WEBVTT - The Pitfalls of Accommodating Religious Employees

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>Last term, it was a high school football coach who

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<v Speaker 1>wanted to pray on the fifty yard line right after games.

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<v Speaker 1>This term, it was a part time postal worker in

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<v Speaker 1>rural Pennsylvania who didn't want to work on Sundays. I

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<v Speaker 1>told them I'm not going to be able to work

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<v Speaker 1>on the Lord's Day at all.

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<v Speaker 2>I didn't really think I should have to quit.

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<v Speaker 1>I really expected the post office to find a way

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<v Speaker 1>to accommodate me. And the Supreme Court agreed with Gerald

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<v Speaker 1>Groff in a unanimous decision expanding an employer's obligation to

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<v Speaker 1>accommodate the religious practices of its employees without clear guidelines,

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<v Speaker 1>under what circumstances can an employer force coworkers to carry

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<v Speaker 1>the burden of an employee's religious practices or beliefs, or

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<v Speaker 1>even their religious expression. Joining me is Debbie Kamener, a

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<v Speaker 1>professor at Peru College at the City University of New York,

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<v Speaker 1>tell us a little about this case of the fill

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<v Speaker 1>in postal worker who refused to fill in on Sundays.

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<v Speaker 2>So basically what happened is that there was a postal

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<v Speaker 2>worker in rural Pennsylvania, and he was a sabbatarian, and

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<v Speaker 2>he eventually ended up quitting his job and sued his

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<v Speaker 2>employer because he had been subject to progressive discipline for

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<v Speaker 2>refusing to work on his Sunday shifts. And the postal

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<v Speaker 2>Service simply was unable to find coverage in the small

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<v Speaker 2>rural postal office.

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<v Speaker 1>And what did the Supreme Court find the broad ruling.

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<v Speaker 2>The big issue in this case is that there is

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<v Speaker 2>a law, a civil rights law, Title seven of the

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<v Speaker 2>Civil Rights Actor of nineteen sixty four, and it mandates

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<v Speaker 2>religious accommodation in the workplace unless it would cause an

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<v Speaker 2>undue hardship. The big issue in this case is what

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<v Speaker 2>does undue hardship mean? Now? The Supreme Court had previously

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<v Speaker 2>said in an earlier case from about forty seven years

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<v Speaker 2>ago that undue hardship means more than a diminimus or

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<v Speaker 2>minimal cost. In this case, the Court changed its ruining

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<v Speaker 2>and said that undue hardship in fact means a substantial cost.

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<v Speaker 2>So what this means is that now additional accommodation is

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<v Speaker 2>going to be needed of religious employees in the workplace.

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<v Speaker 2>In terms of graph himself, the case was sent back

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<v Speaker 2>down to the lower court to decide whether or not

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<v Speaker 2>accommodation is possible under this new substantial cost standard. So

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<v Speaker 2>in terms of Grass, we still don't know whether or

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<v Speaker 2>not accommodation of him as required. In terms of employees

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<v Speaker 2>throughout the United States, this is really a pretty drastic

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<v Speaker 2>change in the rules of the workplace.

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<v Speaker 1>It sounded in this case like the post Office did

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<v Speaker 1>meet the standard of substantial costs. I mean, this was

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<v Speaker 1>a rural post office and officials initial tried to get

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<v Speaker 1>substitutes for grath shifts. They couldn't always accommodate him, and

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<v Speaker 1>they said his absences created a tense environment and contributed

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<v Speaker 1>to morale problems. I believe some employees even transferred out right.

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<v Speaker 2>And the Supreme Court even acknowledged that. The Supreme Court said,

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<v Speaker 2>in this specific case, it might be a substantial cost.

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<v Speaker 2>We just don't know. We're sending it back down with

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<v Speaker 2>this new rule meaning that you have to accommodate unless

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<v Speaker 2>there's a substantial cost, just so that you the lower

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<v Speaker 2>court knows more accommodation is needed, and the Supreme Court actually,

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<v Speaker 2>you know, agreed with that in this specific case. I

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<v Speaker 2>think the really big issue in this case is it's

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<v Speaker 2>changing the way rights are balanced. So it's changing the

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<v Speaker 2>balance of religious rights against other fundamental rights in the workplace.

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<v Speaker 2>Whether that's the right to be free from discrimination, is

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<v Speaker 2>the right to public health, you know, or whatever it

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<v Speaker 2>might be. It's a real sea change in terms of

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<v Speaker 2>of how the workplace is going to run in the future.

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<v Speaker 1>So explain the additional question about when an accommodation burdens

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<v Speaker 1>the colleagues or the co workers of the religious employee.

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<v Speaker 2>What's interesting to me is the Roberts Court is both

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<v Speaker 2>pro business and also pro religion. So they come down

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<v Speaker 2>with this decision which requires additional religious accommodation in the workplace,

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<v Speaker 2>but they do it in a way that leaves the

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<v Speaker 2>door open for employers to shift the cost of accommodation

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<v Speaker 2>to coworkers. So, to give you an example, you have

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<v Speaker 2>an employee who needs time off for religious reasons, he's

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<v Speaker 2>a sabbatarian. The employer could pay employees premium wages or

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<v Speaker 2>over time, the employer could hire additional employees. All of

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<v Speaker 2>that would be a cost on the employer. What employers

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<v Speaker 2>may end up doing instead is saying to co workers, sorry,

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<v Speaker 2>you have no choice. This is what the law is now,

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<v Speaker 2>and you need to work the religious employees on desirable shifts.

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<v Speaker 2>So I think that is the way that we may

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<v Speaker 2>end up seeing this burden being shifted to coworkers as

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<v Speaker 2>opposed to the actual businesses being willing to pay the

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<v Speaker 2>additional cost.

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<v Speaker 1>So what did the court mean when it said that

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<v Speaker 1>the impact on coworkers must quote have ramifications for the

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<v Speaker 1>conduct of the employer's business.

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<v Speaker 2>I have. I have no idea, and I think that's

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<v Speaker 2>what the problem is. It's not that I have no idea,

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<v Speaker 2>but that nobody has any idea. But the decision focused

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<v Speaker 2>primarily on the definition of underhartship, and the idea is

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<v Speaker 2>a substantial cost, not more than a deminamous cost, and

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<v Speaker 2>they want to turn to the issue of burden on coworkers.

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<v Speaker 2>You know, it was about a page and a half.

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<v Speaker 2>It just included this kind of throwaway line about the

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<v Speaker 2>conduct of the employer's business without really explaining what that means.

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<v Speaker 2>So does that mean that if employees are very very

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<v Speaker 2>upset and complete and it harms morale and productivity, it

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<v Speaker 2>would be an undue hardship. But if you have employees

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<v Speaker 2>who are scared about losing their jobs, and making ways,

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<v Speaker 2>so they just quietly do the religious employees' share of

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<v Speaker 2>undesirable work. It's not an undue hardship. I just don't know.

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<v Speaker 2>You know, in the past, most of the federal appellate

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<v Speaker 2>courts that considered this issue said that a burden on

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<v Speaker 2>a coworker alone could be an undue hardship. So just

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<v Speaker 2>making a coworker work or religious employees undesirable shifts, that

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<v Speaker 2>would be an undue hardship, regardless of the impact on

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<v Speaker 2>the business itself. And it's unclear at this point if

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<v Speaker 2>that's the law.

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<v Speaker 1>Looking at the implications of this decision, why do you

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<v Speaker 1>think the three liberal justices agreed.

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<v Speaker 2>It was a unanimous decision, which I think is really

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<v Speaker 2>really quite shocking. And I think the reason why the

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<v Speaker 2>liberal justices probably agreed with this is because it was

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<v Speaker 2>a compromise that kept the court from going even further.

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<v Speaker 2>That's my guess. I think the problem with the liberal

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<v Speaker 2>justices going along with this is that by virtue of

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<v Speaker 2>the fact it's the unanimous decision, the unanimity alone sort

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<v Speaker 2>of makes it feel like it is a reasonable decision

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<v Speaker 2>and it's not such a big decision. And I think

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<v Speaker 2>that on top of all of the blockbuster decisions that

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<v Speaker 2>came at at the end of the term on affirmative

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<v Speaker 2>action and on student loans and on public accommodation looks.

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<v Speaker 2>I think all of those decisions sort of took the

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<v Speaker 2>focus away from graph which is also a crucially important decision,

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<v Speaker 2>and the fact it was this unanimous decision, a lot

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<v Speaker 2>of people, a lot of commentators sort of felt like

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<v Speaker 2>it just wasn't that big deal. I think it is

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<v Speaker 2>a huge, huge deal, huge change in the workplace.

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<v Speaker 1>And it just slipped by. So do you think that

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<v Speaker 1>this is going to lead to a lot more litigation

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<v Speaker 1>rather than less just trying to figure out what the

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<v Speaker 1>Supreme Court actually meant.

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<v Speaker 2>Yes, I think it's going to lead to a lot

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<v Speaker 2>more litigation for a few reasons. I think one is

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<v Speaker 2>trying to figure out what the Supreme Court meant, and

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<v Speaker 2>I think the second is religious rights activists sort of

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<v Speaker 2>trying to test exactly what it means how much accommodation

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<v Speaker 2>can be required. I do think that this is really

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<v Speaker 2>part of a broad trend of the Supreme Court favoring

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<v Speaker 2>religious rights over other rights in cases where it's balancing

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<v Speaker 2>religious rights against other really important fundamental rights, and I

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<v Speaker 2>think this is going to end up leading to an

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<v Speaker 2>enormous amount of litigation.

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<v Speaker 1>And in this case, as you mentioned, it's a pro

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<v Speaker 1>business court and a pro religion court, and they're ruling

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<v Speaker 1>basically against business because it seems as if religious rights

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<v Speaker 1>trump every other right that comes before this court.

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<v Speaker 2>I agree with that. I agree that religion trump's other rights.

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<v Speaker 2>And I think also the way the decision is drafted,

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<v Speaker 2>allowing employers to shift the cost to the coworkers in

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<v Speaker 2>a way, it does allow the court to still come

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<v Speaker 2>down with a decision which it's not pro business, is

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<v Speaker 2>not anti business, it's you know, really anti coworkers who

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<v Speaker 2>are not requesting religious accommodation.

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<v Speaker 1>So you write that it's ironic, you said scary. I

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<v Speaker 1>say ironic that lower courts may now require permitting expression

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<v Speaker 1>that demeans LGBTQ plus individuals under a civil rights law

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<v Speaker 1>aimed at prohibiting employment discrimination and providing equality in the workplace.

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<v Speaker 1>I mean, you can't pick that up, but no.

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<v Speaker 2>It's insane. It's absolutely crazy that this is what is

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<v Speaker 2>now going on, and particularly because that stay in civil

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<v Speaker 2>rights law a few years ago in the bow Stock

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<v Speaker 2>case was interpreted to cover and include as a protected

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<v Speaker 2>class LGBTQ plus individual. The one thing I feel like

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<v Speaker 2>is sometimes a little bit lost is that you know,

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<v Speaker 2>there are many cases where religious accommodation really is possible

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<v Speaker 2>without it being an unfair burden on co workers. Like

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<v Speaker 2>if you have a business that work, you know, runs

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<v Speaker 2>seven days a week, three hundred and sixty five days

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<v Speaker 2>a year, and you have a Saturday sabatarian, you could

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<v Speaker 2>probably arrange a shift swop where that person gets their

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<v Speaker 2>Saturday off and works Sunday and someone else gets Sunday

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<v Speaker 2>off and works Saturday. So you know, there really are

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<v Speaker 2>a lot of times, in a lot of ways and

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<v Speaker 2>cases where religious accommodation is possible. And I feel like

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<v Speaker 2>sometimes the response to these types of cases almost comes

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<v Speaker 2>out is being anti religious. It's not that it's anti religious,

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<v Speaker 2>it's that you need to balance, you know, in society,

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<v Speaker 2>religious rights are important, but there are other countervailing rights

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<v Speaker 2>which are also very very important.

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<v Speaker 1>Do you think the court also is being pushed because

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<v Speaker 1>they're taking these cases. You have these Christian legal organizations

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<v Speaker 1>that are specifically bringing these cases to push the envelope.

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<v Speaker 1>For example, the case involving the Colorado Web designer who

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<v Speaker 1>hadn't designed any wedding websites yet and hadn't been asked

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<v Speaker 1>by a gay couple to design their wedding website yet,

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<v Speaker 1>took her case to the Supreme Court, and the Supreme

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<v Speaker 1>Court said, you didn't have to design wedding websites for

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<v Speaker 1>gay couples.

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<v Speaker 2>I one hundred percent agree with that, but the Court

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<v Speaker 2>doesn't have to grant start or agree to hear these cases.

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<v Speaker 2>One of the things which is really interesting in the

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<v Speaker 2>Graph case is over the last few years, there were

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<v Speaker 2>four times, including in the Graph case, where parties asked

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<v Speaker 2>the Supreme Court to hear a case interpreting the religious

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<v Speaker 2>accommodation requirement under Title seven and to increase the accommodation

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<v Speaker 2>requirement in the prior three cases. For sort of technical reasons.

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<v Speaker 2>The Court refused to hear the cases. But what the

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<v Speaker 2>conservative justices did a number of them real concurring opinions

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<v Speaker 2>where they said, we agree, we're not going to hear

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<v Speaker 2>this specific case, but we want to hear an appropriate

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<v Speaker 2>case where we can reinterpret the religious accommodation requirement of

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<v Speaker 2>Title seven. So I think it really is a court

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<v Speaker 2>looking for these kinds of cases.

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<v Speaker 1>Is the addition of Amy Cony Barrett a reason why

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<v Speaker 1>they're moving the way they are.

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<v Speaker 2>I think it is a big issue. I think that

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<v Speaker 2>since she has joined the court, it has really changed

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<v Speaker 2>the balance when it comes to religious right, not just

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<v Speaker 2>in the workplace, but in society as a whole, because

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<v Speaker 2>this was part of the bigger trend. Like you mentioned,

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<v Speaker 2>the three h three creative case. You know, Dobbs wasn't

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<v Speaker 2>broad is a religion case, but it really was a

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<v Speaker 2>case of favored religious conservatives and overturning Roe v Ways

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<v Speaker 2>right for an individual to have an abortion. There was

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<v Speaker 2>the case last term Kennedy versus Bremerton that said that

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<v Speaker 2>the First Amendment gives a high school football coach the

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<v Speaker 2>right to neil and pray at midfield after football games.

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<v Speaker 2>So I think this really falls within this general context.

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<v Speaker 1>And I can't think of a recent case involving a

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<v Speaker 1>non Christian religion, for example, someone who's a Muslim or

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<v Speaker 1>an atheist.

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<v Speaker 2>You know. Interestingly, there was, and I'm trying to remember

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<v Speaker 2>the exact data, it was sometime around twenty sixteen twenty

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<v Speaker 2>sixteen Abercarambi, which involved a Muslim woman and her right

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<v Speaker 2>to where he in the workplace Right that interpreted this

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<v Speaker 2>same statute. But in general it is Christian conservatives who

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<v Speaker 2>will bring in these cases.

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<v Speaker 1>I really appreciate your insights, Debbie. That's Debbie Kamener, a

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<v Speaker 1>professor at Peru College at the City University of New York.

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<v Speaker 1>And that's it for this edition of The Bloomberg Law Show.

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<v Speaker 1>Remember you can always get the latest legal news on

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<v Speaker 1>our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

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<v Speaker 1>and at www dot bloomberg dot com slash podcast Slash Law,

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<v Speaker 1>And remember to tune into The Bloomberg Law Show every

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<v Speaker 1>weeknight at ten pm Wall Street Time. I'm June Grosso

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<v Speaker 1>and you're listening to Bloomberg