Sikh Group Develops App to Report Airport Profiling (CNN)
EXCERPT: Airline travelers who feel they’ve been harassed at airport check-ins by screeners now have a speedier outlet on which to complain right at their fingertips.
The Sikh Coalition, a civil rights advocacy group, on Monday released a mobile application on iPhones and Android phones giving passengers who feel they’ve been racially or religiously profiled a way to speak out against screeners with the Transportation Security Administration.
The free mobile app, FlyRights, prompts disgruntled passengers with questions and allows them to quickly check the basis on which they feel they’ve been discriminated, then name the airport where the incident occurred, the airline and the flight number.
Key California Committee Passes Workplace Religious Freedom Act
Photo Credit www.istockphoto.com/ Amelia Johnson
In August 2010, Noor Abdallah, a Muslim woman who worked as a hostess at Disneyland’s Grand Californian hotel complained that Disney had refused to allow her to wear her hijab, or headscarf, which she wore as a sign of modesty in front of her customers. Disney, which had been working to accommodate her, found a blue scarf that would both fit with the uniform look and accommodate her religious beliefs. The issue was resolved.
Unfortunately, many other religious employees have not been this fortunate and the incidents of religious discrimination based on dress have continued to increase as they have been forced to choose between their faith and their job.
On April 16, 2012 the California Assembly Labor and Employment Committee passed the Workplace Religious Freedom Act of 2012. Introduced on April 11 by Assemblywoman Mariko Yamada (D-Davis), the bill, designated AB 1964 after the Civil Rights Act of 1964, is designed to decrease incidents of employment discrimination against employees who must wear religious dress as part of their religious commitment and adds it to other areas of protected “religious belief or observance.”
Particularly, this bill will address the concerns of Muslims and Sikhs who have been discriminated against in the workplace because of religious dress requirements, or “accommodated” in back rooms away from customers and the general public.
The code presently reads, “Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath of other religious holy days or days, and reasonable time necessary for travel prior and subsequent to a religious observance.”
AB 1964 would add: “and the practice of wearing religious clothing or a religious hairstyle.”
In order to defend against these claims, which can arise based on adverse employment action, refusal to provide reasonable accommodation, or failure to hire, employers will need to be able to demonstrate an “undue hardship” as defined in California law. Under the bill, an accommodation will not be considered reasonable if it requires an employee to be segregated from customers or the general public.
AB 1964 is scheduled to be heard next in the Assembly Judiciary Committee on April 24. The bill is being supported by a variety of faith groups including Catholics, Seventh-day Adventists, Muslims, and Sikhs. The bill also clarifies the employers’ requirement to provide reasonable accommodation by removing some of the ambiguities presently in the law.
A couple of years ago I had the privilege of testifying before the Oregon Judiciary Committee alongside the Northwest Religious Liberty Association in favor of the Oregon Workplace Religious Freedom Act which addressed the areas of religious dress and holy day observance. That bill was signed into law and as a result peaceful people of faith in Oregon have experienced greater workplace protections and employers have benefited from the clearer guidelines.
Click here for the latest Status on AB 1964: http://www.aroundthecapitol.com/Bills/AB_1964/20112012/
Timeline: Obama Administration Actions Affecting U.S. Religious Freedom | Christianity Today
Excerpt:
“The past year has marked a shift in religious liberty debates, one that previously centered on hiring rights but became focused on health care requirements. When President Obama first took office, faith-based groups were especially concerned that organizations that discriminate in hiring based on religious beliefs would become ineligible for federal funding. In 2011, the President indicated that he would not rescind an executive order on hiring rights. Just a week later, though, Health and Human Services ruled that religious groups other than churches must provide their employees contraception, triggering lawsuits and petitions. But contraception is not the only religious freedom issue faith-based groups are eyeing. The following timeline shows a number of actions the government took in the past year, setting precedents and priorities on various issues, including sexual orientation, health care, and hiring decisions.”
The U.S. Supreme Court made the Right Decision When It Upheld the Ministerial Exception
Since the U.S. Supreme Court issued its unanimous decision in Hosanna-Tabor v. EEOC on January 11, 2012, there has been a lot of discussion regarding whether the court did the right thing when it upheld the ministerial exception and denied jurisdiction in a case involving the termination of a ministerial employee. For reasons outlined below, I believe the Court made the right, albeit difficult, decision.
This was the case of the parochial school teacher who in addition to teaching on secular subjects also performed religious functions, Cheryl Perich, who was fired for threatening to file a lawsuit under the Americans with Disaiblities Act when she was not given her job back after returning from medical leave. The religious employer argued that it was against its religious beliefs for a minister to sue the church, and that these things had to be handled within the church structure.
The issue presented before the Court was whether the anti-retaliation prohibition of the Americans with Disabilities Act (ADA) could be constitutionally applied to a religious association’s retaliatory firing of a parochial school teacher who taught secular subjects and also performed religious functions and was designated a commissioned minister.
The Supreme Court found that the Establishment and Free Exercise Clauses of the First Amendment bar ministers from bringing lawsuits against their churches in which the ministers claim violation of employment discrimination laws. In this case, the Court found that Perich was a minister within the meaning of the ministerial exception, and therefore the First Amendment required dismissal of her employment discrimination suit against her religious employer.
The ministerial exception gives religious institutions certain rights to control employment matters without interference from the secular courts. It does not, as the Court decision points out, affect criminal, tort, or contract law. So churches cannot use it to shield themselves from liability for criminal acts, negligent behavior leading to accidents, or breach of contract. But it does protect churches from being hauled into court for religious decisions that have been made.
Some have tried to advance the theory that Perich had not fully pursued the administrative remedies available to her in the parochial system, but that would not have changed the outcome which hinged on the threshold issue of whether the ministerial exception applied to her. If the exception applied, the Court lacked jurisdiction.
Another misconception is that the Hosanna-Tabor decision somehow establishes the ministerial exception and adds something new. In reality, Congress specifically built an exception for religious organizations into Title VII of the Civil Rights Act of 1964. Title VII was enacted by Congress to prohibit employment discrimination on the basis of race, color, religion, sex, or national origin. (42 U.S. C. §§ 2000e-2(a)). Under the statutory exception, religious employers could prefer members of their own faith in making their hiring decisions.
The actual ministerial exception was born in 1972, when, in McClure v. Salvation Army, the U.S. Court of Appeals for the Fifth Circuit refused to hear a female minister’s gender discrimination claim. The court found that applying the provisions of Title VII to the employment relationship existing between a church and its ministers would therefore “cause the State to intrude upon matters of church administration and government” which would “result in an encroachment by the State into an area of religious freedom.”
The way it works is that courts in most Circuits rely upon a role-based or “primary duties test” to determine whether an employee is a minister within the exception, and whether or he she can bring suit under Title VII. Several circuits have adopted an approach that religious institutions should be able to choose who will perform certain spiritual functions. The first approach focuses on the employment relationship, while the second focuses on the right of churches to exercise their beliefs more freely.
Perich was, in many ways, the perfect “poster child” to challenge the ministerial exception. The case clearly involved a non-religious issue and for all the world, it looked like the church was looking for a way to fire her in a way that would be against public policy as applied to secular organizations and still avoid being hauled into court for violating the Americans with Disabilities Act.
In fact, the EEOC, the ACLU, and Americans United for Separation of Church and State (“AU”) rallied to Perich’s side. In its brief, AU argued that the ministerial exception did not entitle religious entities to discriminate or retaliate for reasons unrelated to religion, and that courts should determine whether an asserted religious justification for an action is pretextual.
In short, a church would therefore need to pass a two-prong test – first, it would have to demonstrate that its discriminatory rule was related to its religious beliefs; second, it would need to demonstrate that its action was not “pretextual.”
The AU brief gave some examples of what it meant to litigate on issues of discrimination that were not particularly related to a church’s doctrine. For instance, a Catholic Church could not be forced to hire a female priest, but an otherwise egalitarian church would not be permitted to fire a Sunday-school teacher when the pastor had a purely personal belief that “women should not work outside the home.” The examples continued for several pages, permitting organizations to make discriminatory doctrinal rulings but not permitting local churches from acting in contrast to non-discriminatory denominational policies or practice.
Applying an Employment Division v. Smith style argument, AU argued that generally applicable employment laws should apply to churches unless there is a need to safeguard a constitutional right. Why they would appeal to this analysis is particularly curious. The Smith decision created a major problem for free exercise of religion by subjecting religious minorities to the rule of the majority even if it goes against the minority’s religious beliefs. (One can hope that the Court, in the near future, might see the wisdom of applying the Hosanna-Tabor analysis to individual religious liberty rights and re-establishing the Free Exercise Clause that was compromised in Smith.)
The AU brief is helpful in that it provides a concrete example of the depth to which the government and courts would need evaluate in order to determine whether church employment decisions were permissible or not.
Under the approach proposed by AU, church decisions would be open to scrutiny as to whether they were doctrinal or not, and the investigators would then need to go into the minds of the decision makers to see whether such decisions were made in good faith and not merely to achieve a favorable outcome for the institution.
As people often say, bad cases often make bad law and the Supreme Court had just such an opportunity to throw away the ministerial exception in this highly sympathetic case and effectively destroy the wall of separation of church and state by allowing the state entry into the inner workings of the church. Fortunately the Court saw the bigger issues involved and made the right decision.
However by ruling the way it did, the Supreme Court protected the right of a religious organization to select its clergy without government interference and avoided placing church doctrine under government interpretation. Civil magistrates will not be in a position where they are forced to determine which religious view, that of the clergy member or the church, is correct.
Church leaders are free to choose ministers who they believe will carry their message forward.
While most religious organizations sincerely strive to provide fair and equitable treatment to all employees, this does not mean that some religious organizations will not abuse the “ministerial exception” to make poor personnel decisions that could lead to costly litigation if they were secular organizations. But organizational decision makes should realize that they will ultimately answer to a Higher Power even if these cases may not be pursued in the civil courts.
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For more information on the ministerial exception and its history, I would recommend the Charleston Law Review article by Todd Cole, “The Ministerial Exception: Resolving the Conflict between Title VII and the First Amendment.” The article is available online at http://www.charlestonlawreview.org/archive/vol4num4/Cole.pdf
Ruling on Ministers: What the Supreme Court said & didn’t say | Oregon Faith Report
Excerpt: The U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, held that the “ministerial exception” bars a school teacher from bringing employment discrimination claims against her religious employer. The Court’s ruling clearly grants religious institutions the freedom to employ (and terminate) employees who act as ministers of their faith. Yet the Court’s decision does not clearly delineate how a religious organization (or their employees) determines who is and who is not a “minister.”
10th Circuit Rules Oklahoma Amendment Barring Islamic Law was Unnecessary and Discriminatory
OKLAHOMA –The 10th U.S. Circuit Court of Appeals has upheld a lower court’s ruling that blocked the implementation of the “Save Our State” amendment. The amendment, approved by 70 percent of Oklahoma voters in 2010, barred “Islamic law” in the state, even though there was no movement to impose sharia law in Oklahoma.
Judge Scott M. Matheson wrote on behalf of the unanimous court, “Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses has resulted in concrete problems in Okalahoma.” (Awad v. Ziriax).
Larson test a Gateway to Addressing Laws that Discriminate Between Religions
The 10th Circuit also applied the Larson test as a gateway to the Lemon test. While the Lemon test Lemon v. Kurtzman, 403 U.S. 602 (1971) applied to “laws affording uniform benefit to all religions, and not to provisions…that discriminate among religions,” in Larson v. Valente, 456 U.S. 228, 255 (1982), the Supreme Court ruled that if a law discriminated between religions, it could survive only if it is “closely fitted to the furtherance of any compelling interest asserted.”
In the case of California Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008), the 10th Circuit had described Larson, “The First Amendment mandates governmental neutrality between religion and religion …. The State may not adopt programs or practices…which aid or oppose any religion….. This prohibition is absolute.” Larson, 456 U.S. at 246.
Proponents of the Oklahoma amendment had argued that Larson was no longer good law because it is used infrequently, but the 10th Circuit ruled that the Supreme Court had never overturned it, and stated that this rarity “likely reflects that legislatures seldom pass laws that make ‘explicit and deliberate distinctions between different religious organizations’ as contemplated in Larson.”
In fact, the Supreme Court had referenced the rarity of this type of case in Church of the Lukimi Babalu Aye, Inc., v. City of Hileah, 508 U.S. 520 (1993)(“The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions.”)
The Larson case facts were mild compared to the facts of Oklahoma amendment case. In the Larson case, a Minnesota statute imposed certain registration and reporting requirements on religious organizations that solicited more than 50 percent of their funds from non-members. No specific religious group was identified. But the Oklahoma statute specifically targeted Islam, and was defined in these terms: “Sharia Law is Islamic Law. It is based on two principle sources, the Koran and the teachings of Mohammed.” (SQ 755).
The Oklahoma amendment further instructed the courts to “uphold and adhere to … if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.” The law did not prohibit Oklahoma courts from upholding laws of any other religion. The Oklahoma amendment also included language that Oklahoma “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.”
Because of the lack of Sharia law in Oklahoma, the Court ruled that the harm that the amendment would remedy was “speculative at best and cannot support a compelling interest.” Further, the court said that there was no way to tell whether the amendment would solve any Sharia law problem since “one cannot try on a glove to see if it fits when the glove is missing.”
The Court further found that Muneer Awad, a Muslim who had filed the case, would suffer irreparable injury without the injunction. The court applied on the principle that “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumara v. Hurley, 242 F.3d 950. The 10th Circuit also noted that although states can legislate in certain areas (including ballot initiatives), “these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”
The full decision is available here: http://www.ca10.uscourts.gov/opinions/10/10-6273.pdf
CONCLUSION: Certainly, if Islamic law had been imposed, it would be a violation of the Establishment Clause. But without that even being at issue, the Amendment became an excuse to marginalize a religious group.
New York City ‘Workplace Religious Freedom Act’ Clarifies Religious Accommodation Requirements for Employers
On August 30, 2011, New York City Mayor Michael Bloomberg signed the “Workplace Religious Freedom Act” (Int. 632-A) into law clarifying what requirements employers are required to meet to demonstrate that they have done all that is necessary to make a reasonable attempt to accommodate the bona fide religious needs of employees.
Under pre-existing law, employers were required to provide accommodation so long as it did not cause an “undue hardship” for the employer. However, since “undue hardship” was not clearly defined, it was generally viewed as a requirement that the “de minimis cost or burden” standard be applied.
The new City law amends sections 8-102 and 8-107 of the New York City Human Rights Law (“NYCHRL”) to defines what “undue hardship” means:
“Undue hardship” shall mean “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:
- The identifiable cost of the accommodation, including the costs of loss of productivity and the cost of retaining or hiring of employees or transferring of employees from one facility to another, in relation to the size and operating cost of the employer.
- The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice, and
- For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.
The Act also provides that employers in New York City can establish that a religious accommodation will result in an “undue hardship” by showing that it will result in the employee’s inability to perform the essential functions of his or her position.
Potential remedies for violating the law include reinstatement, back pay, compensatory damages, attorney’s fees, and employers could be subject to a civil penalty of $125,000.
From a practical standpoint, employers should consult with human resources experts to ensure compliance by making sure that anti-discrimination policies are up to date, and job descriptions should be tailored to accurately describe portions of the job duties that involve attendance, availability, and dress / grooming requirements.
This law is of particular significance to Muslims and Sikhs who have faced an increase in discrimination since the events of 9/11, and will apply to both public and private sector employers.
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New York Attorney General Launches Religious Rights Initiative to Enforce Anti-discrimination Laws
(Media-Newswire.com) – NEW YORK – Attorney General Eric T. Schneiderman today announced the launch of the Religious Rights Initiative, a project of the office’s Civil Rights Bureau that will address religious rights issues and enforce anti-discrimination laws. The Religious Rights Initiative will target faith-based discrimination and violations of religious rights through public education, outreach and law enforcement, including litigation.
The Attorney General announced the launch of the Religious Rights Initiative in remarks before the Anti-Defamation League.
“Our state’s rich history of religious diversity is founded on our nation’s Bill of Rights and enshrined by laws that protect New Yorkers’ right to freely practice their faith,” Attorney General Schneiderman said. “The Religious Rights Initiative will focus on violations of this fundamental freedom, ensure that religious rights are protected, and work with communities throughout the state to foster and promote religious tolerance.”
The Religious Rights Initiative will lead a public education and outreach campaign to help inform communities around the state about the requirements of the state’s anti-discrimination laws. The campaign will also advance the Civil Rights Bureau’s enforcement efforts, combat religious discrimination through litigation and advocacy, and promote the process for filing religious discrimination complaints.
As part of the Initiative, the Attorney General’s office will release a series of “Know Your Rights” publications to outline strategies to both address and prevent religious discrimination in a variety of settings and circumstances. The first publication, “Religious Rights in the Workplace,” outlines the practical application of federal and state laws that protect religious freedom and prohibit religious discrimination. A resource for employees and employers, the pamphlet provides guidance concerning requests for religious accommodation in the workplace for days of religious observance, among other issues.
With the number of religious discrimination claims filed with the federal government having more than doubled since 1997, this new initiative reflects Attorney General Schneiderman’s commitment to religious freedom and fulfills his pledge to combat and prevent religious discrimination.
New Yorkers are encouraged to visit the Religious Rights Initiative website for more information, or to report a potential violation at http://www.ag.ny.gov/religiousrights. Violations may also be reported by contacting the Religious Rights Initiative in the Civil Rights Bureau at ( 212 ) 416-8250 or ( 800 ) 771-7755.
The Religious Rights Initiative is being handled by Assistant Attorney General Kayla Gassmann and Director of Community Affairs and Engagement for Religious Rights Alyson Spindell under the supervision of Spencer Freedman, Director of the Religious Rights Initiative and Chief Counsel for Civil Rights, and Civil Rights Bureau Chief Kristen Clarke.
Ron Meier, New York Regional Director of the Anti-Defamation League, said: “We welcome Attorney General Schneiderman’s commitment to safeguarding the religious liberty of all New Yorkers. His new ‘Religious Rights Initiative’ is important and timely. We applaud his leadership in this area and look forward to working closely with him on this new effort.”
Richard E. Barnes, Executive Director of the New York State Catholic Conference, said: “As the representatives of the largest religious denomination in the state, issues of religious liberty and discrimination have always been in the forefront of our concerns, both as they relate to threats against individuals and institutions. Such threats have caused the Bishops of the United States to redouble their efforts in examining laws and regulations that support and foster such discrimination, and public policies that threaten religious liberty. We are grateful that Attorney General Schneiderman has undertaken this effort of enormous concern to all those who cherish the rights granted to Americans by our Constitution.”
Reverend A.R. Bernard, Senior Pastor of the Christian Cultural Center, said: “Our country is founded on certain freedoms, and the right to practice our faith is one we must protect. Attorney General Schneiderman’s Religious Rights Initiative will be a critical part of the work to educate communities, prevent discrimination, and promote understanding. I support the Attorney General in his effort against religious discrimination.”
Rev. Chloe Breyer, Executive Director of the Interfaith Center of New York, said: “This is a welcome and timely initiative. New Yorkers of so many faiths and traditions give so much to our state. The time has come for their rights to be respected.”
Dr. Lenny Caro, President & CEO for the Bronx Chamber of Commerce, said: “We commend Attorney General Schneiderman for his commitment to this issue. New York State is a melting pot of a multitude of religions. The Religious Rights Initiative will provide businesses and employees with the guidance needed to ensure that religious rights are respected in the workplace. This project is a crucial resource.”
Safia Hussain, President of the Muslim Bar Association of New York, said: “The protection of religious rights is a critical issue for the Muslim community in New York. Although Muslims are approximately two percent of the American population, anti-Muslim bias complaints account for twenty-five percent of the total number of complaints received by the EEOC in recent years. Muslim children remain the unfortunate target of bullying at school, and campaigns against the establishment of mosques continue to attack the rights of Muslims to freely practice their faith.”
Sapreet Kaur, Executive Director of the Sikh Coalition, said: “We wholeheartedly welcome the launch of Religious Rights Initiative. Sikh New Yorkers, like members of many faith communities, face many challenges to the full realization of their rights under our state and federal laws. Attorney General Schneiderman is to be commended for bringing focus and attention to these issues.”
Donna Lieberman, Executive Director of the New York Civil Liberties Union, said: “The right of religious freedom is fundamental, and it is therefore important for the Attorney General’s office to help the public understand the scope of what is often a complex issue.”
Todd McFarland, Associate General Counsel of the Seventh-day Adventist Church, said: “The Seventh-day Adventist Church applauds the New York Attorney General’s initiative being led by the Civil Rights Bureau. Religious freedom is our first freedom and is as important and relevant in today’s religiously pluralistic society as it was to our founding fathers. We look forward to assisting the Bureau in any way we can.”
Michael S. Miller, Executive Vice President and CEO of the Jewish Community Relations Council of New York, said: “Attorney General Schneiderman is creating a ’311′ to help people learn more about their religious rights in New York and a ’911′ hotline for New Yorkers denied appropriate religious accommodations in the workplace and other venues. We commend Attorney General Schneiderman on this initiative and his ongoing efforts to protect the religious rights of all New Yorkers.”
Zead Ramadan, President, Board of Directors of the Council on American Islamic Relations-NY, said: “We applaud the Attorney General for his bold new initiative to combat religious discrimination in New York State. As the nation’s largest Muslim civil rights group, dedicated to empowering the Muslim community, we look forward to working toward our common goals of ensuring religious freedom and preventing discrimination.”
http://media-newswire.com/release_1162315.html
Religious leaders line up in support of Supreme Court case – The Courier-Journal
The U.S. Supreme Court will soon hear a case involving whether churches can “discriminate” when making employment decisions about employees who are not clergy.
EXCERPT:
[Many religious groups] support the right of religious groups to hire and fire teachers who could be construed as “ministers” on grounds that would be otherwise discriminatory, whether due to race, gender and disability or other reasons. The case could affect hundreds of thousands of teachers and other employees in faith-based schools and organizations.
Fear, Incorporated: Who’s Paying for all that Islamophobic Paranoia (FP)
EXCERPT: One of the distinctive features of American democracy is the permeability of our political institutions. It’s an incredibly wide-open system, given First Amendment freedoms, the flood of money that corrupts the electoral process, and a wide array of media organizations and political journals that can be used to disseminate and amplify various views, even when they have no basis in fact.
This situation allows small groups of people to have a profound impact on public attitudes and policy discourse, provided that they are well-organized, well-funded, and stay on message.
– Stephen M. Walt