Workplace religious accommodation, cont’d

A Muslim flight attendant has filed an EEOC complaint against ExpressJet; among her allegations are that the company has not adequately accommodated her desire not to serve alcohol to patrons, even though she says an arrangement under which she handed off that task to colleagues had previously proved workable [CBS Detroit] Eugene Volokh has a lengthy explainer on workplace religious accommodation, and argues that Kim Davis would have had a more colorable legal case had her lawyers filed under Kentucky’s state Religious Freedom Restoration Act (RFRA). And at Cato’s Constitution Day on September 17 I’ll be discussing my forthcoming piece on EEOC v. Abercrombie & Fitch, the hijab-accommodation case.


  • “an arrangement under which she handed off that task to colleagues”

    I wonder how much her pay was reduced because of the reduction to her responsibilities? Or which responsibility of her colleagues did she assume in return for passing one of hers to them?

    • Interesting comment. When I worked for an arm of the federal government, there were duties that needed to be performed Friday night and Saturday mornings. We had two observant Jews who worked in our group, so the rest of the group had to pick up the slack. What was particularly irksome–management never acknowledged that the “accommodation” was on the backs of the rest of the group or that the arrangement was, in a sense, decidedly unfair. The two guys also never said thank you, nor did they pick up slack in other ways.

      I offer this example–not out of personal animosity, but out of the fact that accommodation can be hard and it can impose hardships on others.

  • The sticking point as I see it is Davis is an elected official bound to follow and in her capacity enforce the law. The ExpressJet stewardess is not elected and so doesn’t enjoy the unique position of Davis.

    I’m not entirely sure how Davis should have been handled. Arrest and jail seems a little extreme in her case, since as I understand Kentucky has no law directing her to issue SSM licences. The right was granted with Obergefell, but the law wasn’t yet created to enforce it. Even so, she was warned of her precarious position.

    The stewardess though? Sorry, but when you signed on, you knew that serving alcohol was part of your job. You were fully aware when that moment came in your training. Perhaps she should try for a position with Emirates. Certainly a step up is prestige for her.

    The question comes to this: why carve exceptions for Muslims, but not for Christians?

  • I just had a look at Volokh’s argument. It’s so brilliantly simple. I guess that’s why he’s paid the big bucks 🙂

  • >The question comes to this: why carve exceptions for Muslims, but not for Christians?

    Much can be said in criticism of the current law of workplace religious accommodation, but it is not actually true that it carves exceptions for Muslims but not Christians. As I note in my forthcoming article, workplace religious accommodation is one of those issues (there are a lot of them) that have flipped ideological orientation over the course of a generation or two: it used to be a cause championed by Justices Brennan and Marshall at the Supreme Court and liberal Senators, while conservatives were the ones most skeptical of it.

    • I get that it isn’t the law doing the carving. It’s societal attitudes and realities doing so. What I don’t get is, even with our current norm, how is this happening?

      I genuinely fear eventually there will be a push-back over this and a whole host of other items, and it isn’t going to be calm, reasoned, or structured.

  • I agree that Volokh’s suggestion does sound like a decent workaround. However, in the supporting discussion

    licenses are available from neighboring counties. Compare Ezell v. City of Chicago (7th Cir. 2011), which rejected the “you can go to the neighboring city” argument when it came to Chicago’s ban on shooting ranges and Schad v. Borough of Mt. Ephraim (1981), which did the same as to a town’s ban on live entertainment.

    While that sounds reasonable to me and would be compelling to me personally, does not the issue of bakers refusing to bake wedding cakes for gay couples, when other bakers may have been available within the same city, let alone a neighboring county — well of course Kentucky courts are not bound by other states’ case laws, but are not the parallels sufficiently similar to argue that comparable damages are warranted? Per offense?

    Such is logic


  • Kim Davis wants, and was, elected to perform a job. She promised to perform all her duties according to the law, but now she claims she can discriminate against those who do not follow her religious beliefs. She wants to disobey the law yet keep her job and get paid for doing nothing.

  • The governments say (in some cases at least) that a private business must accommodate a religious objector if the burden is not too great. Let it not be forgotten that the governments themselves are free to apply unreasonable burdens on citizens and businesses all they want! (tongue in cheek)

    On the specific case of Kim Davis, I agree with Proof above that she was elected to perform a job and as a government acter she is required to do that job. Volokh’s recommendation for reasonable accommodation is a good one. If you haven’t read the piece, it really is worthwhile.

    I disagree with Proof on two points. She is not discriminating – if I read correctly, she is not signing any marriage licenses at all. Second, she is not getting “paid for doing nothing.” There is plenty of other work that the County Clerk does. Please resist the temptation to use extreme hyperbole.

  • […] on the Equal Employment Opportunity Commission complaint by a Muslim flight attendant, covered here last week, who doesn’t want to serve alcohol (“scruples about screwpulls”) and what, if […]