Gorsuch and Alito Want to Revisit Religious Accomodations

Is a de minimus standard too small?

YahooNews called my attention to the Supreme Court’s refusal to hear to related cases Monday. While neither of my go-to lawblogs, SCOTUSBlog or Volokh Conspiracy, have commented on the matter the decision—and in particularly the dissent—are interesting.

Reuters (“U.S. Supreme Court rebuffs claims of workplace religious bias“):

The U.S. Supreme Court on Monday sidestepped a chance to further expand religious rights, turning away two cases in which employees accused companies of violating federal anti-discrimination law by insufficiently accommodating requests for time off to meet religious obligations.

The justices declined to hear appeals by two men of different Christian denominations – a Jehovah’s Witness from Tennessee and a Seventh-day Adventist from Florida – of lower court rulings that rejected their claims of illegal religious bias. Lower courts found that the accommodations the men sought would have placed too much hardship on the employers.

[…]

The Tennessee case involved Jason Small, a leader in the Jehovah’s Witnesses congregation in the Memphis suburb of Collierville who worked as a dispatcher at Memphis Light, Gas and Water, a large public utility. Small missed work in 2015 to attend worship on the Good Friday holiday as well for a congregational duty the following Wednesday even though his requests for time off had been denied.

Small was suspended for two days without pay. The company said Small missed work on “multiple occasions.”

The Florida case involved Mitche Dalberiste, a Seventh-day Adventist. GLE Associates, a Florida company that performs work-site safety monitoring, revoked his job offer after he disclosed that he would be unable to work on the Sabbath, which he observed from sundown on Friday to sundown Saturday.

GLE, in a court filing, said Dalberiste lied about his ability to work on weekends and said it regretted being dragged into a “special-interest fueled lawsuit attempting to circumvent Congress.” Dalberiste is represented in part by the Becket Fund for Religious Liberty, a religious rights legal group.

Both men sued in federal court, alleging religious discrimination in violation of Title VII.

In Small’s case, the Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals ruled that accommodating him would cause more than “de minimis” hardship on the company’s operations and other employees. The Atlanta, Georgia-based 11th U.S. Circuit Court of Appeals issued a similar ruling against Dalberiste.

The Supreme Court refuses to hear just about every case that comes to it. As was the case here, they tend not to explain why. But, typically, it’s because they deem the questions uninteresting, the facts of the case not suitable for deriving wider precedents, a like of ripeness, or some other reason having little to do with the particular plight of the petitioners.

What’s interesting, here, though, is what the dissent signals.

Gorsuch wrote that religious rights under the employment law are “the odd man out” because they do not receive as much protection as other rights guaranteed under federal law, such as those that apply to the disabled.

“Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim,” Gorsuch wrote.

Under the law, employers must reasonably accommodate workers’ religious observance or practices unless that would cause the company “undue hardship” – which the Supreme Court in a 1977 case determined to be anything more than a minor, or “de minimis,” burden. Critics of the “de minimis” standard have argued that it particularly harms religious minorities.

Last year, in a similar appeal that the court declined to hear that involved a member of the Seventh-day Adventist Church, three conservative justices – Alito, Gorsuch and Justice Clarence Thomas – indicated that the court should consider overruling the 1977 precedent.

A companion USA Today story (“Gorsuch, Alito balk as Supreme Court declines to hear case about workplace religious accommodations“) draws this out:

Federal law requires companies to make accommodations for their workers’ religious beliefs as long as it doesn’t present an “undue hardship.” In 1977, the Supreme Court defined “undue hardship” as anything having more than a “de minimis,” or trivial cost. That means employers can avoid making accommodations in many situations.

Gorsuch, in a dissent joined by Alito, asserted that those circumstances allow “subpar employees” to receive more favorable treatment than highly performing workers if the latter group seeks only to attend church.

“There is no barrier to our review and no one else to blame,” Gorsuch wrote. “The only mistake here is of the court’s own making – and it is past time for the court to correct it.”

It sure seems like Gorsuch is arguing that, if Federal law provides protections for any given group, say, those with disabilities, those same standards ought apply to religious discrimination. Looking at the dissent itself, we see his summary of the facts in the Small case:

For over a decade, Jason Small worked as an electrician at Memphis Light, Gas & Water. Then an on-the-job injury forced him into a new role as a dispatcher. This job came with a different schedule and mandatory overtime duties. Sometimes the new hours conflicted with Mr. Small’s religious obligations, like worship services on Sunday mornings. So Mr. Small asked his employer to place him on reduced pay temporarily while he sought reassignment to a different position with a more conducive schedule. The company had a history of offering this same accommodation to other employees, including those removed from their positions for unsatisfactory job performance. But when it came to Mr. Small, the company balked.

 That left Mr. Small to make the dispatcher role work as best he could. For a period, things went smoothly enough. Mr. Small even used his vacation days when necessary to attend church. Eventually, though, a problem arose. Mr. Small asked to use some of his vacation time on Good Friday. At first, the company agreed. Then it backtracked, canceling his vacation request. When Mr. Small went to church anyway, the company suspended him for two days without pay.

So, based on that accounting, I’m incredibly sympathetic to Small’s plight and tend to think labor law ought to protect him. If it doesn’t, though, it seems the culprit is the law, not MLG&W.

In response, Mr. Small filed suit seeking a ruling that the company’s conduct violated Title VII. That federal statute prohibits discrimination on the basis of race, color, religion,  sex, and national origin, and requires employers to afford requested religious accommodations unless doing so would impose an “undue hardship” on them. 78 Stat. 253, 255, 42 U. S. C. §§2000e(j)2000e-2(a). At no point in the litigation did anyone suggest that Mr. Small’s requested accommodation—reduced pay while he sought reassignment—would have imposed a significant hardship on his employer. Yet both the district court and Sixth Circuit rejected Mr. Small’s claim all the same.

 The courts explained that Trans World Airlines, Inc. v. Hardison432 U. S. 63 (1977), tied their hands. There, this Court dramatically revised—really, undid—Title VII’s undue hardship test. Hardison held that an employer does not need to provide a religious accommodation that involves “more than a de minimis cost.” Id., at 84. So Mr. Small’s requested accommodation might not have imposed a significant hardship on his employer. The company may extend poorly performing employees the very same relief Mr. Small sought. But the company had no obligation to provide Mr. Small his requested accommodation because doing so would have cost the company something (anything) more than a trivial amount. See Small v. Memphis Light, Gas & Water952 F. 3d 821, 825 (CA6 2020) (per curiam).

I don’t have a strong opinion on what the statute requires. But 1977 was a lot closer to 1964, when Title VII was enacted into law, that 2021 is to 1977, much less 1964. I’m unconvinced that the current court are better readers than those of the Burger Court. But, it turns out, maybe that court was just making things up:

Now, Mr. Small asks us to hear his case and I would grant his petition for review. Hardison‘s de minimis cost test does not appear in the statute. The Court announced that standard in a single sentence with little explanation or supporting analysis. Neither party before the Court had even argued for the rule. Patterson v. Walgreen Co., 589 U. S. ___, ___ (2020) (Alito, J., concurring in denial of certiorari). Justice Marshall highlighted all these problems at the time, noting in dissent that the de minimis cost test cannot be reconciled with the “plain words” of Title VII, defies “simple English usage,” and “effectively nullif[ies]” the statute’s promise. Hardison,432 U. S.,at 88, 89, 93, n. 6 (Marshall, J., dissenting).

 That Gorsuch is using Thurgood Marshall’s dissent t buttress his dissent amuses me somehow. But go on:

Nor has time been kind to Hardison. In the intervening years, Congress has adopted additional civil rights laws using the “undue hardship” standard. And when applying each of those laws, courts are far more demanding. The Americans with Disabilities Act of 1990 (ADA) requires a covered employer to accommodate an employee’s “known physical or mental limitations” unless doing so would impose an “undue hardship.” 104 Stat. 33242 U. S. C. §12112(b)(5)(A). The Uniformed Services Employment and Reemployment Rights Act (USERRA) obliges an employer to restore a returning United States service member to his prior role unless doing so would cause an “undue hardship.” 38 U. S. C. §§4303(10)4313(a)(1)(B), (a)(2)(B). And the Affordable Care Act (ACA) provides that a covered employer must provide a nursing mother with work breaks unless doing so would impose an “undue hardship.” 124 Stat. 57729 U. S. C. §207(r)(3). Under all three statutes, an employer must provide an accommodation unless doing so would impose “significant difficulty or expense” in light of the employer’s financial resources, the number of individuals it employs, and the nature of its operations and facilities. See ADA, 42 U. S. C. §12111(10)(A) (added 1990); USERRA, 38 U. S. C. §4303(15) (added 1994); ACA, 29 U. S. C. §207(r)(3) (added 2010); cf. 11 U. S. C. §523(a)(8)28 U. S. C. §1869(j).

With these developments, Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church. And the anomalies do not end there. Under the ADA, an employer may be required to alter the snack break schedule for a diabetic employee because doing so would not pose an undue hardship. Spiteri v. AT & T Holdings, Inc., 40 F. Supp. 3d 869, 878 (E. D. Mich. 2014).  Yet, thanks to Hardison, at least one court has held that it would be an undue hardship to require an employer to shift a meal break for Muslim employees during Ramadan. EEOC v. JBS USA, LLC, 339 F. Supp. 3d 1135, 1181 (D. Colo. 2018). With Hardison, uneven results like these have become increasingly commonplace. See Brief for Muslim Advocates et al. as Amici Curiae 21-22 (collecting examples).

This isn’t Gorsuch arguing that the Court ought to import any protections crafted by Congress to other groups. Rather, it’s saying the Court read a very different standard into the law for religious groups than is being applied to every other group. That’s a pretty strong argument. And, I would add, a public utility might well deserve to be held to higher scrutiny in this regard, since they’re guaranteed to make a certain profit.

Not even Mr. Small’s employer tries to defend this state of affairs. The company candidly acknowledges that Hardison “very likely is not the best possible gloss” on Title VII’s language. Brief in Opposition 23. Two of the three judges on the panel below agreed, writing separately to explain their view that Hardison “rewr[o]te [the] statute.” Small952 F. 3d, at 826-829 (Thapar, J., joined by Kethledge, J., concurring). Yet, today, this Court refuses even to entertain the question. It’s a struggle to see why.

 Maybe the most charitable explanation for the Court’s inaction has to do with issue preservation. But if that’s the worry, there is no reason for it. Both the district court and the court of appeals expressly passed on the question whether Mr. Small’s employer violated Title VII by denying his requested accommodation. That is all our precedent demands. United States v. Williams504 U. S. 36, 41-43 (1992). The district court ruled that “placing Mr. Small back in the reassignment pool on reduced pay to wait for a job with hours more in line with [his] religious obligations would . . . place more than a de minimis burden on” the company. App. to Pet. for Cert. 35a. For that reason, the court said, the company “sufficiently satisfied its obligation to demonstrate . . . [an] undue hardship.” Ibid. While two members of the Sixth Circuit panel assigned to Mr. Small’s case doubted Hardison, none doubted what it required. Because his requested accommodation involved “more than [a] de minimis” cost, the court held, the company didn’t have to provide it. Small952 F. 3d, at 825 (per curiam) (citing  circuit precedent following Hardison).

I cannot see what more we could reasonably require. Mr. Small insisted that his requested accommodation would not cause an undue hardship under Title VII. Both the district court and court of appeals rejected the argument relying expressly on Hardison. There is no barrier to our review and no one else to blame. The only mistake here is of the Court’s own making—and it is past time for the Court to correct it.

Again, it only takes four justices to grant cert, so at least six members of a court that leans six-three conservative declined to do so. Presumably, they had their reasons. But, given their silence on the matter, Gorsuch’s argument strikes me as rather strong.

FILED UNDER: First Amendment, Law and the Courts, Religion, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. gVOR08 says:

    I can’t help but wonder if Gorsuch and Alito would have felt so sympathetic had the plaintiffs been Muslim, Hindu, or Buddhist. Or Atheists, but we don’t get worship days and holidays.

    I’ll stipulate that the Beckett Fund has apparently taken non-Christian clients and also that they are part of a large conservative “public service” legal industry out actively recruiting cases.

    8
  2. Jen says:

    I hope the Court, should it go down this path, thinks carefully about the potential ramifications.

    The cases seem different to me, in one the employee (Small) tried to broker a solution that would work for a temporary time period (until he was able to be reassigned). In the other, the potential employee (Dalberiste) misrepresented his availability–you don’t say that you’re available to work weekends if you aren’t available from Friday night to Saturday night. If the job says that’s a requirement up front, you don’t apply for the job, this isn’t hard.

    I’m trying to decide if a ruling for either of these cases could be the disaster that I’m envisioning, with employers in a weird spot of not being able to ask about religion before hiring but then needing to accommodate a range of requests. Yes, the ADA requires reasonable accommodation for medical issues, but what is reasonable accommodation for religious issues, which, at least in these two cases, both involve routine availability and scheduling issues?

    3
  3. Jen says:

    @gVOR08: Well, Gorsuch did use this:

    Under the ADA, an employer may be required to alter the snack break schedule for a diabetic employee because doing so would not pose an undue hardship. Spiteri v. AT & T Holdings, Inc., 40 F. Supp. 3d 869, 878 (E. D. Mich. 2014). Yet, thanks to Hardison, at least one court has held that it would be an undue hardship to require an employer to shift a meal break for Muslim employees during Ramadan. EEOC v. JBS USA, LLC, 339 F. Supp. 3d 1135, 1181 (D. Colo. 2018).

    I’m assuming a snack break and a meal break are different in both lengths of time and schedule. On the other hand, a diabetic snack break change is ongoing, but Ramadan is temporary. A diabetic could have a serious health event if his/her blood sugar drops too low.

    Employers are so frequently concerned with accommodating any employee, worrying about “slippery slope” issues that they seem to cause more problems for themselves.

  4. Jay L Gischer says:

    I agree that Small seems a lot more sympathetic than Dalberiste.

    I note that this is another case where religious conservatism finds itself at odds with the general business-friendly stance of the Conservative, I mean Republican, Party. This is a new trend, and it appears to be growing.

    1
  5. Michael Reynolds says:

    More accommodation for people who insist on strict adherence to rules promulgated by people claiming to have correctly interpreted the desires of a super being who snapped his fingers and created the universe. The ant currently crawling across my keyboard may have equally accurate notions of what rules I’d promulgate. He’d probably want all ants everywhere to listen to his revelation and follow the. . . except a giant finger just squashed him.

    It’s 2021 and this is still a thing.

    9
  6. Stormy Dragon says:

    The real goal here is, now that employers are increasingly no longer oppressing non-evangelical employees and customers, to give individual employees a heckler’s veto to force employers to go along with the whims of whoever their most theocratic employee is.

    If someone owns a bakery and is perfectly happy to make gay wedding cakes, then their evangelical cashier can unilaterally refuse to let an LGBT customer buy one because being forced to ring it up would violate their “deeply held religious beliefs”.

    If someone owns a pharmacy and is perfectly happy to sell birth control, then their evangelical pharmacist can refuse to give them to anyone because doing so would violate their “deeply held religious beliefs”.

    8
  7. Teve says:

    @Michael Reynolds: it’ll be a thing in 3021, I’m afraid.

    2
  8. Just nutha ignint cracker says:

    @Jen: I’m inclined to agree with your analysis all around. I find it amusing that a company is claiming that paying someone less money constitutes a hardship. I can understand it being a hardship if he’s the only employee with the training to do the job or if reassigning him will cause other employees to work overtime to make up the hours he’s not working, but those issues don’t appear to be in play in my limited understanding of the issue.

    The other guy simply misrepresented what hours he was available for, voiding the conditions under which he was hired. The guy to see about that problem is not Gorsuch or Alito, but rather, the guy in the mirror.

    4
  9. Teve says:

    I have no problem accommodating religious beliefs if it doesn’t impact the fundamental duties of the job. If an employee whose job is to stock the Mexican food section overnight does so competently but needs Ramadan accommodations, I don’t care, we can work it out. If you’re a pharmacist and you refuse to do your job filling legitimate prescriptions because of your beliefs, I believe you need to find a new job. You’re not competently doing yours.

    17
  10. Mu Yixiao says:

    @Jen:

    I’m assuming a snack break and a meal break are different in both lengths of time and schedule. On the other hand, a diabetic snack break change is ongoing, but Ramadan is temporary. A diabetic could have a serious health event if his/her blood sugar drops too low.

    JBS USA is a meat-processing plant* which, presumably, has a production line (an “assembly line”–or “disassembly line” as the case may be). Letting two or three people take their break at a separate time could possibly shut down the entire line for 30 or 60 minutes–every day for a month. That’s significantly different than letting an office worker take a break at a different time than her colleagues.

    * The fact that devout Muslims are working at a meat-processing plant is…. odd–especially since JBS processes pork.

    2
  11. Jay L Gischer says:

    @Stormy Dragon: It is completely legitimate to say to an interviewee “We work on Saturdays” or “We sell to gay couples” or “We sell contraceptives” and ask “Can you see any reason why you could not do this?” And to refuse to hire them if they answer yes. You haven’t asked them about their religion. You have asked them about their job duties.

    I think that “Oh, I won’t sell contraceptives” is probably an “undue hardship” even under a strict reading. But then, we don’t know if that’s what Alito is thinking, do we?

    2
  12. de stijl says:

    @Michael Reynolds:

    Any decent manager would have made these issues moot. Reasonable accommodation and not ratting out your staff unless they are seriously line-stepping is de riguer training.

    They were making a point and sending a message instead. Fuck those guys.

    Reasonable people can come to reasonable accommodations.

    Once when I was quite junior manager a guy showed up drunk. I sent him home and told him he had the flu, but this was a one time abeyance and would not happen again. I sent an e-mail to myself documenting the true story and the false story I told my boss to cover my ass.

    Intermittent screw-ups – try to figure out what the issue is and accommodate. Habitual screw-ups – fire.

    I had no issue working Christian holidays which are the most observed by corps. If you are hourly, you can make good bank: 1.5x. Plus, nothing happens. There are no big bosses there.

    One of the most annoying incidents I ever had was going into work on Xmas Eve and big boss “let us go” at 9:30. Dude, I got up, showered, shaved, etc. for one hour of “work” and then you tell me I have the day off?!

    At 1 or 2 pm, cool, I can see that. At 9:30 am it is insulting. You should have sent me an e-mail saying don’t come in.

    Guy was an incompetent asshole, but I expected better.

    5
  13. MarkedMan says:

    I’m going to be the grump here and point out that if someone doesn’t do their job then everyone else has to pick up for them. If all the workers rotate schedules and sometimes have to work Friday nights and Saturdays (which I presume they would all much rather have off), if someone announces they have found their personal Jesus and suddenly they can’t work those days, everyone else has to give up more of their time.

    In the case of a meal break at say, a factory, my personal preference would be to accommodate the employee if at all possible, but make it clear this wasn’t policy. Most production lines have super specific times they go on break because, a) everyone had to go together because you can’t run a line with half the people, and b) preventive maintenance and resupplies are scheduled for those breaks.

    It’s one thing for positions (like mine and the people who work for me) where time can be flexible, and our work can be moved around quite a bit. But in the case of retail workers, restaurant workers, factory workers, etc, accommodation isn’t done by a theoretical employer but by forcing other workers to give up something.

    3
  14. DrDaveT says:

    @Jay L Gischer:

    I agree that Small seems a lot more sympathetic than Dalberiste.

    I’m surprised that no one is focusing on the fact that the Small cases hinges on a failure to accommodate “an on-the-job injury [that] forced him into a new role as a dispatcher”. Small didn’t get religion; he got hurt, and the company’s chosen way to accommodate that was one that conflicted with Small’s pre-existing church commitments. There are enough moving parts there that I think it does not illuminate the underlying religious accommodation question.

    As for Gorsuch… He’s way too smart to argue that nature and degrees of deference and accommodation should carry over from one category to another. Which means he’s arguing in bad faith. Wonderful.

    3
  15. de stijl says:

    @MarkedMan:

    You have a solid point. Many workplaces cannot accommodate that easily.

    I come from a background where bodies at desks 8 to 5 is the norm. Corporate schedule is a bias. And a blindspot to me, apparently.

  16. KM says:

    @MarkedMan:

    I’m going to be the grump here and point out that if someone doesn’t do their job then everyone else has to pick up for them.

    This. Your faith and its complications is not my problem to cope with. If I have to work every Sunday because my coworkers claim they’re religious and attending church, it’s an incredible and unfair burden on me as an employee that was not necessarily stated upon hiring. What happens if I want to take a vacation and need the day? Does the work simply not get done? Do I get refused my time off request because there must be coverage and it’s easier to tell me no then make the religious person do the work? How long till I start making up religious needs so I can get the day off too? Sometimes I think there should be some sort of proof of faith for these things. It seems incredibly easy to claim you need every Sunday off to go to church and then just sleep in. You need a doctor’s note to justify some absences so why don’t we require notes or attendance slips for taking the day for church?

    I’m sympathetic to religious needs but not to them inconveniencing people on a permanent basis. You *know* your faith and what it entails – you and only you can practice it in away you feel is satisfactory so you’re very aware of the steps involved. Outsourcing the difficulty of living your faith negates the point of doing for God; you don’t get the brownie points for “suffering” if you pass the pain on. It’s like having someone else fast for you because you don’t want to give up snacks but still want the spiritual props.

    5
  17. Barry says:

    @gVOR08: “I can’t help but wonder if Gorsuch and Alito would have felt so sympathetic had the plaintiffs been Muslim, Hindu, or Buddhist. Or Atheists, but we don’t get worship days and holidays. ”

    I’m wondering about the rest of the court. These guys were ‘fringe’ religious people.

  18. Jen says:

    @MarkedMan:

    I’m going to be the grump here and point out that if someone doesn’t do their job then everyone else has to pick up for them. If all the workers rotate schedules and sometimes have to work Friday nights and Saturdays (which I presume they would all much rather have off), if someone announces they have found their personal Jesus and suddenly they can’t work those days, everyone else has to give up more of their time.

    This is exactly what I was envisioning when I said I thought this could become a disaster. I’ve worked a number of jobs, including retail, politics, and PR, that required some weekend work. If in any of those cases a chunk of workers said that they aren’t available on Fridays, Saturdays or Sundays, it would become a huge issue for scheduling and those hours would disproportionately be shuttled off onto the employees who didn’t claim religion, who I’m sure would then eventually find God, just to get a weekend off.

    @KM:

    I’m sympathetic to religious needs but not to them inconveniencing people on a permanent basis.

    Agreed, 100%.

    2
  19. Michael Reynolds says:

    I could easily have taken off every Jewish holiday, but I never did because I realized it would be someone else who’d have to pick up the shift. I know: pretty damn selfless.

    Also, I don’t actually know when the Jewish holidays are, or what they mean.

    Also #2, I’d rather, you know. . . make the money.

    Go ahead. You’re thinking it.

    3
  20. inhumans99 says:

    @Michael Reynolds:

    I found this bit from Biloxi Blues on IMDB and thought you might appreciate it, especially the bit about the Jewish Holidays. I always loved this scene:

    Toomey : Something wrong with your food, Carney?

    Carney : Yes Sergeant! It’s the first food I was ever afraid of!

    Toomey : Well, you’re gonna enjoy it about a month from now because that’s how long it will take. Back to your seat.

    [sees Jerome’s tray]

    Toomey : Don’t approve of our cuisine, Jerome?

    Eugene Morris Jerome : It’s not that. It’s a religious observation. This is the day my people fast.

    Toomey : Jerome, this is July. Rosh Hashanah and Yom Kippur are in September. I have an all religion calendar in my barracks. Don’t you try that shit again with me, boy.

    Eugene Morris Jerome : It’s a different holiday. It’s called El Malaguena.

    Toomey : El Malaguena?

    Eugene Morris Jerome : It’s for Spanish Jews.

    Toomey : Carney! Come here!

    [Carney arrives with his tray]

    Toomey : . Carney, put half of your food onto Jerome’s tray!

    Carney : [smiling] Yes, Sergeant!

    Toomey : Eat in good health and Happy El Malaguena to you! Back to your seat.

    [sees Epstein’s tray]

    Toomey : What’s your excuse, Epstein? Don’t tell me. Today is La Cucaracha!

    What I really like is that even a hard-ass/burnt out Military guy like Christopher Walken’s character in the film would let a soldier take the day off if the soldier actually had the smarts to ask for the Holiday on the day it is celebrated.

    2
  21. de stijl says:

    @Michael Reynolds:

    You front like your hard-core, but you’re a big old softie. Kumbaya at your core.

    I approve. The world needs more pretend cranky people. Cranky people keep us on task, pretend or not.

    You’re like a Rollo. Sweet on the outside, sweeter inside 😉

    3
  22. de stijl says:

    @de stijl:

    If I am role-playing a game as a rogue, I always bend towards good. Bioware games specifically encourage exploring this spectrum, but even if I proclaim to myself I am going to do this as a bad guy, when given story options to be bad, I fold and go paragon.

    It hurts me to choose the bad guy option even in consequence-free media like games. I cannot.

    I reductively bolster that choice when I see how crappy people are to one another in multi-player on-line PvP games or PvP game modes. Not my scene. Abhor it. Makes me wonder about the fitness of humanity.

    1
  23. Raoul says:

    Here is the thing, there’s nothing preventing anyone from creating their own religion with its own set of rules. I bet fellow workers like to see their weekends diminished to fill in the slots for people who refuse to work on the weekends. But hey religion for me but not for thee.

    1
  24. Mikey says:

    Pfui. The Seventh-day Adventists of my day would never have sued to have Sabbath off. What kind of conviction is that?

    There’s a loophole, which many Adventists take advantage of: certain work in the service of others–for example, in the health care fields–is fine for Adventists on Sabbath, so the church has set up an extensive health system and hospital network and a lot of Adventists go to work in health care. Therefore, if they have to work on the Sabbath it’s fine.

    But taking a job they know in advance will require Sabbath work and then filing a lawsuit to avoid Sabbath work? The Adventists I grew up among would be disgusted.

    3
  25. de stijl says:

    @inhumans99:

    I believe it is Japan that declares national living treasures.

    Christopher Walken would be shortlisted for the US version if I were in charge.

  26. Gustopher says:

    @Jen:

    In the other, the potential employee (Dalberiste) misrepresented his availability–you don’t say that you’re available to work weekends if you aren’t available from Friday night to Saturday night. If the job says that’s a requirement up front, you don’t apply for the job, this isn’t hard.

    This seems like an excellent way to discriminate against Jews, if that’s your thing. (Not, your thing, specifically, but a generic you).

    Just sit with that a moment.

    It’s a minor scheduling issue up until it isn’t, and there’s no evidence presented that it would become more than a minor scheduling issue.

    If the company has 90% of the staff unable to work certain shifts (picking a number so high that no one can argue with it), then it would be a significant burden on the employer to accommodate yet another. When we get to that point, the employer can show that it poses a significant burden to accommodate this dude. They can probably demonstrate it sooner.

    I’m in favor of a great than de minimus standard — when having to pick between workers and corporations, I’m pretty likely to side with the workers. Even religious workers.

    When employers are regularly in the habit of accommodating workers, it makes it easier for you or me to ask for an accommodation, without having to jump through hoops. It sets a standard expectation that the employer has responsibilities to the worker. We are stronger when we have each others’ backs.

    As a rule of thumb, we shouldn’t be ceding control over our lives to our employers. And we shouldn’t be dividing ourselves when we have a common enemy — the employers.

    I’ve worked places where half the office was Jewish, the other half was Orthodox Christian, and where if Orthodox Christmas fell on a Friday, I was the open carrying the pager for our on call rotation that day because I didn’t believe in anything. It was fine. If your staff is diverse enough, the religious holidays work out.

    If it helps, consider the religious mentally disabled. They believe in sky gods.

    Now the mentally disabled religious people with their imaginary friends are just like the diabetic who needs a space to take their insulin, and the guy with the bad back that goes to physical therapy every Thursday morning.

    2
  27. Jen says:

    @Gustopher: That was most certainly NOT what I was suggesting, defending, or advocating.

    I can say with certainty that it is completely permissible for an employer to note at the time of application that weekend work can be expected. I know this because as I have noted above, I’ve had some of these jobs. Retail, restaurants, even our local library.

    There are also job requirements that note you should be able to lift XX pounds (25, 50, whatever).

    These criteria exist because these jobs need people who can rotate on a schedule and be available.

  28. KM says:

    @Gustopher:

    If your staff is diverse enough, the religious holidays work out.

    This is the kicker – not all companies will be be able to do that reasonably. Most won’t. What’s “diverse” enough to make something work? Is if “fair” to constantly expect certain people to shoulder a burden, especially if they don’t really want to do it? Tiny little 20 person company won’t be big enough to really diversify roles, let alone have cross-coverage sufficient for this kind of thing. Try telling Sally she has to wait on the church-goers every Sun (notorious bad tippers to boot) while her coworkers get off and she can’t go out and enjoy a weekend with her family; Sally will be looking for another job pretty soon and then what? Which church-goer gets to miss service to wait on their fellow congregants?

    That’s not even getting into conflicting requests or when religious holidays coincide with secular ones or things like birthdays. For example, Rosh Hashanah and Labor Day fall on the same day this year. Who gets the day off – the guy who requested it back in Jan or the religious person who expects the day since they’ve been covering for their Christian colleagues all year? If my kid’s birthday is on Easter that year, do I get it as a family person or does the observant Christian get it? Where exactly is religion supposed to rank against seniority, family obligations, emergencies?

    Again, I understand and respect religious obligations but that’s something you really, really need to take into account when you pick your job. Virtually every faith has some sort of hardship exception condition where you are exempt from a rule if you cannot follow it. Traditionally, you are to quit the job first, though since that’s the source of the angst and you are supposed to choose God over money. Employers should respect their employees’ needs and time but they can’t be responsible for your spiritual requirements.