interests. If you don’t enforce the terms of your contract, you can be deemed to have effectively re-written your contract.
I note that the DD was requiring the owner to sell pork products because he was relocating the franchise. Ws the original location predominantly Muslim? I note also that he had been doing this for 20 years. restaurant chains are tightening up their requirements as someone else pointed out they want to be consistent across the board. All fast food restaurants are looking to expand their offerings
Please post the docket number of the case.
Thanks
Am I entitled to open a Hindu “Sizzler” franchise?
i think WALID elkhatb is a good man with strong beleifs and i sallute him for his actions