Football analyst Craig James, who is filing a federal lawsuit in Dallas, claims that “Fox Sports trample[d] my religious liberty” by not giving him further work as a TV commentator after a single appearance — he “had yet to sign a contract” — after it became aware that he had said controversial things while running for the U.S. Senate seat from Texas ultimately won by Ted Cruz. [Washington Post, Feb. 2014 Dallas News] James is now affiliated with the Family Research Council, where his biography notes: “Craig is known for his ability to see an opportunity and for his relentless pursuit of uncovering every rock to make sure he knows the deal before he buys it.”
I’ve got a new post up at Cato about the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores Inc. The Court’s 8-1 ruling on fairly narrow grounds in favor of the headscarf-wearing claimant isn’t very surprising, for reasons I explain in the piece. The ruling could expose employers to more liability, particularly of the sued-if-you-do, sued-in-you-don’t variety, since it encourages employers to pry into employees’ religious views or adopt stereotyped views about what their religious scruples should be presumed to be. Still, eight Justices were content to resolve the dispute on relatively dry statutory interpretation grounds, with only Justice Clarence Thomas interested in interrogating the law at a more fundamental level. (Why, he wonders, is equal treatment based on non-religious considerations now considered “intentional discrimination” based on religion?)
P.S. More coverage: Daniel Fisher, Daniel Schwartz, Philip Miles. (More: Marci Hamilton.) And when might a National Review author favor limiting private employers’ liberty? When it’s a religious discrimination case.
“An employee who refused to submit to biometric hand scanning because he feared the scanner would imprint him with the “Mark of the Beast,” was awarded $150,000 in damages by a federal jury …. The U.S. Equal Employment Opportunity Commission sued Consol Energy on behalf of Butcher for allegedly forcing the long-time mine worker to retire because the companies’ newly installed technology violated his religious beliefs.” [Michael Stone, Patheos; Biometric Update, opinion and EEOC press release via Eugene Volokh, Jon Hyman and more (Sixth Circuit rules for employer in case where employee interprets Social Security number as mark of the Beast, because use of those numbers in hiring is mandatory under federal law)]
A lawsuit claims Costco did not do enough to accommodate the religious scruples of Brooklyn, N.Y. grocery clerk Jean Camara. He says managers sent him outside to work with shopping carts after he refused to handle pork or alcohol on checkout lines, and ignored his request for a transfer to the electronics department [WABC]
The Supreme Court is considering the case of a woman who sued torrid-youth retailer Abercrombie & Fitch, saying it discriminated against her based on religious belief when it failed to waive its “Look Policy,” in which sales personnel are expected to wear only clothes sold by the store, to accommodate her modesty headscarf. Never mind whether this demand would be a reasonable one in itself; the case has gone up to the U.S. Supreme Court in large part because of a second issue, whether the store was legally obliged to grasp the situation intuitively as based on religion and pre-emptively accommodate Samantha Elauf “even though Elauf never informed them that she would need a religious accommodation.” A district court ruled that it was so obliged, the Tenth Circuit reversed, and now the Supreme Court is hearing the case at the EEOC’s request.
Requiring employers to offer a religious accommodation before they are on notice that one is sought requires them to act on “crude stereotypes or pry into employees’ personal lives,” write Ilya Shapiro and Julio Colomba. Not all employee requests on subjects such as modesty, diet, or weekend attendance are associated with religious affiliation and observance, while conversely many persons with genuine or sincere religious affiliation or belief do not conform to stereotypical expectations about what their religion might require of them in the workplace. Individual employees are thus “in a significantly better position to identify conflicts than employers.” The Cato Institute has filed an amicus brief on Abercrombie’s side arguing that the Court should reject the EEOC’s position as unworkable, unfair, and not required by the statute.
Related: Eugene Volokh has been posting on religious-exemption and religious-accommodation law at Volokh Conspiracy. For those who imagine, reading the Hobby Lobby and state-RFRA coverage, that religious exemptions have mostly been favored by conservatives over liberal opposition, he reminds us that the actual history is nearer the opposite. And he explains why his own view is that an optimal approach would include a mix of legislatively and judicially crafted (consistent with legislative wishes) religious exemptions and accommodations, but not necessarily a constitutional entitlement to accommodation.
Is a cemetery an objectionable land use, and does it matter if the neighbors’ objections are religious? [Gideon Kanner]
- NYC pols, hotel interests unite in the cause of suppressing AirBnB [CNBC, Matthew Feeney/Cato, more, NY mag]
- David Bernstein on Justice Sotomayor’s dissent in Schuette, the Michigan affirmative action case [Cato Supreme Court Review via Volokh Conspiracy, and thanks for quoting my views]
- Restaurant’s amusing response to “do you know I’m a lawyer?” [Above the Law]
- Cronyism in city governance: its enablers, consequences and possible cures [Aaron Renn, Urbanophile, first, second, third, fourth posts; Lincoln Steffens, 1905, on the evils of Rhode Island]
- N.J. toll-taker’s suit: it’s my right to tell motorists “God bless you” whether turnpike authority likes it or not [AP/CBS New York]
- “Q: What has worse terms than gym memberships and class action settlements? A: This class action over gym memberships.” [Center for Class Action Fairness on Twitter]
- US border security great at keeping out bagpipes and Kinder Eggs, not so great at keeping out Ebola [Mark Steyn, more Steyn on bagpipes and earlier on musical instrument confiscations here, here, etc.]
- Latest NLRB jaw-dropper: ban on retaliation against “concerted” labor action extends to employee acting alone in self-interest [Fresh & Easy case; Hackman/Barley, Vorys, Ian Gabriel Nanos/Management Memo]
- Connecticut Law Tribune assails workplace arbitration, and in so doing reveals lawyerly prejudices [Schwartz]
- Religious-discrimination complaint to EEOC demands reinstatement of newspaper editor out of step with views of paper’s owner [Romenesko]
- Unfair to reveal to customers costs of policy they may favor? [WCCO; Coyote, who relatedly is disrespectful to Paul Krugman] “Why is there such a difference of opinion on the employment effects of a minimum wage increase?” [Pierre Lemieux, Cato Regulation magazine, PDF]
- “NLRB goes rogue against small business” [Rick Manning, The Hill]
- Among biggest legal headaches of telecommuting for employers: wage-and-hour law implications [Joseph Leonoro, Steptoe & Johnson]
- Canada: “Farmers’ Kids are ‘Underage Labor’ and Must Stop Working” [Lenore Skenazy]
As I explain in a new Cato post, Eugene Volokh has been blogging this week on the proper role of the courts in recognizing or ignoring religious law, whether Christian, Jewish, or Islamic. Oklahoma passed a measure banning by name the use of Islamic sharia law, but the Tenth Circuit struck that law down as discriminating against a particular religion. Meanwhile, lawmakers in other states have introduced legislation on the subject. Earlier.
- Reminder: federal panel finally mulling reform of ultra-costly pretrial discovery, now’s the time to send comments [Kyl/WSJ, earlier]
- Michigan woman convicted of false rape claim had sent man to prison for 10 years in earlier case [ABA Journal]
- Strickland, key figure in disastrous CPSIA law and then chief at NHTSA, lands at BigLaw’s Venable [AutoNews, Detroit News]
- A religious accommodation too far? Devout student at secular university asks not to work with female classmates [York U., Ontario; CBC via @amyalkon, also related on Nova Scotia aikido class] Inviting shop clerks to set up “no booze/pork” check lines is a sensitivity too far [Andrew Stuttaford, Secular Right]
- “Top 2013 Jury Awards: Price-Fixing, Nursing Home Liability, Defamation” [Margaret Cronin Fisk, Bloomberg] Top legal ethics stories of 2013 [Legal Ethics Forum and followup on R v Farooqi & Ors]
- Liberate history-talk: “Another Battle Against Silly Tour-Guide Regulations” [Ilya Shapiro] Handing out $1,000 fines in Charleston, S.C. [Brian Doherty]
- “The line between Salon and Granma is getting awfully blurry” [@dandrezner; more about DoNotLink.com]