The First Amendment and the Workplace

[rmcdra]

@xLady Tsukiyox
First off you are trying to reduce this to an argument about job safety when it is clearly not. It is about Brand Image. The company does not want him to wear this piece of jewelry because the company feels that by having this employee wear this jewelry it would promote an image the company does not want.

Secondly you are making it into a binary case where one need not apply. There is a valid third option and that is to work with the company to get a Reasonable Accommodation.

Thirdly the words "harmatia" and "het" are translated as the English word "sin". The word "sin" in English conveys a particular concept that does crossover to other religions. Many theistic religions have concepts of breaking divine law and sin is an accurate word to describe this. You hang up of the usage of the word seems to indicate either an inability to understand that Gods can be very strict and legalistic or (and I hope this is not the case) distract from the issue at hand and force the discussion into irrelvancy.

Fourth, you are making very bigoted remarks to give an example:

Quote:

Or your other friend could just deal with it, eat the meal and move on instead of picking a fight and being childish. Unless of course she got a rabbi to bless the food. Or she could also bring her own food if she felt uncomfortable with the selection. neutral

In the case of a company picnic, if the employer knew they had a religiously devout Jew (Notice that I put devote, don't try to twist it into a case about "bad Jews") the company would have to provide a reasonable accommodation for this employee. It would be discrimination to set up a situation where this hypothetical Jew would have to choose between not keeping Kosher or not eating.

This person would not be "being childish or picking fights" for asking e employer to provide a reasonable accommodation since they can't eat the food there. This attitude that "if it's the same for everybody then it's fair" is the same logic that is used to say a "flat tax" is fair or why restrictions on gay marriage is fair (ex. Laws are against gay marriage are fair since gays can marry people of the opposite sex just like everyone else). It's fallacious but I can't find what particular fallacy it is.

Finally yes the US government can establish laws concerning religion. It just can't set up laws that establishes a State Religion or forces mandatory following of any religious requirement.  

[Brass Bell Doll]

kage no neko

I don't feel the law should cover something like that. Some of the jobs I've applied to, they say that you must be able to cover all tattoos and take out all piercings for the job. If his job was like this, he took it anyway.. then went and got something against the dress code which would be sin to remove, then I feel that was a poor choice on his part. He is an employee of the company, a representative. He is someone that customers interact with, and the company may feel that something like piercings or tattoos aren't professional looking and give them a bad image, and I feel that the company should be able to preserve it's image with a dress code that employees must be required to follow.

One small detail is that he had these piercings long before he accepted the position. His previous supervisor had no issue with the piercings.

Having said that, there are reasons that these laws exist. The Civil Rights Act that I have mentioned protects several different classes of people- because our society views discrimination against these groups to be a social ill. It is easy for us to see a company wanting to preserve it's image by hiring only fair skinned people would be wrong, but faith, because it isn't something that is usually shown on one's skin, is more difficult to deal with.

If we can agree that prohibiting employment based on the color of one's skin is wrong, why would other mandated physical characteristics be acceptable things to discriminate against? If an employer felt that an employee who wore a hijab would give their company a bad image because September 11th instilled a lot of fear about Muslims, should he be able to allow those prejudices to cause discrimination?

kage no neko

I don't feel this requires an accommodation. When I read "are you able to do the job with or without reasonable accommodation" I think "if I need help lifting this 50 lb bag of seed, if someone will assist me will I continue the job" or "if I broke my leg and needed a wheelchair, would a different job that I could do be provided to me". I don't think anything about them saying "okay, sure, we'll let YOU wear a necklace because your religious states you NEED it, but noone else because their religions don't require it, even though they'd like to".
I can understand scarfs (especially with cancer patients who just lost their hair), but I don't have any problem whatsoever with banning hats.

I'm sorry, but I think we have hit a small communication snag.

That section of an employment questionnaire uses the term "able" to refer to the capacity to perform the work and because of this "accommodation" in that sentence is about accommodation to perform the duties assigned.

Accommodation in the sense I am using it is discussing a legal concept regarding allowances made by a company to ensure the company and the employee are physically and fiscally protected without being discriminatory.

Above you mentioned that scarfs may be a reasonable exception to a policy if I read your post correctly. If they accommodate those who need scarfs, why not those who need to have their piercings?

kage no neko

Then the old manager was at fault, and the company itself shouldn't be to blame. Your friend was aware of the rules, and that they were being bent, and went along with it. It's not the company's fault that he was breaking rules and that someone else was allowing it, and now a new manager is making sure they follow the rules. That'd be like working at a fast food place, not sweeping the floor properly 'cause your manager doesn't care, and another manager firing you for not doing your job properly. I mean, one manager didn't care, so you should be upset at the company instead of having followed the rules from the beginning, like you should've?

I feel this is comparing apples to oranges. In one case, we are talking about a standard that has to do with religious prohibitions. In another, we are talking about a standard that has to do with safety. Because of this, I do not think we can honestly make that comparison because I acknowledge that issues wherein the safety of others is at risk poses an undue hardship to the employers.

kage no neko

Perhaps I don't understand this. How would the right to religion be upheld in a workplace, that'd basically break the rules of the company? Does that mean that the company itself has no rights to maintain itself properly or else risk discriminating against someone?

In practice, the company is expected to maintain it's standards, but accommodate those who the standards harm through discrimination.

The law is designed to view employees as people, not worker drones, and to respect the individual needs people have rather than force unnecessary conformity. I stipulate unnecessary because some conformity- such as that for safety, is needed.

kage no neko

Ah. Well, that's at least a little reasonable.. I guess.

He has a clause in his living will that the only medical situation they can remove them for is an MRI- and that is only because the MRI would rip them out of his ears anyway.

kage no neko

Then I suggest he ask who he's bonded to if it'd be okay for the deity to accommodate him while he straightens out the situation with work?

It isn't acceptable based on the ritual.

kage no neko

I realize this is repetitive from something I responded to further up, but does that mean that the company's right to establish a dress code is broken any time someone says "I have the right to wear this because of my religion"? and not at all be able to do anything about it or else fear being sued?

This is an excellent question. The answer to the question is no, the company's right to is dress code isn't tossed out every time someone says "My religion says..."

There are conditions that need to be met. I've been using certain terms "reasonable accommodation", "undue hardship" and "sincerely held belief"- or variations thereof.
I selected these terms from the law itself, but they're useless unless we understand what they mean.

"Reasonable accommodation" is an accommodation that does not cause undue hardship for the business.

"Undue Hardship" is a term that describes three things:
The ability for the business to function, make money and the safety of it's employees and customers.

The ability for the business to function is viewed in terms of both operation and inter-relation of employees. If the business cannot produce to standards, or if the other employees feel threatened or are unable to do their jobs, an accommodation isn't granted.

If an employer can demonstrate they will loose money because of an accommodation, an accommodation isn't granted.

If the accommodation is a safety issue, the accommodation isn't granted.

These are the conditions when an employer can deny an accommodation.

The other side of this is when is an employee allowed to ask for an accommodation? The term "sincerely held belief" is key to that.

I mentioned my Jewish friends earlier. One of my Jewish friends loves herself a good bacon cheese burger. An associate keeps kosher. At the company picnic my friend isn't entitled to demand a kosher meal because she doesn't keep kosher. Her associate who does keep kosher is entitled because she maintains the sincere belief that keeping kosher is part of divine law and she is obligated to obey that law. They're both Jewish, but being a card carrying member of a religion isn't what grants you the rights, it's the individual's sincere faith that ensures these rights.

This is where the Anti-Establishment Clause really comes in. Because our government cannot create a list of acceptable religions and unacceptable ones- of who is a member and who is not a member or anything of that nature, it is the individual who sincerely believes in something that is protected- and not an agency, commission, bureau or other body of bureaucracy.

This is why even though not all women wear the hijab, Muslim women who sincerely believe it is a requirement would be entitled to an accommodation- as long as there is no undue hardship for the employer.

kage no neko

I'd call going homeless and not being able to afford to eat "life threatening". neutral

I do not think you or I are in a position to debate semantics with the spirits he contracted with. wink I imagine their response based on his accounts would be something along the lines of "be more resourceful"- which includes standing up for his rights with his current employer.

Not that he would starve however.

kage no neko

So he has to have them IN at all times, not just on him? Blah. Too strict for me. xd

All times unless they're about to be ripped out by an MRI or he is in a spiritual ritual where keeping them is unacceptable. 3nodding

I understand your feelings on how strict it is. I think it is echoed by a lot of others here as well. This is why I think it is important that your boundaries be respected- it isn't okay to expect you to do something like what he has done, but in that same regard, I do not feel it is okay to expect him to do as you would do for yourself either.

That is the protection he seeks afforded to him- that others not impose what is right for them onto him because of his religious obligations.

kage no neko

Then good luck to him.

If this is a heartfelt wish for his good luck, may I pass this on to him?

kage no neko

And I think you're amazing at how you can keep such a level tone (at least how I interpret it) in arguments. smile

Thank you, that is a deeply meaningful complement.

Sanguina Cruenta

This could be its own topic, but, on religion vs jobs:

Personally I'd rather be Tru to my gods and be unemployed than working somewhere where I would be required to forsake religious practices, break oaths, betray my deities or act counter to my higher ideals.

I'd also ask my gods to help me find a job that was appropriate. It is a fair request and I would expect that they would help.

I'm inclined that way as well- with one stipulation. I have equal obligations to other people as well (my partner and their well being for one), and in situations where the two may conflict, I would need to evaluate the specific situation.

If I had been Abraham on the mountain with my child, I'm afraid the Jewish God would have been out of luck.

rmcdra, thank you for your post. It was an excellent summation of my previous post, and while I may not have worded it that way, I feel it does help clarify things.

rmcdra

In the case of a company picnic, if the employer knew they had a religiously devout Jew (Notice that I put devote, don't try to twist it into a case about "bad Jews")

I wanted to add, your use of devout in this case seems to be with the same intention that the law uses "sincerely held belief".

This stipulation is important. Whenever I take on a religious advocacy project, this is the first and most important thing to establish.  

[Yanueh]

Brass Bell Doll

I do not feel this is the case. Perhaps you could explain your reasoning and why it is a violation of the First Amendment?

Because it's a law respecting a particular religion. Let me put it this way: if it doesn't pass the Lemon test, it's unconstitutional.  

[kage no neko]

I think I understand your position better now, and I also think I've figured out my problem with the situation. He's gotten himself into a situation I never would've, because I don't agree with the terms of why he has to wear them. It's much too strict for me. I also think I don't know all the details, so I'm unable to help him find a way around the problem, which leaves the only solution to either quit/be fired, or to fight against it. I have noted and think it's a good thing that he's only told the people necessary about why he feels he should be allowed to keep them in. I still think if he lives in a at-will state for him to watch out, because they could say "okay, keep your earrings in" and then fire him for something seemingly unrelated. My old job, the manager didn't like me, so I got fired "for not walking back and forth quickly enough". neutral And it pisses me off that it's used against me on a job application now (I haven't had a job since, and that was over 2 years ago).

One thing, if anything, that I say is on his side.. that they hired him, with him wearing them and didn't have any problem with them. It'd be like.. a grandfather clause? If he got them put in WHILE working there, it'd be a different story.. but that he's had them in from the very beginning, no way.

And yes, I do mean it, good luck to him. I think he's brave for standing up for it, though I don't fully agree with the situation. Hopefully he'll win. And yes, feel free to tell him I said so. smile  

[rmcdra]

Yanueh

Brass Bell Doll

I do not feel this is the case. Perhaps you could explain your reasoning and why it is a violation of the First Amendment?

Because it's a law respecting a particular religion. Let me put it this way: if it doesn't pass the Lemon test, it's unconstitutional.

Okay let's examine the Lemon Test.

Lemon Test

...its principal or primary effect must be one that neither advances nor inhibits religion;

I do not see how a particular religion is being advanced by making exceptions but I do see how religions can be inhibited by not making such exceptions.  

[Brass Bell Doll]

kage no neko

I think I understand your position better now, and I also think I've figured out my problem with the situation. He's gotten himself into a situation I never would've, because I don't agree with the terms of why he has to wear them. It's much too strict for me. I also think I don't know all the details, so I'm unable to help him find a way around the problem, which leaves the only solution to either quit/be fired, or to fight against it. I have noted and think it's a good thing that he's only told the people necessary about why he feels he should be allowed to keep them in.

His faith is one I have never heard of, I think it might be unique to him, but some of the gnosis he has shared with me I was able to confirm.

kage no neko

I still think if he lives in a at-will state for him to watch out, because they could say "okay, keep your earrings in" and then fire him for something seemingly unrelated.

If my understanding is correct, retaliation clauses in the law can be used to fight against that kind of situation.

kage no neko

My old job, the manager didn't like me, so I got fired "for not walking back and forth quickly enough". neutral And it pisses me off that it's used against me on a job application now (I haven't had a job since, and that was over 2 years ago).

I'm sorry to hear that. On the bright side, most employers I have dealt with can understand that personal grudges can effect the workplace- and the listed reason for your termination sounds absurd enough that I can see employers giving proper weight to your explanation.

kage no neko

One thing, if anything, that I say is on his side.. that they hired him, with him wearing them and didn't have any problem with them. It'd be like.. a grandfather clause? If he got them put in WHILE working there, it'd be a different story.. but that he's had them in from the very beginning, no way.

I don't think a grandfather clauses is the way to go, because I do respect the company's right to maintain a certain image as long as it doesn't infringe on someone's rights not to be discriminated against. Does that make sense?

kage no neko

And yes, I do mean it, good luck to him. I think he's brave for standing up for it, though I don't fully agree with the situation. Hopefully he'll win. And yes, feel free to tell him I said so. smile

Thank you.

Yanueh

Because it's a law respecting a particular religion. Let me put it this way: if it doesn't pass the Lemon test, it's unconstitutional.

The point made by rcmdra is the one that has been used in the case law I am familiar with.

I do not see anything to suggest that protecting the right to practice a religion is the same as advancing it.

To add:
I feel some of the editorial comments made on the site show a lack of familiarity with US History. Under the section on the Wall of Separation, it suggests that Thomas Jefferson had no hand in the US Constitution. While he was not the head of the committee, he was amongst several men who served to produce the document.  

[Yanueh]

rmcdra

I do not see how a particular religion is being advanced by making exceptions but I do see how religions can be inhibited by not making such exceptions.

By "neither inhibit nor advance," they mean laws that specifically target religious beliefs. Outlawing all jewelry, including religious jewelry passes. Outlawing jewelry of religions you don't like fails.

Allowing a member of a specific religion to wear his/her trinkets where other religions or non-religious ideas wouldn't be allowed to be expressed also fails the Lemon test because it has no secular purpose. In order pass, the law would have to permit anyone to wear any kind of jewelry that symbolizes or promotes any religion, philosophy, or belief. IE, the same law that allowed someone to wear a pentacle would also have to allow someone to wear an A for atheism or a democratic donkey.  

[rmcdra]

Yanueh

rmcdra

I do not see how a particular religion is being advanced by making exceptions but I do see how religions can be inhibited by not making such exceptions.

By "neither inhibit nor advance," they mean laws that specifically target religious beliefs. Outlawing all jewelry, including religious jewelry passes. Outlawing jewelry of religions you don't like fails.

Allowing a member of a specific religion to wear his/her trinkets where other religions or non-religious ideas wouldn't be allowed to be expressed also fails the Lemon test because it has no secular purpose. In order pass, the law would have to permit anyone to wear any kind of jewelry that symbolizes or promotes any religion, philosophy, or belief. IE, the same law that allowed someone to wear a pentacle would also have to allow someone to wear an A for atheism or a democratic donkey.

Then that would mean that exceptions that allow Muslims to wear hijabs fails the Lemon Test as well. Is a correct assessment?  

[kage no neko]

Brass Bell Doll

His faith is one I have never heard of, I think it might be unique to him, but some of the gnosis he has shared with me I was able to confirm.

I don't question his faith, it's just something I wouldn't be able to do.

Brass Bell Doll

If my understanding is correct, retaliation clauses in the law can be used to fight against that kind of situation.

How would those work?

Brass Bell Doll

I'm sorry to hear that. On the bright side, most employers I have dealt with can understand that personal grudges can effect the workplace- and the listed reason for your termination sounds absurd enough that I can see employers giving proper weight to your explanation.

I'm just not sure how to explain that during an interview though. I think saying it plainly makes it sound like I'm making it up. xd And when they contact him, he probably says something bad about me (when he likely doesn't even remember me.. worked there 3 months and he couldn't remember my name).

Brass Bell Doll

I don't think a grandfather clauses is the way to go, because I do respect the company's right to maintain a certain image as long as it doesn't infringe on someone's rights not to be discriminated against. Does that make sense?

Yeah. smile  

[rmcdra]

I wonder if the EEOC requirements for reasonable accommodation would fail the Lemon Test?

Religious Discrimination: 12-IV Reasonable Accommodations  

[Brass Bell Doll]

Yanueh

By "neither inhibit nor advance," they mean laws that specifically target religious beliefs.

I feel there is a misunderstanding here.

The Lemon Test is a standard by which the government is able to pass laws in relation to religion.

When we look at the Lemon Test as a way to examine laws, we look at the three requirements it provides:

First, the law must have a secular legislative purpose.
The secular legislative purpose in requiring accommodation is to protect people from discrimination- this protection is applied equally to all religions and the non-religious. Because of this, the legislation stands without violating the first prong.


Second, the law must not have the primary effect of either advancing or inhibiting religion.

In it's ruling in Lemon v. Kurtzman the court wrote "In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity."

The protection against religious discrimination laws does not provide sponsorship or financial support to any religion and it does not involve the government in religious activity because the activity is not in the religious rituals themselves, but in the assurance of the right to practice. In this way, the law passes the second prong.

Third, the law cannot cause an "excessive government entanglement" with religion. Since the effect is to insure the rights of people, and not the rights of religions, it passes the third prong.

Yanueh

Outlawing all jewelry, including religious jewelry passes. Outlawing jewelry of religions you don't like fails.

The problem is that there is no secular benefit to banning jewelry, so in that sense, any law attempting to do that would not pass the Lemon Test.

Yanueh

Allowing a member of a specific religion to wear his/her trinkets where other religions or non-religious ideas wouldn't be allowed to be expressed also fails the Lemon test because it has no secular purpose.

I feel there is another misunderstanding. If other members need accommodations under this law- they are equally protected and that is why the Lemon Test works.

Yanueh

In order pass, the law would have to permit anyone to wear any kind of jewelry that symbolizes or promotes any religion, philosophy, or belief.

This is indeed the case of the laws under which my friend is seeking an accommodation, so there is no conflict.

Yanueh

IE, the same law that allowed someone to wear a pentacle would also have to allow someone to wear an A for atheism or a democratic donkey.

The A for Atheism would be protected, but because being a democrat is not a protected class, it would not be protected by this law because these specific laws address discrimination to specific groups of people. In that sense, while another law could pass that would make political affiliation a protected class, the laws would then apply to them.

kage no neko

I don't question his faith, it's just something I wouldn't be able to do.

I didn't intend to insinuate anything, I was just making conversation.

kage no neko

How would those work?

You have to provide proof in a civil court that it is more likely than not that you were fired for drawing attention to the problem you brought up, and that they trumped up the excuse to fire you. It is a difficult thing to prove, but it isn't impossible.

kage no neko

I'm just not sure how to explain that during an interview though. I think saying it plainly makes it sound like I'm making it up. xd And when they contact him, he probably says something bad about me (when he likely doesn't even remember me.. worked there 3 months and he couldn't remember my name).

Employers are very limited in what they can say about previous employees. My impression after interacting with you is that you come across as very polite and sincere. I would trust in that.  

[Yanueh]

rmcdra

Then that would mean that exceptions that allow Muslims to wear hijabs fails the Lemon Test as well. Is a correct assessment?

There's no secular purpose to allowing Muslims and Muslims alone to wear their sacred scarves.

Any ruling that grants members of a religion special privileges that no-one else can exercise is unconstitutional because it respects an establishment of religion. Either everyone should be allowed to wear them, or no-one should. Period.

Quote:

The A for Atheism would be protected, but because being a democrat is not a protected class

But in essence, it's no different than belonging to any other group.  

[Brass Bell Doll]

Yanueh

There's no secular purpose to allowing Muslims and Muslims alone to wear their sacred scarves.

As I mentioned before, the secular purpose is to protect against discrimination, while this should not be limited to Muslims, as some other religions require head coverings.

Yanueh

Any ruling that grants members of a religion special privileges that no-one else can exercise is unconstitutional because it respects an establishment of religion. Either everyone should be allowed to wear them, or no-one should. Period.

I feel that there is a misunderstanding of how this reflects on the Constitution.

If it limited the rights to a specific religion, that would be an establishment of that religion. However, the laws are provided to protect anyone with sincerely held beliefs as long as no undue hardship is experienced by the employer. Because of this, it does not violate the Establishment clause.

Does that make sense?

Yanueh

But in essence, it's no different than belonging to any other group.

Other protected classes fall under this and other laws, but your political affiliation is not one of them.
Protected classes arise because of observed discrimination. If it could be substantiated that a political affiliation lead to discrimination, they could pass legislation.  

[Yanueh]

Brass Bell Doll

As I mentioned before, the secular purpose is to protect against discrimination, while this should not be limited to Muslims, as some other religions require head coverings.

Discrimination from who, exactly? Laws that happen to catch your religion in the crossfire is not discrimination. Discrimination would be making a law that specifically targets religion.

Quote:

I feel that there is a misunderstanding of how this reflects on the Constitution.

It's in the First Amendment, not the Constitution itself. Either way, let's take a look at the text.

"Congress shall make no law respecting an establishment of religion..."

The use of the word "respecting" in the First Amendment means "concerning" or "in regards to." In other words, "Congress shall make no law in regard to an establishment of religion." If you make a law that grants the religious special rights, that's making a law in regard to a religion, isn't it?

Quote:

If it limited the rights to a specific religion, that would be an establishment of that religion.

The FA does not say "a religion." It just says "religion." If you allow the religious a right, then the non-religious should be allowed that same right.

Quote:

Other protected classes fall under this and other laws, but your political affiliation is not one of them.
Protected classes arise because of observed discrimination. If it could be substantiated that a political affiliation lead to discrimination, they could pass legislation.

It's the same in the sense that you belong to a distinct group that holds certain ideas and philosophies.

Either way, since the boss in question is not a member of Congress trying to make a law violating your friend's religion, I believe what he needs to do is file a complaint of violation of Title III of the Civil Rights Act of 1964.