A New York appellate court has just upheld — against an Establishment Clause challenge — an employment contract under which a public school district provided up to three paid days for an employee’s religious observance, apparently for any “Sabbath or other holy day” observed as a “requirement” of an employee’s religion. The case is In re Main-Endwell Teachers’ Ass’n v. Bd. of Ed., 2003 WL 23163126 (N.Y. App. Div. Jan. 15).
Now if the school district wanted to give three extra personal leave days that religious people could use for their holidays, that would of course be fine. But this requirement means that religious employees (or, to be precise, religious employees whose religions require holy days that aren’t part of the standard holiday set) get paid the same as nonreligious ones, but have to work three fewer days per year. Seems like pretty serious discrimination against nonreligious employees. If the Establishment Clause is interpreted, as the Court has suggested, as mandating neutrality towards religion, this seems to be a violation; and in any event, constitutional or not, it seems quite unfair, and in my view likely a violation of statutory bans on religious discrimination.
Nor is this just a normal religious accommodation, such as letting employees get their holidays off without pay, rather than forcing them to quit or violate their felt religious obligations. There are certainly discrimination problems with those accommodations (consider the employee who wants Saturdays off for religious reasons, and the employee who wants Saturdays off to spend with his children), but at least they’re (1) mitigated by the fact that the employee will presumably have to make up the lost time on some other day, and (2) justified by the concern that otherwise the employee might be out of a job. Here, the religious employee gets the day off and ends up getting paid for it, while the nonreligious employee must work to get his pay. And the paid leave policy isn’t needed to prevent the employee from being out of a job; an unpaid leave policy would suffice for that.
If a government employer put out a sign saying “Now hiring; religious employees, $40/hour, atheist and agnostic employees, $39.50/hour,” this would be clear religious discrimination, a violation of Title VII, and, I think, of the Establishment Clause. The policy here, of giving 3 paid days off out of about 240 to religious employees, and not to atheist and agnostic employees (and, as I said, to the employees of those religions that don’t mandate days of worship), seems to be just the same.
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