Mennonite in Supreme Court Case?

[temporal1]

Ken:
.. Some narrow rule that only lets a certain small group ..

my perception is .. the majority of noise and resulting law in the U.S. revolves tightly around small minorities. “majority rule” isn’t on the radar. unless the NYT says it is.

subjective to the point of comical.

moving goal posts is a 24/7 neurotic commitment.

ken_s:
It is interesting to note that under the current standard, the burden that religious accommodation might impose on other employees is completely disregarded.

[ohio jones]

Down in Texas the legislature wants to put the 10 Commandments in all public school classrooms. Well, do they mean anything or don’t they? Pretty easy for most people in the US to make a vague claim to being Christian. Some narrow rule that only lets a certain small group of conservative Christians claim exclusive right to the 10 Commandments isn’t going to fly.

Thou shalt not steal. Unless of course that would create an unreasonable burden on your fellow employees, then you should be required to.
Thou shalt not kill ...

[Josh]

Would you characterize the current national trans/bathroom matter as "opening a big can of worms" too?

It has turned into a can of worms, but is not really as big of a deal or burden since it isn't actually putting anyone out or costing businesses time and money. Just let people go to the bathroom. Sheesh.

This is not about "just let people go to the bathroom". This is about whether or not a business or other place such as a church or school can have women's bathrooms where women and girls feel safe, including things like locker rooms and changing rooms, or if they'll be forced to change in front of men who choose to expose themselves.

That's a pretty significant burden.

I'm not super familiar with the ADA

Perhaps you shouldn't be elaborating at length about it, then?

but I would put my focus more on public infrastructure like ADA accessible sidewalks. Our cities are currently a mess when it comes to disability access and honestly they need to sweep every sidewalk sleeper off the sidewalk since they block public wheelchair access.

I put my focus on whatever I need to do to comply with the ADA so I don't get sued.

As far as people sleeping on sidewalks blocking wheelchair access, that is the only thing that will get SF or Portland to remove tent encampments - if less than 4' of clearance is available. Won't clear it out for any other reason nowadays. A disabled person can sue the city over sidewalks being inaccessible.

Retrofitting old buildings can be super expensive. I'd focus more on new construction through building codes.

The ADA doesn't require retrofitting old buildings. It does require new construction to comply, or significant renovations.

How far do you want to go with your religion rooms in your own workplace. How about a voodoo room and a satanist room and a Hindu shrine and a Buddhist shrine? And maybe a Catholic chapel and a Lutheran chapel and a Pentecostal chapel and a Christian Science reading room and something for the atheists too. Does everyone get their own room?

What? There aren't religions that require special rooms in workplaces. What are you even talking about?

I used to work with a Muslim who once needed to borrow my hotel room for a place to pray as the appointed time came upon us quickly. He used the bathroom and a piece of toilet paper for the ceremonial cloth / covering over the floor. Religious people are not unreasonable and demanding things like special rooms all over the place.

I think you underestimate the inventiveness of the American worker to extract ever bit of time off that they are legally entitled to. Once word gets out that you can free up your Sundays by claiming a religious exemption there will be a flood of takers. Maybe not in things like retail where people have sporadic and limited hours. But for any business in which workers already work full time and get required to come in on weekends against their will? Which does happen in a lot of industries and especially health care. There will be a lot of takers.

In order to free up Sundays, one must be a genuine adherent of a religion that forbids working on Sundays, including the employee having their own history of not working on Sundays. This isn't something you can fake. HR departments are good at figuring out how to accommodate religious employees and disabled employees. And the states are good at helping enforce it.

I have worked with employers before to avoid working on Sunday such that I miss church regularly. I did not assert a legal right, but did make it clear eventually it means I would quit. So far every employer has helped accommodate me.

[Josh]

Some of Ken's arguments[*] back in the 1960s against religious accommodations when he was superintendent of a school:

Jonas Yoder raised serious objections to his two daughters participating in gym class at the public school due to immodest uniforms they were required to wear. He threatened to withdraw them from school. The “gym uniform issue,” as it became known, mushroomed into, first a community, then state, concern that the Wisconsin legislature took up. In 1967, legislation was introduced which proposed to exempt children from gym classes if it could be demonstrated that their “participation conflicts with their religious practices.” This Wisconsin bill was immediately met with strong opposition by, among others, Kenneth Glewen, the Superintendent of the New Glarus Public School District. Superintendent Glewen vehemently objected to any bending of the school regulations to accommodate the Amish. His concern was that such legislation would set a precedent whereby other community members might disagree with school rules and regulations. Such actions, Superintendent Glewen believed, would interfere with not only the smooth operation of the public schools but in fact make the administration of those schools much more difficult. Superintendent Glewen also reasoned that the students would attempt to exploit such exemptions, making it virtually impossible to check the veracity of each and every claim.

These objections sound familiar.

[*] Kenneth Glewen, to be specific.

[Ken]

Some of Ken's arguments[*] back in the 1960s against religious accommodations when he was superintendent of a school:

Jonas Yoder raised serious objections to his two daughters participating in gym class at the public school due to immodest uniforms they were required to wear. He threatened to withdraw them from school. The “gym uniform issue,” as it became known, mushroomed into, first a community, then state, concern that the Wisconsin legislature took up. In 1967, legislation was introduced which proposed to exempt children from gym classes if it could be demonstrated that their “participation conflicts with their religious practices.” This Wisconsin bill was immediately met with strong opposition by, among others, Kenneth Glewen, the Superintendent of the New Glarus Public School District. Superintendent Glewen vehemently objected to any bending of the school regulations to accommodate the Amish. His concern was that such legislation would set a precedent whereby other community members might disagree with school rules and regulations. Such actions, Superintendent Glewen believed, would interfere with not only the smooth operation of the public schools but in fact make the administration of those schools much more difficult. Superintendent Glewen also reasoned that the students would attempt to exploit such exemptions, making it virtually impossible to check the veracity of each and every claim.

These objections sound familiar.

[*] Kenneth Glewen, to be specific.

He was wrong. Not everyone who makes an argument is right. These days kids at many schools wear pretty much whatever they want for PE. No big deal. In fact, in most public high schools there isn't really required generic PE anymore. You take specific classes. Powerlifting, aerobics, Zumba, walking, Pilates, Yoga, etc. And a lot of schools just let you do independent PE where you do fitness at home or in some health cub or after school club sport and just keep a log signed by an adult that you did the required weekly hours of fitness activities. At the school where I teach an Amish student who objected to PE could just do independent PE at home, log her hours and get a parent to sign the log, and be done with it.

And being forced to work extra weekend hours or longer weekend shifts that you don't want to work in order to accommodate co-workers religious objections is fundamentally different from wearing your own t-shirt instead of one with a school logo on it during PE class. This case is about how one person's demand for religious accommodation made the working conditions so bad for all of his co-workers that they all left and no one wanted to work with him.

[Josh]

His concern was that such legislation would set a precedent whereby other community members might disagree with school rules and regulations. Such actions, Superintendent Glewen believed, would interfere with not only the smooth operation of the public schools but in fact make the administration of those schools much more difficult. Superintendent Glewen also reasoned that the students would attempt to exploit such exemptions, making it virtually impossible to check the veracity of each and every claim.

This is basically the exact claim you've been making in this thread - that it's too hard to provide religious accommodations because what if some claimants are invalid? What if it's too hard for the administration? (Incidentally, Jackson-Brown, J. made the same arguments this week, at one point saying "it's just too complicated").

At the school where I teach an Amish student who objected to PE could just do independent PE at home, log her hours and get a parent to sign the log, and be done with it.

That is what this parent tried to do and why they ended up stuck having to go all the way to the Supreme Court.

And being forced to work extra weekend hours or longer weekend shifts that you don't want to work in order to accommodate co-workers religious objections

No employee has to do that. The burden is on the employer to provide religious accommodations.

Here's another version of what you're saying:

And being forced to walk farther in the parking lot than you want to in order to accommodate disabled' employees parking spaces

See how that sounds?

[Ken]

His concern was that such legislation would set a precedent whereby other community members might disagree with school rules and regulations. Such actions, Superintendent Glewen believed, would interfere with not only the smooth operation of the public schools but in fact make the administration of those schools much more difficult. Superintendent Glewen also reasoned that the students would attempt to exploit such exemptions, making it virtually impossible to check the veracity of each and every claim.

This is basically the exact claim you've been making in this thread - that it's too hard to provide religious accommodations because what if some claimants are invalid? What if it's too hard for the administration? (Incidentally, Jackson-Brown, J. made the same arguments this week, at one point saying "it's just too complicated").

At the school where I teach an Amish student who objected to PE could just do independent PE at home, log her hours and get a parent to sign the log, and be done with it.

That is what this parent tried to do and why they ended up stuck having to go all the way to the Supreme Court.

And being forced to work extra weekend hours or longer weekend shifts that you don't want to work in order to accommodate co-workers religious objections

No employee has to do that. The burden is on the employer to provide religious accommodations.

Here's another version of what you're saying:

And being forced to walk farther in the parking lot than you want to in order to accommodate disabled' employees parking spaces

See how that sounds?

I have been 100% consistent in my comments here.

The law currently requires employers to allow religious accommodations as long as they have a minimal impact or burden on the employer. The actual legal term is "de minimus" Most of current religious accommodations do not involve the allocation of scare privileges. They involve things like being able to wear head coverings on the job. Which affects no one else by the employee in question and are, in fact, a "de minimus" burden.

Some requests for religious accommodation are, in fact, burdensome on the employer and other employees. That is the case in this particular example with Groff and it was the case when the Supreme Court previously ruled on this issue in 1977. They were so burdensome on other employees that everyone else wanted to quit when he refused to hold up his end.

There is a line and standard for determining if a requested accommodation is a burden or not. It is spelled out in the law itself and in subsequent Supreme Court cases and in EEOC regulations. The only question in front of the court with the Groff case is whether the line is drawn correctly or if the court is going to decide to move it. And if they do decide to move it, how far they are going to move it and what new standard are they going to use.

No matter how the court rules, there will still be a dividing line between what are reasonable religious accommodations and what are unreasonable. It is only a question about whether they are going to move that line or keep it in the same place. My own opinion is that religious accommodations become unreasonable when they start negatively affecting the work lives of other employees. Expecting others to unwillingly shoulder your burden is selfish and arrogant. Emphasis on the "unwilling" part. And if you are in a job where your demands negatively affect the work lives of your co-workers than you are probably in the wrong job. But I'm not on the Supreme Court so who knows.

The ADA is irrelevant to discussions about religious accommodation because that is a different law and has different standards.

[Josh]

The law currently requires employers to allow religious accommodations as long as they have a minimal impact or burden on the employer. The actual legal term is "de minimus" Most of current religious accommodations do not involve the allocation of scare privileges. They involve things like being able to wear head coverings on the job. Which affects no one else by the employee in question and are, in fact, a "de minimus" burden.

The current Supreme Court precedent is "de minimis" based on the 1977 case, which held that standard is so low that the employer can't be inconvenienced in any way whatsoever. That is why this is going up before the Supreme Court again.

You are incorrect that the law currently requires that, though. The 1977 case was based on an EEOC administrative ruling. Several of the Justices this week questioned in oral arguments if that precedent really applies here, since the applicable statutes are different ones.

Some requests for religious accommodation are, in fact, burdensome on the employer and other employees. That is the case in this particular example with Groff and it was the case when the Supreme Court previously ruled on this issue in 1977. They were so burdensome on other employees that everyone else wanted to quit when he refused to hold up his end.

Groff specifically took a job where he wouldn't have to work Sundays, which changed in 2013 when the USPS accepted a contract with Amazon (that ended up losing the USPS money, but that's a different story). He then transferred to a rural post office that didn't do Sunday deliveries to continue to try to avoid this problem. I would say Groff did everything he could.

There is a line and standard for determining if a requested accommodation is a burden or not. It is spelled out in the law itself and in subsequent Supreme Court cases and in EEOC regulations. The only question in front of the court with the Groff case is whether the line is drawn correctly or if the court is going to decide to move it. And if they do decide to move it, how far they are going to move it and what new standard are they going to use.

This isn't an EEOC lawsuit. Did you actually listen to the oral arguments this week?

No matter how the court rules, there will still be a dividing line between what are reasonable religious accommodations and what are unreasonable. It is only a question about whether they are going to move that line or keep it in the same place.

Of course it is. That's why it's before the Supreme Court. The Supreme Court hears things when they decide it is not clear what settled law actually is.

My own opinion is that religious accommodations become unreasonable when they start negatively affecting the work lives of other employees.

We are very aware here on MN that you think religious accommodations should be subject to a de minimis standard. A number of us simply don't agree with you, and we believe the employer should be the one making accommodations, not other employees.

Expecting others to unwillingly shoulder your burden is selfish and arrogant. Emphasis on the "unwilling" part. And if you are in a job where your demands negatively affect the work lives of your co-workers than you are probably in the wrong job. But I'm not on the Supreme Court so who knows.

Why is it OK then, Ken, to expect others to unwillingly shoulder the burden of disabled employees? I've had to work in workplaces with disabled employees, pregnant women, women who just had babies, and so on, and yes, the rest of us get to pick up the slack when they go on maternity leave. Why is that OK, but religious accommodations aren't?

I will quote Groff:

Sunday’s a day where we get together and almost taste heaven. We come together as believers. We celebrate who we are, together. We worship God. And so to be asked to deliver Amazon parcels and give all that up, it’s just really kind of sad.

And from CNN[*]:

The post office contemplated some accommodations to Groff such as offering to adjust his schedule so he could come to work after religious services, or telling him he should see if other workers could pick up his shifts. At some point, the postmaster himself did the deliveries because it was difficult to find employees willing to work on Sunday. Finally, the USPS suggested Groff choose a different day to observe the Sabbath.

I hope you can appreciate how absurd it is for an employer to command an employee to choose a different day to observe the Sabbath.

[*] My apologies for using a poor news source.

[Ken]

And from CNN[*]:

The post office contemplated some accommodations to Groff such as offering to adjust his schedule so he could come to work after religious services, or telling him he should see if other workers could pick up his shifts. At some point, the postmaster himself did the deliveries because it was difficult to find employees willing to work on Sunday. Finally, the USPS suggested Groff choose a different day to observe the Sabbath.

I hope you can appreciate how absurd it is for an employer to command an employee to choose a different day to observe the Sabbath.

[*] My apologies for using a poor news source.

From the news reporting, his actual job was to work as a substitute carrier on weekends and holidays when the regular mail carriers had off. In other words, he was not working Monday through Friday but was in a job for which the actual duties were to work Saturday and Sunday. So he already had 5 days of rest each week.

Which yes, was different than the duties that existed when he was hired prior to 2013. But that happens, job descriptions and duties change. He did not have an employment contract that guaranteed him fixed hours in perpetuity.

So by taking Sundays off he was actually taking off 50% of his job and creating undue burdens on his co-workers as the quote you provided states. At that point it was clear he was in the wrong job. If you are in a job that exclusively works weekends and holidays and 50% of the hours are on Sundays then I would suggest you are in the wrong job if you have a religious objection to working on Sunday. There are literally hundreds of thousands of jobs for which that isn't the case.

[ken_sylvania]

And from CNN[*]:

The post office contemplated some accommodations to Groff such as offering to adjust his schedule so he could come to work after religious services, or telling him he should see if other workers could pick up his shifts. At some point, the postmaster himself did the deliveries because it was difficult to find employees willing to work on Sunday. Finally, the USPS suggested Groff choose a different day to observe the Sabbath.

I hope you can appreciate how absurd it is for an employer to command an employee to choose a different day to observe the Sabbath.

[*] My apologies for using a poor news source.

From the news reporting, his actual job was to work as a substitute carrier on weekends and holidays when the regular mail carriers had off. In other words, he was not working Monday through Friday but was in a job for which the actual duties were to work Saturday and Sunday. So he already had 5 days of rest each week.

Which yes, was different than the duties that existed when he was hired prior to 2013. But that happens, job descriptions and duties change. He did not have an employment contract that guaranteed him fixed hours in perpetuity.

So by taking Sundays off he was actually taking off 50% of his job and creating undue burdens on his co-workers as the quote you provided states. At that point it was clear he was in the wrong job. If you are in a job that exclusively works weekends and holidays and 50% of the hours are on Sundays then I would suggest you are in the wrong job if you have a religious objection to working on Sunday. There are literally hundreds of thousands of jobs for which that isn't the case.

As an employer, and (I hope) a decent human being, I wouldn't take the schedule for one of my Sabbath-keeping employees who was hired as a part-time fill-in for Monday through Friday, and modify it so that he now needs to work Friday and Saturday. That would be rude and cruel. I don't treat employees that way. There's also a variety of other things that might be legal to do to employees but I don't do them because it wouldn't be right.