Court Refuses To Allow High School Senior To Wear Eagle Feather On Cap At Graduation

In Griffith v. Caney Valley Public Schools, (ND OK, May 20, 2015), an Oklahoma federal district court adopted a magistrate's recommendaiton (full text) and refused to grant a preliminary injunction to high school student Hayden Griffith who wanted to wear an eagle feather on her mortar board tassel at her high school graduation last night.  The court rejected Griffith's claim that the school district's ban on cap decorations violates her free speech and free exercise rights and her rights under the Oklahoma Religious Freedom Act (ORFA). Discussing the ORFA claim, the court concluded that Griffith had not shown that the policy substantially burdens her free exercise of religion, saying:

[Griffith] testified that wearing the feather shows her respect for God and for the tribal elder who gave the feather to her, but that failing to attach the feather to her cap would not result in any religious detriment to her. Thus, attaching the feather to her graduation cap would be a personal expression of religious significance to Griffith, but it is not a religiously motivated “practice” ... or an activity that is “fundamental” to her religion.... Nor does the policy prohibiting decorations on graduation caps during the ceremony “meaningfully curtail” her ability to express adherence to her faith..... The policy does not prevent Griffith from attaching the feather to her cap at any time other than the graduation ceremony. She may attach it to her cap it up until she enters the graduation ceremony, and she may affix the feather to her cap immediately after the ceremony. The school superintendent also offered to re-pose for the professional photographer with Griffith wearing her feather on her cap after the ceremony. In sum, Griffith may display the feather as she wishes throughout her celebration of her graduation, other than during the graduation ceremony with her fellow classmates.

Tulsa World reported on the decision.

Jewish Sheriff's Office Employee Sues Alleging Religious Discrimination and Harassment

The Florida ACLU announced yesterday that it has filed a federal lawsuit on behalf of a Jewish employee of the Collier County, Florida Sheriff's Office alleging religious discrimination and harassment.  The ACLU summarized the complaint:

In 2009, Mr. Newmark requested religious accommodations to allow him to observe the tenets of his Jewish faith, including being allowed to not shave his beard and wear a head covering, and to have a schedule that accommodated his observance of the Jewish Sabbath as well as religious holidays like Passover and Yom Kippur.

Mr. Newmark’s requests for accommodations were denied, he was demoted from his position as an officer within the department’s gang unit to a non-certified civilian position of jail technician, and a campaign of harassment began that included being referred to by Sheriff’s staff as “a hairy Jewish mother-[expletive],” and having a Nazi Iron Cross flag placed outside his cubicle.

In 2012 – by which time Mr. Newmark had become a member of the Hasidic sect... Mr. Newmark was retaliated against for filing a complaint with the EEOC and threatened that he would  be forced to shave his beard and cease wearing his yarmulke.

The complaint (full text) in Newmark v. Collier County Sheriff's Office, (MD FL, filed 4/27/2015), asks for declaratory and injunctive relief as well as damages for violation of Title VII of the 1964 Civil Rights Act. The Fort Myers News-Press reports on the filing of the lawsuit.

Abercrombie Changes Dress Code As Supreme Court Decision Nears

As it awaits a Supreme Court decision in a case challenging its failure to provide a religious accommodation to its dress code for employees (see prior posting), Abercrombie & Fitch announced Friday that it will no longer hire employees based on body type or physical attractiveness.  According to the Washington Post,  the change comes as the company faces declining sales and less than six months after the long-time and controversial CEO Mike Jeffries stepped down.  The company's new dress code softens its "Look Policy," but employees among other things are still barred from wearing head coverings.  However the company says it will accommodate disabilities and "sincerely-held religious beliefs."

Supreme Court Denies Certiorari In Title VII Case

Last Monday, the U.S. Supreme Court denied certiorari in Macon v. J.C. Penney Co., (Docket No. 14-946, cert. denied 4/20/2015) (Order List.)  In the case, the U.S. 6th Circuit Court of Appeals in a Dec. 29, 2014 opinion (full text) affirmed the district court's dismissal of plaintiff's Title VII religious accommodation claim.  Plaintiff was fired when she refused to sign her company's Statement of Business Ethics because according to her Christian beliefs the Bible prohibited her from taking oaths or making promises. She also refused to sign a document titled Our Integrity Promise because it would prevent her from writing an autobiography that included her work experiences. BNA Daily Report for Executives (subscription required) reports on the denial of review.

Cranston Schools Go Back To Calendar With Religious Holdiays Off

As previously reported, this current year the Cranston, Rhode Island School Committee changed their traditional calendar that had school off for Rosh Hashanah, Yom Kippur and Good Friday. This generated a lawsuit by teachers who, under the revised policy, did not qualify for taking Good Friday off with pay.  On Friday, the Providence Journal reported that the Cranston School Committee has now decided to reinstate its traditional policy. It adopted a 2015-16 school calendar that again has Rosh Hashanah, Yom Kippur and Good Friday as school holidays.

New Employment Discrimination Suits-- Ballpark Ushers and Firefighters

NBC Washington reported yesterday that three ballpark ushers for the Washington Nationals who lost their jobs have sued alleging religious discrimination against Seventh Day Adventists. Plaintiffs claim in the federal court lawsuit that the team recently changed its work policy and schedule for ushers in a way that precludes them from taking off for religious reasons from Friday evening and Saturday afternoon games. There has also been an increase in home games and concert events at the park. During the 2013 season, the team accommodated plaintiffs' Sabbath observance, but at the end of the season fired them because of their need to miss work on their Sabbath.

Connecticut Law Tribune reports on a recent suit in federal district court in Connecticut by a Jehovah's Witness firefighter who contends that there has been a pattern of harassment against him ever since he refused several years ago for religious reasons to march in a Memorial Day Parade. He also refuses to take part in flag-raising ceremonies at the Hamden fire house.

Interim Arrangement Gives Rhode Island Teachers Good Friday Off This Year As Lawsuit Advances

The Providence Journal reported ysterday the Cranston, Rhode Island School Department has reached a short-term settlement with the Cranston Teachers' Alliance in a lawsuit over teachers' right under the collective bargaining contract to take off for Good Friday. (See prior posting.) Teachers who put in their requests by Wednesday can take Good Friday off this year.  When the court ultimately interprets the collective barganing contract, teachers could be forced to pay the district back for the day off.

Alaska Free Exercise Clause Defense To Illegal Salmon Fishing Is Rejected

In Phillip v. State of Alaska, (AK Ct. App., March 27, 2015), an Alaska court of appeals refused to dismiss criminal charges against 13 Yup'ik Eskimo fishermen charged with violating the Alaska Department of Fish and Game’s emergency orders restricting king salmon fishing on the Kuskokwim River.  The Yup'ik claimed that their conduct is protected by the free exercise clause of the Alaska Constitution. The Alaska Supreme Court has held that the test under the state Constitution for whether an individual is entitled to a religious exemption from a facially neutral law requires assessing the validity of the individual's religious interest and then determining whether the State can prove a compelling interest that would justify curtailing the religiously-based practice.  Applying that test here, the appeals court said:

[I]t would seriously hamper the Department’s ability to manage the fishery for sustained yield if courts required the State to show that each emergency action it took was the least restrictive alternative available. ... Instead, we agree with the district court that the question ... is whether the State can meet its burden of proving that its compelling interest in maintaining a healthy and sustainable king salmon population would be harmed if the court granted the religious exemption sought by the defendants.... [T]he State met that burden here.

AP reports on the decision.

Suit Challenges School System's Refusal To Give Teachers Good Friday Off

In Cranston, Rhode Island, this year for the first time the school committee eliminated Yom Kippur, Rosh Hashanah and Good Friday as school holidays.  Instead, it negotiated a collective bargaining agreement that allows teachers to take up to two days off each school year if they are required to attend religious services during the school day.  AP reports that on Monday the union filed suit because the school system has denied requests from some 200 teachers to take Good Friday off, even though they allowed teachers who requested it to take Rosh Hashanah off last fall. School Superintendent Judith Lundsten  says that the Good Friday requests are not covered by the collective bargaining agreement because Good Friday does not require attendance at religious services during school hours.  According to the Cranston Patch, the suit claims that the discriminatory denial of religious leave here is a breach of the collective bargaining agreement and a violation of the state Religious Freedom Restoration Act.  [Thanks to Tom Rutledge for the lead.]

Britain's Equality Commission Reports On Religion In the Workplace and Service Delivery

Yesterday Britain's Equality and Human Rights Commission released a report on its Consultation launched last year seeking evidence on religious discrimination and accommodation in Britain. The 218-page report, titled Religion or Belief in the Workplace and Service Delivery, reports on information received from nearly 2500 individuals and organizations. Here is an excerpt from the Commission's summary of key findings:

Some employees or service users stated that they had experienced no or few negative issues in their workplace or in receiving a service which they attributed to the view of employers or service providers that religion or belief was a private matter and should not be discussed in the workplace or the service.

Some employees and students stated that they had encountered hostile and unwelcoming environments.... The issues raised concerned the recruitment process, working conditions, including the wearing of religious clothing or symbols, promotion and progression, and time off work for religious holidays and holy days. Some reported that particular beliefs were mocked or dismissed in the workplace or classroom, or criticised unwelcome 'preaching' or proselytising, or the expression of hurtful or derogatory remarks aimed at particular groups....

Many participants were concerned about the right balance between the freedom to express religious views and the right of others to be free from discrimination or harassment. Specific issues raised included conscientious objection in relation to marriage of same sex couples and how to protect employees from harassment and discrimination by staff, customers or service users with a religion. There was a marked divergence of opinion about when it was desirable and appropriate to discuss religious beliefs with service users during the delivery of a service.

The Commission's press release on the report emphasized some of the concerns expressed by respondents. The report is discussed further at Law & Religion UK blog.

Fired Employee Claims HIs Religious Objections To Direct Pay Deposit Should Have Been Accommodated

According to Northwest Ohio Media Group, an employment discrimination lawsuit was filed last week in an Ohio federal district court by a man who has a history of filing religious discrimination lawsuits against large companies.  Plaintiff Lee Yeager says that his Christian fundamentalist beliefs prohibit him from having a bank account because he believes banks engage in Biblically prohibited usury. Yeager was terminated from the internship program at FirstEnergy Generation Corp. after he refused to agree to have his pay directly deposited into a bank account.  The complaint (full text) in Yeager v. FirstEnergy Generation Corp., (ND OH, filed 3/3/2015) contends that the company could have reasonably accommodated plaintiff's religious beliefs without undue hardship. In January the Ohio Civil Rights Commission ruled in Yeager's favor on the direct deposit claim, but the company is appealing the ruling.

Military Judge Lifts Order Accommodating Religious Concern of GITMO Detainee

The Miami Herald reported yesterday that a military judge, Navy Capt. J.K. Waits, has lifted his prior restraining order that had barred women guards from being used at Guantanamo Bay to transfer former al Quaida commander Abd al Hadi al Iraqi to and from meetings with his lawyers. Hadi had objected on religious grounds to the physical contact with female guards that necessarily occurs during the transfers. However, female guards then filed complaints with the Defense Department's Office of Diversity Management and Equal Opportunity claiming that the orders amount to gender discrimination. (See prior posting.) While the Feb. 24 decision lifting the restraining order is still under seal for security review, lawyers who have seen it say it is not based on the Religious Freedom Restoration Act, but instead on a strict line of case law.  When released, the opinion will be available at the Office of Military Commissions website.

In response to the decision lifting the restraining order, al Hadi's lawyer issued a statement saying:

We respect the decision by the Commission, but believe that Judge Waits and JTF GTMO misunderstand how important Hadi al-Iraqi's religion is to him. Again, we are asking for a very simple accommodation so a devout Muslim, pending trial, can continue to practice his religion without restriction and being subjected to a violent force cell extraction before attending mandatory medical appointments, legal meetings, court sessions and all other essential visits.

Transcript Available For SCOTUS Arguments In Abercrombie & Fitch

The full transcript of this morning's Supreme Court arguments in EEOC v. Abercrombie & Fitch Stores is now available from the Court's website. AP reports on the oral arguments in the Title VII religious accommodation case, saying that the Justices seemed to support prospective employee Samantha Elauf's position. At issue is the kind of notice that is needed to be given to an employer before its obligation to try to accommodate religious exercise is triggered.

No Title VII Liability For Refusing To Hire Applicant Who Will Not Furnish Social Security Number

In Yeager v. FirstEnergy Generation Corp., (6th Cir., Jan. 28, 2015), the U.S. 6th Circuit Court of Appeals held that an employer is not liable under Title VII or Ohio's anti-discrimination law when the employer refuses to hire an applicant because the applicant has not furnished a social security number.  The Internal Revenue Code requires employers to collect and provide employees' social security numbers.  Plaintiff Donald Yeager disavowed his social security number for religious reasons-- he believes it is the "mark of the beast" referred to in the Book of Revelation. The court said:

Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute.

Cleveland.com has details of the case beyond those set out by the 6th Circuit in its per curiam opinion.

GITMO Inmate Invoking RFRA Wants Only Male Guards During Transfers

Miami Herald reports that at a pre-trial hearing at Guantanamo Bay yesterday, the defense lawyer for former al Quaida commander Abd al Hadi al Iraqi asked for an expansion of the existing order barring female guards being used to transfer al Hadi to and from court and meetings with his lawyers.  Al Hadi who says that his religion bars touching of males by females who are not close family members wants the order extended to cover his transfers to medical, Red Cross and recreation yard visits.  His lawyers cite the Supreme Court's Hobby Lobby decision to back their request for a religious accommodation.  According to facts that came out in yesterday's hearing, until last October only men were assigned to the elite guard  unit at Guantanamo's Camp 7 that houses 15 prisoners who have been held by the CIA for years.  But then a female lieutenant colonel took charge of Camp 7 and recruited women to do escort duty as well.  Officials say that military morale has suffered since the military judge's order barring women soldiers from touching male prisoners being transferred to meetings with their lawyers. (See prior related posting.)

Company Settles EEOC Suit; Rejected Rastafarian Applicant Gets $50K In Damages

The EEOC announced Tuesday that Mims Distributing Co., a Colorado-based beer distributor, has agreed to settle an EEOC suit filed against it on behalf of a Rastafarian applicant for employment.  Mims refused to hire Christopher Alston as a delivery driver unless he would cut his hair.  Under a consent decree, Mims will pay $50,000 in damages, adopt a formal religious accommodation policy and conduct annual anti-discrimination training.

Employee Who Objected To Biometric Scanning As Mark of the Beast Wins $150,000 Verdict

The Clarksburg Exponent Telegram reports that a jury in a West Virginia federal district court last Thursday awarded $150,000 in compensatory damages to a former employee of Consol Energy (the mining operation of Consolidation Coal Co.) in a Title VII suit charging failure to accommodate his Evangelical Christian religious beliefs. Beverly R. Butcher Jr., a laborer at the mine, objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. The company however relied on a letter from the manufacturer of the hand scanner assuring that it does not assign the Mark of the Beast, and suggesting that objecting employees scan their left, instead of their right, hand.  The company refused other accommodations suggested by Butcher, and the EEOC sued on his behalf. (See prior posting.) In addition to the jury's damage award, the judge will still determine back and forward pay. Defendants plan an appeal.

UPDATE: The 4th Circuit affirmed the district court's award of damages in U.S. Equal employment Opportunity Commission v. Consol Energy, Inc., (4th Cir., June 12, 2017).

Collateral Estoppel Bars Title VII Religious Accommodation, But Not Retaliation, Claim

In Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Oct. 7, 2014), plaintiff Paul Mathis, an atheist, was fired from his position as a sheet metal installer when he insisted on covering with tape his employer company's mission statement printed on the back of his identification badge. The statement read in part: "This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the lord...." Mathis claimed that the mission statement was an attempt by the company to force its religious ideology on its employees.

In this Title VII action, a Pennsylvania federal district court held that Mathis was barred by collateral estoppel from proceeding with his Title VII claim of failure to accommodate his religious beliefs. In a prior state court worker's compensaton proceeding, the court held that Mathis had not shown any actual conflict between a sincere religious belief and the employer's requirement, nor had he requested an accommodation. Thefederal district court went on to hold, however, that Mathis was not barred by collateral estoppel from moving ahead with his claim under Title VII for unlawful retaliation against him for opposing what he saw to be religious discrimination.

Court Allows NYC Muslim Bus Driver To Move Ahead With Challenge To Headwear Policy

In Muhammad v. New York City Transit Authority, (ED NY, Sept. 30, 2014), a New York federal district court denied the Transit Authority's motion for summary judgment in a suit filed against it by a female Muslim bus driver who was reassigned to a less desirable position after she refused to remove her khimar or cover it with a Transit Authority uniform cap. Originally filed in 2004, the lawsuit alleges violations of Title VII and the First Amendment. The court concluded that a reasonable jury could find that the Transit Authority failed to offer plaintiff a reasonable accommodation of her religious beliefs. It also concluded that plaintiff had presented a prima facie case of disparate impact under Title VII and religious discrimination in violation of the First Amendment. Two years ago, the Transit Authority settled a parallel suit brought against it by the U.S. Department of Justice. (See prior posting.)

Supreme Court Grants Review In Abercrombie & Fitch Religious Accommodation Case

The U.S. Supreme Court today granted certiorari in EEOC v. Abercrombie & Fitch Stores, Inc., (Docket No. 14-86). (Order List). In the case, the 10th Circuit held that there is a strict notice requirement before an employer is required to accommodate religious beliefs. Merely wearing  hijab to an employment interview did not give notice that a job applicant wore it for religious purposes or needed religious accommodation because of its conflict with Abercrombie's clothing policy. (See prior posting.) The cert. petition and related briefs are available here from SCOTUSblog. News 9 reports on the Supreme Court's grant of review.