Monday, December 7, 2009

First Amendment Unemployment Compensation: Hobbie II

I received some criticism concerning my previous post, Hobbie I, via comments from Anonymous on the blog and an employment attorney via Twitter. First, I wish to thank both of them for their honest, fair, and most importantly civil critiques. Both of them raised good points and alternative takes on Hobbie.

Anonymous left comments on Hobbie I and my earlier post on Sherbert v. Verner. Anonymous provided a helpful distinction between an eligibility case (Sherbert, in which the state mandated availability on Saturdays) and a disqualification case (Hobbie, in which the statute denied benefits if the employee was at fault in her termination). Anonymous said:
"If the employer had a statutory duty to accommodate the religious views of the employee, then the employer is at fault, and the employee is entitled to benefits. For the STATE to then deny benefits would be a violation of the First Amendment."
The statutory duty to accommodate (not clear if Anonymous intended under federal or state law) would likely be a "reasonable accommodation" standard. This would lead to a middle-of-the-road approach in which the First Amendment would only be implicated based on the reasonableness of the accommodation. If the statute mandated accommodation of specific religious practices, you may also run into establishment clause problems (briefly addressed in Hobbie and Sherbert).

I also received a series of tweets (note that Twitter is a medium often involving short-hand):
  1. "It seems your view of Hobbie would require the court to hold religious observance = fault of employee."
  2. "There are many situations were Ee's refusal to comply w/ Emplyr requirement does not = fault."
  3. "If a law defines as fault conduct protected by First Amendment the statute is unconstitutional."
All valid points. Particularly, 1 and 3 implicate the statutory definition of "fault" - a clear state action. While 2 is unquestionably true, I see no reason why the First Amendment mandates that refusal to comply with a private employer's requirements is excused for religious observance.

2 and 3 more clearly cut to the point of the Hobbie holding and I certainly see that as a plausible First Amendment-state action-Constitutional violation... but the tweets ignore the employer as the middle-man. The law does not define "fault" as "religious observance" or any other First Amendment-protected activity.

The statute in Hobbie defined "misconduct" (under which claimant was disqualified for benefits) as the violation of the private employer's standards. The statute is religion-neutral with no preference given to any religion nor any take on whether religion is or is not an excuse for violating an employer's rules. There is no conflict between the statute and the claimant's religious practices. Even at the employer-level, the employee in Hobbie was terminated for failing to work her scheduled shift, not for her religious beliefs or observances.

Yes, I see that the practical effect is the same - she didn't work on Saturdays because of her religion which led to her termination which led to her denial of benefits. Perhaps this indirect effect is enough to constitute a First Amendment violation (obviously it is based on the holding). I would like to have read some justification for this transfer from direct infringement of the claimant's religious observance in Sherbert, to the indirect infringement at issue in Hobbie.

Instead, all I got was a conclusory statement that "no meaningful distinction" exists. The distinction may not be "meaningful" (as in changing the outcome) but it undeniably exists and went un-addressed. I don't want to show my hand too much until I write the full post, but I will note that government delegation of First Amendment issues to private parties has proven determinative in at least one major Supreme Court decision.

Thanks again for the feedback. As always, readers are welcome to comment, reach me via Twitter (@philipmiles), or comment on the Facebook fan page.

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