To Shave or Not to Shave: That is the Question in This Workplace RFRA Case

Beard In the last two weeks or so, my employment discrimination law class has been studying disparate impact litigation.  One of the more challenging cases that we study is the Fitzpatrick case from the 11th Circuit concerning the no-beard policy of a fire department.

The policy is supported by the need to have a good seal between a firefighter’s respirator and his face.  The policy was claimed to have a disparate impact on black firefighters with a skin condition making in difficult for them to shave.  The 11th Circuit, in 1993, found that although there might be a disparate impact, the fire department was able to show that the practice was consistent with business necessity because of safety concerns the fire department had regarding use of these respirators by firefighters even with so-called shadow beards.

Fast-forward fifteen years and now comes a similar case in the D.C. Circuit concerning the no-beard policy of the fire department. Instead of race discrimination, this suit alleges that a clean-shaven face for safety personnel violates some employees’ religious freedoms under the Religious Freedom Restoration Act of 1993 (RFRA).  As such, the Title VII framework does not apply and instead the court must balance the exercise of religious liberties with competing government interests. This type of balancing test reminds me much more of a public employee case involving free speech rights.

In any event, the BLT blog has the details:

Continue ReadingTo Shave or Not to Shave: That is the Question in This Workplace RFRA Case

Of Speeches and Sermons

Last week saw another round in the ongoing legal battle between the University of Wisconsin and the Madison campus’ Roman Catholic Foundation. In Roman Catholic Foundation v. Regents, 2008 U.S. Dist. LEXIS 72980 (W.D. Wis., September 24, 2008), the court addressed the University’s refusal to allow segregated fees (that portion of a student’s tuition reserved for the funding of student organizations) to be used for certain RCF activities that the University regarded as worship, proselytizing, or sectarian instruction. These activities involved programs such as spiritual counseling, training RCF student leaders, the purchase of a drum shield to be used by the RCF’s praise band, and the printing of instructional pamphlets on praying the Rosary.

District Judge Lynn Adelman of the Eastern District of Wisconsin, sitting by designation, entered a declaratory judgment “stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.”

As far as this goes, it seems to me to be consistent with recent decisions of the United States Supreme Court holding that even highly sectarian religious speech may not be excluded from a public forum if is otherwise within the forum’s purpose.

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No Way, No How, No Sharia

Representative Tom Tancredo has introduced something he calls the “Jihad Prevention Act.” The bill would exclude from  admission into the United States of “[a]ny alien who fails to attest . . . that the alien will not advocate installing a Sharia law system in the United States . . . .” The bill raises a number of questions but the one that calls out to me is the question of the government’s interest in the religious beliefs of its citizens. Constitutional doctrine says that the state must make no religious decisions and treat all equally but, as I argue in a forthcoming paper (and I was hardly the first to notice), the government engages in all sorts of conduct that is calculated to shape the religious beliefs of its citizens, and there is probably no way to avoid that. Certain religious systems may well be incompatible with liberal democracy. Christian Dominionism may be one of them. Perhaps a form of Islam insisting upon Sharia law is another.

Does the government have an interest in discouraging the formation and spread of such beliefs? If so, what can it do to further that interest?

Continue ReadingNo Way, No How, No Sharia