August 24, 2019

Tenth Circuit: No First Amendment Violation for Non-Mandatory Attendance Order

The Tenth Circuit Court of Appeals issued its opinion in Fields v. City of Tulsa on Thursday, May 22, 2014.

Paul Fields was a captain in the Tulsa, Oklahoma police department (TPD). At the time of the events in question, Captain Fields commanded 26 officers and five supervisors. The chain of command above him was Major Julie Harris, Deputy Chief Webster, and Chief Jordan. After the FBI reported a threat against Tulsa’s Islamic Society, TPD provided protection for the mosque and the school next door. The Society decided to host a “Law Enforcement Appreciation Day” on March 4, 2011, to thank law enforcement for its protection during the threat, and distributed a flyer offering refreshments, mosque tours, and presentations about Islam upon request. The event was not mandatory but RSVPs were requested. When there were no RSVPs by February 17, Major Harris forwarded an email from Webster ordering each shift to send two officers and a supervisor or commander to the event.

Fields responded with an email to his lawyer, Webster, Harris, Jordan, and several of his subordinates, indicating that he would not follow the directive to attend the event and that he felt the requirement to attend the Society event violated his civil rights. Webster responded the following day, noting that the Islamic Society was going to great pains to host the event, Fields was not himself required to attend because he could order his subordinates to attend, and if he continued with his refusal, Fields would be subject to discipline. Fields responded that he had conferred with his counsel and would not attend. He also refused to order subordinates to attend. He was then served with discipline papers transferring him to another division and stating that he would be investigated by TPD Internal Affairs.

Fields filed a complaint, naming Webster as the only defendant, but subsequently amended it to include the City of Tulsa and Chief Jordan. Fields alleged violations of his First Amendment right to free exercise of religion, the Establishment Clause, his right to free association, and the Equal Protection Clause. Fields sought damages, a declaration that his rights had been violated, an injunction prohibiting the enforcement of the policies that led to his punishment, and the expungement from his personnel file of all references to the incident. After some litigation, the district court granted summary judgment for defendants, and Fields appealed to the Tenth Circuit.

First, the Tenth Circuit evaluated Fields’ claim that defendants violated his right to free exercise of religion because of the attendance order. However, Fields was not personally required to attend the Society program — he could have ordered a subordinate to attend in his place — therefore his rights were not violated. Because the attendance order did not violate Fields’ right to free exercise of religion, he was rightly subjected to punishment for his refusal to comply with the attendance order: “An invalid religious objection to an order that does not burden your free exercise of religion does not immunize you from punishment for violation of the order.”

Next, the Tenth Circuit evaluated Fields’ Establishment Clause argument. Fields claimed that the attendance order constituted an official endorsement of Islam by TPD. But the Tenth Circuit responded that Fields’ interpretation was unreasonable given the history, purpose, and context of the order. The Tenth Circuit then analyzed Fields’ free association violation claims, and rejected them because the attendance order did not require Fields to associate with the Islamic Society; he was not required to attend at all. The Tenth Circuit likewise rejected Fields’ claim of violation of the Equal Protection Clause, noting that Fields raised essentially the same arguments for his free exercise claim.

The judgment of the district court was affirmed on all counts.

The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws

Qusair Mohamedbhia Bio PicBy Qusair Mohamedbhai

It is not every day that lawyers from the ACLU and Focus on the Family share a public stage to debate religious freedoms and workplace anti-discrimination laws. In recent years, tensions between employee anti-discrimination rights in the workplace and religious freedoms of employers have dramatically increased in magnitude and complexity. In the last decade, courts have significantly expanded the rights of religious employers. Additionally, religion-based discrimination charges filed with Equal Employment Opportunity Commission have more than doubled in the past fifteen years. And employees’ rights in the areas of sexual orientation and healthcare have been affected by employers claiming to be governed by faith-based principles.

“The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws,” which was part of a larger CLE in Colorado, Inc. program titled “Workplace Discrimination,” produced a lively and informative discussion. The presenters debated the tension between anti-discrimination laws including the Colorado Anti- Discrimination Act’s inclusion of sexual orientation as a protected class, and laws protecting religious employers’ rights including the Free Exercise Clause and Religious Freedom Restoration Act. As expected, the ACLU and Focus on the Family had divergent opinions on matters related to the contraceptive mandate issued by the U.S. Department of Health and Human Services and religious employer exemptions. The panelists also debated the holdings, reach, and implications of recent high-profile decisions spanning a variety of related topics including the cases of Hosanna-Tabor, Windsor, Hobby Lobby, Abercrombie & Fitch, Little Sisters of the Poor, and Masterpiece Cakeshop Lakewood Bakery. The presenters and moderator demonstrated extraordinary knowledge of these difficult constitutional law matters, as well as theological arguments, historical context, and pragmatic public policy consequences.

Click here to view online

Panelists: Mark Silverstein, Esq., American Civil Liberties Union of Colorado, L. Martin Nussbaum, Esq., Lewis Roca Rothgerber LLP, and Bruce Hausknecht, Esq., Focus on the Family. Moderator: Scott L. Levin, Esq., Regional Director, Mountain States Region, Anti-Defamation League.

Qusair Mohamedbhai, Esq., is a partner at Rathod | Mohamedbhai llc. His practice is exclusively in the areas of plaintiff’s employment discrimination and constitutional civil rights litigation. He advocates for the rights of employees in the workplace, and for the civil rights of all individuals against governmental and institutional abuses of power. He is a National Institute for Trial Advocacy trial skills and techniques faculty member, co-chair of the Employment Law Section for the Colorado Trial Lawyers Association, and General Counsel to the Colorado Muslim Society. He received his Bachelor of Science in biology from the University of Alberta in 2000, and his Juris Doctorate from the University of Wyoming in 2003.


CLE Homestudy: Workplace Discrimination

This CLE presentation took place on January 10, 2014. Click here to order the Video OnDemand, click here for the MP3 audio download, and click here for the CD homestudy. You may also call (303) 860-0608 to order.

Tenth Circuit: Summary Judgment for Prison Officials in RLUIPA Sweat Lodge Case Vacated

The Tenth Circuit Court of Appeals published its opinion in Yellowbear v. Lampert on Thursday, January 23, 2014.

Andrew Yellowbear is in a Wyoming prison for murdering his daughter. He is an enrolled member of the Northern Arapaho Tribe and seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison’s sweat lodge is located in the general prison yard and Yellowbear is housed in a special protective unit because of threats against him. Prison officials refused to allow his use of the sweat lodge, saying that the cost of providing the necessary security to take Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Yellowbear filed suit against prison officals and sought injunctive relief under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court entered summary judgment for the defendants.

The Tenth Circuit held that Yellowbear had satisfied his burden under RLUIPA to show his use of the sweat lodge would be a religious exercise motivated by sincere religious belief. He also met his summary judgment stage burden of showing the prison substantially burdened that exercise by prohibiting him from any access to the sweat lodge.

For the government to prevail, it had to show prohibiting access serves a compelling state interest and is the least restrictive means of furthering that interest in this case. The court found the government had not met its burden. It did not quantify the costs it would incur in providing security to take Yellowbear to and from the sweat lodge. Additionally, prison lockdowns already occurred daily for nonreligious reasons, such as transporting other specially housed inmates to the medical unit. The defendants did not address this evidence so the inference that the prison would not perform lockdowns for religious exercise because of a discriminatory reason was not countered.

The defendants also argued that granting Yellowbear’s request would lead to a flood of requests from other specially housed inmates but provided no information to back up that speculative claim.

The court held that the prison also failed to meet its burden of showing its policy of prohibiting Yellowbears’s access was the least restrictive means necessary to further its compelling interest. The prison did not demonstrate that Yellowbear’s suggested alternatives were ineffective in meeting the prison’s goals. Showing that he refused the prison’s suggested alternatives was not enough.

The court explained that its decision was made on the basis of absolutes (no access granted) at the summary judgment stage and that the relative strengths of the parties’ positions may change. The court vacated summary judgment for the defendants.

Tenth Circuit: Religious Accommodation Requires Employee Inform Employer of Belief and Need for Accommodation

The Tenth Circuit Court of Appeals published its opinion in EEOC v. Abercrombie & Fitch Stores, Inc. on Tuesday, October 1, 2013.

Abercrombie & Fitch (“Abercrombie”) appealed from the district court’s grant of summary judgment in favor of the Equal Employment Opportunity Commission (“EEOC”) and the court’s denial of summary judgment in favor of Abercrombie, on the EEOC’s claim that Abercrombie failed to provide a reasonable religious accommodation for a prospective employee, Samantha Elauf, in contravention of Title VII of the Civil Rights Act of 1964.

Elauf was friends with an employee at the Abercrombie store and asked her if wearing a hijab (a headscarf) to work would be permissible, as she wanted to apply for a job at that store. After asking an assistant manger about the hijab, the friend told Elauf it should not be a problem as long as the hijab was not black, as sales people were not allowed to wear black clothing as it conflicts with Abercrombie’s “Look Policy.”

A different assistant manager, Ms. Cooke, interviewed Elauf for the job and initially scored her high enough to have been hired. During the course of the interview, Elauf never informed Cooke that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie’s clothing policy. Cooke had seen Elauf in the store before wearing a hijab and assumed she wore it for religious reasons because she was Muslim, although she did not have actual knowledge. Cooke sought advice from the district manager about whether Elauf’s wearing a hijab would be a problem. He told Cooke not to hire her because wearing the hijab was inconsistent with the Look Policy.

A prima facie religion accommodation case “requires the employee to ‘show that (1) he or she had a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed his or her employer of this belief; and (3) he or she was fired [or not hired] for failure to comply with the conflicting employment requirement.’” The Tenth Circuit held that it was not enough that Abercrombie may have had notice; because Elauf had not explicitly informed Abercrombie before its hiring decision that her practice of wearing a hijab was based upon her religious beliefs and that she needed an accommodation for that practice, due to a conflict between it and Abercrombie’s clothing policy, she failed to make out a prima facie case.

The Tenth Circuit reversed the district court’s denial of summary judgment in favor of Abercrombie and reversed the district court’s grant of summary judgment to the EEOC. It remanded the case to the district court with instructions to vacate its judgment and enter judgment in favor of Abercrombie. Judge Ebel dissented from the grant of summary judgment to Abercrombie.