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National Clothesline
National Clothesline
Hobby Lobby and religious conflict
It’s summertime, and the Supreme Court is in recess until October.
Before going on recess, it decided a case called Hobby Lobby, recognizing a closely held
corporation’s right to adhere to its religious beliefs. The particular question was whether the
contraceptive mandate in the Affordable Care Act, also known as Obamacare, could be imposed
on an employer whose religious views conflicted with that mandate. A closely held corporation is
typically one with only a couple of shareholders.
While the Court has been pilloried for being
against women, the case actually turned on a
law signed by President Bill Clinton, which gave
employers with religious views the right to
adhere to them.
As a labor and employment lawyer, I am
more interested in the Hobby Lobby case
because it sets up potential conflict between
employers and employees with differing
religious views.
As you probably know, under Title VII of the Civil Rights Act of 1964, religious discrimination
is prohibited, and employers must make reasonable accommodations to employee’s religious
beliefs. In addition, many jurisdictions now prohibit discrimination based on gender identity and
sexual orientation, and these laws can present dilemmas to employers and employees whose
religion frowns upon certain practices.
In a case decided several years ago, a corporation was found to have violated an employee’s
religious beliefs by requiring him to sign a “tolerance statement.”
Some of the things he was being asked to tolerate violated his legitimately held religious
beliefs. I expect there to more litigation in this area, as employers must balance ‚Äčtheir obligation
to accommodate with their obligation not to discriminate.
The Supreme Court also held at the end of this term that President Obama’s recess
appointments to the National Labor Relations Board were unconstitutional.
On the day I am writing this column, the President announced that he intends to reappoint at
least one of the individuals whose recess appointment was found improper.
I am not concerned about the constitutional question, but the person he intends to reappoint
is one of the Board members who appears to be stridently anti-employer. Because the Senate
still has a majority of Democrats, she is likely to be confirmed. Therefore, I expect the NLRB will
continue to be a thorn in the side of employers throughout the United States. Despite numerous
setbacks, the labor agenda is alive and well.
This is especially troubling because the NLRB continues to knock down company policies
promoting civility. As I have said in this column previously, the NLRB believes that if the
employee is exercising rights protected under the National Labor Relations Act, he or she cannot
be penalized just because raw, disrespectful language is used in the process.
I wonder if the First Amendment protects my right to assert that the NLRB is FUBAR.
Several federal courts have, through judicial fiat, established a four-month after pregnancy
extension of the pregnancy discrimination laws. In a case decided in New York, a court found
that an employee could pursue her claim that a denial of promotion within the four months after
she delivered her child could still be pregnancy discrimination.
I have no particular quarrel with an employee who can establish that her pregnancy was a
factor in a post-pregnancy decision, but setting up a four-month rule makes no particular sense.
Why not three or five months?
Just keep in mind that after an employee returns from a pregnancy leave, she still may be
able to contend that post-return decisions against her were motivated by her pregnancy and her
pregnancy leave. The FMLA may also be a factor.
Finally, I would like to take a few minutes to talk about the government. We read all the time
about government misconduct, especially by prosecutors. It has been my experience that many
government lawyers want to win at all cost, and they will do whatever it takes to win, including
taking outrageous legal positions.
In addition, the government either covers up its misconduct (recent reports about the IRS
losing emails of critical witnesses involved in a government investigation of IRS abuse are very
troubling) or asks for more tax money to address the problem. If one of my clients makes a
mistake, the government comes down on it hard; the government, however, does not apply the
same standard to itself.
I am constantly confronted with decisions on whether to cooperate with the government. If
you cooperate and still get sued or fined, you feel foolish. If you do not cooperate, and the
government seemingly comes down harder on the client, you wonder whether you made the
correct decision.
In retrospect, I still think that the best approach for dealing with the government is a firm
“no” whenever possible. Give the government what helps your case, and try to avoid giving the
government what does not.
Obviously, there are differences between civil and criminal investigations, but this is generally
the best approach in a civil investigation; total noncooperation may be the best approach in a
criminal investigation, especially if there are serious concerns about criminal liability.
I know this has been a hodgepodge of law-related stuff, but it is, after all, summer. I hope
yours is been pleasant and lawyer-free.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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