Was Passover A Militant Labor Dispute?

Photo Credit: The Church of Jesus Christ Latter-Day Saints

The prompt for this question is not a re-reading of the Hagadah— the Passover story. 
It is the rise of American labor militancy.

Earlier this week, 147 school districts in Indiana cancelled school when teachers walked out. Many were in Indianapolis to protest low salaries that start at $30,000. They’ve watched large-scale teacher walkouts in Oklahoma, Arizona, Kentucky, and West Virginia achieve good results for improving pay and preserving benefits.

When an occupation that is 78 percent female, and nearly 100% college educated, walk-off their jobs to protest, anything is possible for labor militancy.

That’s a special case, you say? 
Recently, Uber drivers in major cities had a coordinated shutdown of service by turning off their apps while they were sitting at airports. Lyft’s temporary surge in business was felt as something like a strike for Uber.

That brings me to the main story: A federal court imposed a $93 million judgment this week on the ILWU, otherwise known as the dockworkers’ union. Back in the day, however, they were known as Wobblies because of their radical bent.

The union has only $8 million, so its future is uncertain.

This all stems from a tiny labor dispute that got out of hand in Portland, Oregon. The port is unionized, but a warehouse opened on the property with another union representing those workers. The ILWU demanded that two jobs at the warehouse be represented by their union. Their demands were rejected.
Next, the ILWU refused to handle cargo to and from that warehouse. Over time, shippers lost confidence in the port. 
Eventually, the whole place shut down because the labor dispute chased away business.

Under a 1947 law (Taft-Hartley Act), unions are financially responsible for damages caused by “secondary boycotts.” 
A primary boycott occurs when a union stops working or calls for a boycott against its employer. In this case, the ILWU had no employees at the Portland warehouse, but they boycotted it illegally. Hence, it was a secondary boycott. 
And the teachers' walkouts are secondary actions, too. They aren't directed at their employer, a specific school district. No, they are aimed at another party (state legislatures).

Who cares, you say.

Well, most things we buy at the store (ahem, or via Amazon) come through a West Coast port—and all of them are ILWU-represented. If they cannot survive as a union, then chaos could erupt in one more ports. 
As someone who is sympathetic to labor, I’m just telling it straight: Those workers have a history of taking matters in their hands, if they feel threatened. That is not good for trade.

So what does this have to do with Passover?

Moses was a peaceful man— that is, until he witnessed an Egyptian slave master smiting a fellow Jew. Moses slew the slave master. He fled across the Red Sea to Midian, where he encountered The Angel of the Lord, speaking to him from within a burning bush on Mount Horeb. 
From there, Moses was directed to free the Jewish people.

The point is that when it comes to labor, people have a breaking point-- whether they are teachers, Uber drivers, dockworkers, or slaves. And when they reach a boil, upheaval often results.

Your Job May Involve a Quid Pro Quo

You might have a job. Some of you have a written employment contract. Most of you do not.

To make a little more sense of today’s impeachment proceedings, I offer an employment law case that roughly parallels our political discourse on quid pro quos and related.

Wayne Pugh worked for more than 30 for See’s Candies, a fresh-candy maker based in California. He rose from the bottom to Senior VP. 
He had no written contract. 
In the 1950s, the principal owner and CEO, Laurence See, had an oral agreement with all of his managerial employees: You have the same “for cause” employment security as our union-represented workers in the plant. 
The agreement was never rescinded or modified.

The meaning of “for cause” might not be clear to you— but to a See’s employee, this meant you wouldn’t be fired unless the Company had a good cause to terminate you. Now, granted, even that term is vague—but it means that there must be some justification given, and some due process to rebut an allegation of wrongdoing, before a See’s worker or manager could be fired.

Wayne Pugh was summoned to the CEO’s office one day in the late 1970s. 
Laurence See had long-since passed away. 
The-then CEO told Mr. Pugh to “look in the mirror” because he was being fired on the spot. He was given time to clean out his 30+ years of office possessions and was escorted off the property. 
(Pugh was fired because he uncovered and blew the whistle on a corrupt, under-the-table bribe from another VP to a union officer, in exchange for the union granting concessions to See's ... um, another quid pro quo in this story.)

Pugh sued, claiming he had an employment contract. 
See’s Candies said, “No. Pugh has no contract. A contract must be in writing.”

Any first year law student would tell you that the Company was right.

But Pugh won his case. The California Supreme Court said that Mr. See’s vague oral promise from the 1950s, backed by the authority of his office, and including lots of corroborating evidence that he meant what he said, all meant that Mr. Pugh was working on an “implied oral contract.” 
If you’re following along, that’s a bit of a contradiction—after all, a contract must be in writing!

But not when the oral exchange of understandings, backed by actual events, re-creates the actualities of a written contract.
Here, there was a quid pro quo: Be loyal to See’s—don’t quit and especially don’t work for our competitors. In return for your loyalty, we will forego our right to fire you at-will, and will preserve your job security, unless you give us good cause to fire you.

Whatever your political leanings, I hope this story helps to clarify what a quid pro quo is in the context of an agreement. It's not necessarily sinister: in fact, many quid pro quos are perfectly legitimate. 
It is a meeting of minds, where one benefit is exchanged for another benefit.

Do You Know Someone Over 40 Who Was Suddenly “Let Go”?

This is a common—and devastating—occurrence for many “older workers.” We address this question in tomorrow’s class. “Older workers” is in quotes because the U.S. has a law called the Older Worker Benefits Protection Act (OWBPA). It amends the Age Discrimination in Employment Act, a law that pertains to employees who are 40 years of age or more.

Perhaps you—or a friend, or parent, or spouse— has experienced the following: They show up for work, and have a good (or better work record), and they are suddenly told that this is their last day of employment. They are presented with a severance agreement, where they waive their right to sue for age discrimination or anything else (note: if there is no severance agreement presented to the employee, there may be age discrimination liability, but as you will see in a second, the OWBPA does not apply).

Take my friend, over 60 years old, as an example: A short time ago, he was called into a meeting around 2:00 p.m. He was told that his employer was “going in a different direction.” His email was cutoff while he was in the short meeting. He was given five minutes to clean out his desk.

You would think he did something wrong. Nope. This happens over and over again.

He was handed a severance agreement. He was asked to waive any claim to legal action in exchange for about three months of severance pay.

I looked it over. The agreement met OWBPA requirements. That did nothing to alleviate the shock and humiliation my friend and his wife experienced—including their sudden need to spend about $16,000 on new health insurance.

The OWBPA requires an employee to give a “knowing and voluntary” waiver of his or her right to sue.

Here are the elements of the law (I am summarizing):

(A)   the waiver is written in plain language

(B)    the waiver specifically states what rights are being waived, e.g., right to sue for discrimination;

(C)    the individual does not waive rights or claims that after the date the waiver is executed (e.g., if a person is in a defined benefit pension and qualifies, there is no waiver of the right to the pension);

(D)   the individual receives additional compensation, apart from accrued benefits (my friend received severance pay, and after some discussion, his accrued, unsued vacation pay);

(E)    the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F)    the individual is at least 21 days within which to consider the agreement and seven days after signing to rescind.

My friend’s experience was harsh but better than the cases that gave rise to the OWBPA. Employers presented employees with these waivers, and basically said if you want your pension or other accrued benefits, sign this waiver of your right to sue.

My friend was spared that coercion due to the this 1980s law. But like millions of employees since that time, he was likely terminated because his employer wanted to hire a younger employee for much less money.

And that brings the waiver back into focus. That is age discrimination. But my friend, like millions of people since the 1980s, waived his discrimination claim because he didn’t have resources or time to sue, and he was getting a severance payment.

Bribery and Impeachment: Why the Debate of September 8, 1787 Matters

Fact-based news outlets are reporting that Democrats are moving toward charging President Trump with the offense of bribery. Article II of the Constitution specifically enumerates bribery as an impeachable offense. 

This brief post makes no predictions. I’m simply taking you the Constitutional Convention. 

The minutes for these profound debates can be found in a Yale website called the Avalon Project (it is one of the most phenomenal web tools for research on the planet).

Here is the link for September 8, 1787 (https://avalon.law.yale.edu/18th_century/debates_908.asp). Let me republish the relevant part, without commentary. I’ll let you decide if this has significance or not.

***

The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up. 

Col. MASON. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration."

Mr. GERRY seconded him.

Mr. MADISON So vague a term will be equivalent to a tenure during pleasure of the Senate.

Mr. Govr. MORRIS, it will not be put in force & can do no harm. An election of every four years will prevent maladministration.

Col. MASON withdrew "maladministration" & substitutes "other high crimes & misdemesnors agst. the State"

On the question thus altered

N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. [FN13] Geo. ay. [FN14]

***

Mr. MADISON, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemesnor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

Mr. Govr. MORRIS thought no other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted. He was agst. a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.

Mr. PINKNEY disapproved of making the Senate the Court of Impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst. him, and under the influence of heat and faction throw him out of office.

Mr. WILLIAMSON thought there was more danger of too much lenity than [FN15] too much rigour towards the President, considering the number of cases in which the Senate was associated with the President.

Mr. SHERMAN regarded the Supreme Court as improper to try the President, because the Judges would be appointed by him.

On motion by Mr. MADISON to strike out the words-"by the Senate" after the word "conviction"

N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [FN16]

In the amendment of Col: Mason just agreed to, the word "State" after the words "misdemeanors against" was struck out, and the words "United States" inserted unanimously, [FN17] in order to remove ambiguity.

On the question to agree to [FN18] clause as amended,

N. H. ay. Mas. ay. Cont ay N. J. ay. Pa. no. Del ay Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN19]

On motion [FN20] "The vice-President and other Civil officers of the U. S. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments.

The clause of the report made on the 5th. [FN15] Sepr. & postponed was taken up, to wit-"All bills for raising revenue shall originate in the House of Representatives; and shall be subject to alterations and amendments by the Senate. No money shall be drawn from the Treasury but in consequence of appropriations made by law."

It was moved to strike out the words "and shall be subject to alterations and amendments by the Senate" and insert the words used in the Constitution of Massachussetts on the same subject- [FN21] "but the Senate may propose or concur with amendments as in other bills"-which was agreed too nem: con:

On the question On the first part of the clause-"All bills for raising revenue shall originate in the house of Representatives' [FN22]

N. H. ay. Mas. ay. Ct. ay. N. J. ay Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN24]

Mr. Govr. MORRIS moved to add to clause (3) [FN25] of the report made on Sepr. 4. [FN26] the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz-"The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath"

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [FN27]

Mr. GERRY repeated his motion above made on this day, in the form following "The Legislature shall have the sole right of establishing offices not herein [FN28] provided for," which was again negatived: Mas. Cont. & Geo. only being ay.

Mr. Me. HENRY observed that the President had not yet been any where authorised to convene the Senate, and moved to amend Art. X. sect. 2. by striking out the words "he may convene them [the Legislature] on extraordinary occasions" & insert "He may convene both or either of the Houses on extraordinary occasions." This he added would also provide for the case of the Senate being in Session at the time of convening the Legislature.

Mr. WILSON said he should vote agst. the motion, because it implied that the senate might be in Session, when the Legislature was not, which he thought improper.

On the question

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. ay
***
Here is the resulting language:

Impeachment

ttee of Impeachment Managers in the Senate Chamber, Washington, D.C.

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
— U.S. Constitution, Article II, section 4

A Shocking Dive Into White Power Music: Reflections from My Students

For my class on immigration, race, and labor, we are studying cultural forces that shape Trumpism, including the White Power Music genre. Skrewdriver (pictured here) is its most popular band.

I highlight comments from my students:

As I read the paper, I couldn’t help but be reminded of Burzum, one of the most influential metal artists of all time, who also happens to be a convicted murderer, arsonist, and known white supremacist.  While he didn’t make white power music, I couldn’t shake that comparison from my mind.  Equally shocking was how the white power music scene seemed to promote taking advantage of disenchanted youths.  I’d bet that a majority of teenagers have fallen back on some sort of music at some point to give themselves something to connect with. 

The idea of a teenager connecting with white power music and that being the soundtrack to their high school years is absolutely terrifying to me, as the music I listened to in high school definitely helped shape who I am today.  

I’d like to close my discussion of this paper with one last reaction: out of morbid curiosity, I decided to listen to one song by Skrewdriver so I could get a sense for what this scene sounded like.  What I heard was some of the most hateful, misanthropic punk music I have ever heard, with the white race portrayed as victimized by mass media in guttural yelps over furious, pummeling guitar chords.  I lasted two minutes before closing it, and the only words I could think to react with were the same words the Dead Kennedys had for Nazi punks.

One key mission of the Aryan movement is the involvement of young people in white supremacist organizations in order to increase membership and preserve the racist sentiments of the groups for the future. The article points to music from a cultural perspective as a way for pro- Aryan activists of all ages to unite and thus draft the next generation. 

Both intriguing and troubling in terms of this trend is a quotation from Bryon Calvert, who helped form the WPM record company Panzerfaust Records,

“. . . your average 14 or 15 year old kid that came across us by doing an Internet search, or because he saw a sticker or some friends of his told him about the label. And they go and they actually read the literature, they read the articles, they listen to the MP3s, they watch the music videos, they listen to what we’re saying, and it’s like they just soak it up” (Futrell 284).

This still remains a frightening thought today, both morally and physiologically. Not only is the music capable of exposing and drawing in young white people to the racist and characteristically violent ideology of white nationalism, it can help define their overall music taste for their lifetime. 

A growing number of psychological studies point to the middle teenage years as the time when musical influence is at its highest, and this is thought to be due to cerebral and hormonal development. According to a data analysis by Seth Stephens-Davidowitz from The New York Times on the subject, popular songs that were released when listeners were around fourteen years of age had a large effect on their music tastes later on; those who were young teenagers at the time of release continued to listen to those songs the most (1).

In terms of WPM, this musical influence not only reinforces a culture and creates feelings of unanimity and power for current members, it can draw in new ones as well. Though this music scene remains relatively small, it may still be present in future years.

“Senior Coffee” for “Senior Faculty”? Seein’-Your Age Bias

I pulled through McDonald’s drive-through and ordered a small coffee, black. When I got to the pay window, the high-school cashier cheerily said, “84 cents please for your senior coffee!” Nice. Then I pulled up to the food window. “Here’s your senior coffee!” Was my decrepit condition that obvious at the kiosk?

That wasn’t my first brush with ageism in the past week. Last Friday, a faculty visitor from another university opined, “I’d be careful about making a senior hire. Too many of these people retire soon after they arrive.”

Interesting he should say that. Eight years ago, his university called me to say they identified me as finalist for a “senior hire.” At the time, my School was openly considered for consolidation due to severe budgetary problems at UIUC. So, I interviewed at this major research university in the South.

Everything was going well. In the afternoon, I was given the usual tour around the campus and community. My host was the co-chair of the Search Committee. Like a crack of thunder from nowhere, she said, “How old are you?” “Huh,” I replied incredulously. I was interviewing at a law school! “I’m 54, why do you ask?” “Oh, well, sometimes our senior hires retire in a year or two to play more golf.” Dead silence the rest of the drive. (I don't golf.)

This post might seem like it’s about “PC” talk around age. Nope. It might seem to be a legal reminder. Nope.

It’s about how we hurt ourselves when we indulge in age bias. What do I mean?

My “senior wife” took about 30 4^th graders this week on a round-trip, four mile hike from her school to the State Farm Center to see a basketball exhibition game specially scheduled for school kids. The temperature was about 45 degrees. I knew she’d be fine.

Later that day, she greeted a soon-to-be-student teacher by saying, “If you take the assignment with me, get ready to be on your feet 80% of the time all day, like me.” “That’s a lot,” said the student. “I’m 61,” said my “senior wife”: “It’s the only way to do this job.” “Oh, I thought you were in your 40s.” (Good guess!)

Twice a month, I have breakfast with a young man who is in his 90s. Seriously, our conversations are the most engaging, fun, thought-provoking talks of my week. (Sorry to my “senior wife,” though our talks are really good.)

At our Y where we drag our “senior bodies” every work morning, dozens of “seniors” are with us between 5:30 and 7:00 jogging, running, walking briskly, swimming, or lifting weights. A few people have walkers, that’s true. They are working their tails off to get stronger and better every day. They’re total winners.

If seein’-your colleagues, neighbors, and friends causes you to stereotype them as old, the sad reality is that you might lose out: Someday you’ll be a senior but your stereotypes will translate into a host of I-can’t-because-I’m-old behaviors and handicaps. Life doesn’t end at 30 … or 40 … or 50 … or 60. It actually can get better.

Uber Duel This Friday

Prof. Wanjiru Njoya, Exeter University (U.K.), and I will be offering different perspectives on the uberization of work. The forum: A Conference called “The Changing Nature of Work and the Economics of Employment in the 21st Century,” hosted by George Mason University’s Scalia Law School in Fairfax, Virginia. Lawyers from 20-30 state attorney general offices are registered for the conference.

Prof. Njoya makes this argument: “Thus the paper is critical of the dominant perspectives of fairness and social justice underpinning the modern legal framework to the extent that they fail to recognize and appreciate the significance of economic liberty in human flourishing and substantive wellbeing, in particular ‘freedom of economic contract’ and the ‘freedoms of working’ including the ability to choose one’s own terms and conditions of work.”

Many Uber drivers would agree with Prof. Njoya, as would other “gig workers.”

I’ll counter by challenging Prof. Njoya’s “freedom” thesis. I’ll draw a parallel between exploitation of strippers and exploitation of Uber drivers. Here is a summary of the “stripper argument” I will present:

Sexual dancing uses a business model that heavily exploits performers. The work experience of Gabrielle Doe, a Ritz Club dancer, demonstrates this business model. Doe worked under a pseudonym because the club’s atmosphere degraded women. Other clubs use dancer vulnerabilities and fear to discourage challenges to conditions of work. Doe worked about fifty-five hours each week, but was never paid minimum wage or overtime. However, Ritz Club charged Doe a fee to come to work, another fee for music, another fee for DJ services, another fee for backstage access, and another fee for VIP access. The club levied fines when Doe was late to work, and another fine when she appeared late on stage. In a typical night, Doe paid the club $75 or more in fees and fines. In her lawsuit for unpaid wages, she alleged that the club’s pay system sometimes resulted in negative wages. Clubs usually avoid paying most workers—and paradoxically, require dancers to pay their co-workers. To illustrate, a male DJ sued his club because he was not paid wages and relied on dancers to pay him tips. This practice is common.

Michael H. LeRoy, “Bare Minimum: Stripping Pay for Independent Contractors in the Share Economy,” William & Mary Journal of Race, Gender, and Social Justice, Vol. 23 (2107), pp. 249-270, https://scholarship.law.wm.edu/wmjowl/vol23/iss2/5

I’ll then show a part of the Uber Arbitration Agreement that every driver must sign. My point is that like the strip club business model, the Uber model specifically provides for charging drivers, using the driver’s primary or backup credit card. Under certain conditions, this is known as wage theft.

It says, in part: “You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). Uber will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges or processing fees for split payments.

All Charges and payments will be enabled by Uber using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Uber may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by Uber.”

That’s freedom? Really?

I’ll close with this quote from the Nevada Supreme Court, which ruled that strippers are employees, not independent contractors (and therefore entitled to minimum wages and overtime, plus limits on “chargebacks” to the club):

Terry v. Sapphire Gentlemen’s Club, 336 P.3d 951, 959 (Nev. 2014) said it “is mindful that Sapphire’s supposed lack of control may actually reflect ‘a framework of false autonomy’ that gives performers ‘a coercive “choice” between accruing debt to the club or redrawing personal boundaries of consent and bodily integrity.’”

“A Warning”-- Is There a Right to Anonymous Speech?

The Trump administration has filed a lawsuit to learn the identity of … not the whistleblower, but the senior administration official who is set to publish, A Warning, under anonymous authorship.

Here is a brief recitation of the law in this area.

The Supreme Court of the United States has recognized that First Amendment protection extends to some anonymous speech. For example, there is McIntyre v. Ohio Elections Comm'n, (1995) (While “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind[,] ... [t]he freedom to publish anonymously extends beyond the literary realm.”). The Court said: “[A] decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible.” Whatever the motivation, “an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”

Other courts have agreed: Doe v. Cahill (Del.2005): “It [also] is clear that speech over the internet is entitled to First Amendment protection [and that] [t]his protection extends to anonymous internet speech.” The case cited Reno v. ACLU (1997) (“There is ‘no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”)

However, the Cahill court said: “‘it is well understood that the right of free speech is not absolute at all times and under all circumstances.’” “Certain classes of speech, including defamatory and libelous speech, are entitled to no Constitutional protection.” “‘It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’”

The right to “speak anonymously ... is not absolute. For example, an anonymous speaker, like a known one, has no First Amendment right to engage in ... libel....”

The precedents weigh in favor of publishing an anonymous account in A Warning.

One more point to consider: Our Constitution was promoted to the public in a series of editorials that we now call the Federalist Papers. The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the pseudonym “Publius” to promote the ratification of the United States Constitution.

The publications were controversial in their time because they advocated for a strong central government. A series of counter-arguments were published in the Anti-Federalist papers. 
These were authored over a number of years by several writers who used pen names—notably, “Brutus”— to remain anonymous. To this day, we do not definitively know their identity.

It would be supremely ironic if a court enjoined publication of “A Warning,” or in the alternative, forced the outing of the author’s name. This would betray our most consequential political debates, all of which were conducted under a cloak of anonymity.

Is Veganism a Religious Creed? The Case of the Anti-Vaxxer

Tomorrow, we discuss Jerold Daniel Friedman’s lost job offer for a pharmaceutical company. The firm required him to get a mumps vaccine, even though he worked in a warehouse and had no patient contact. Friedman had been a devoted vegan for nine years. As such, he could not use any animal product or byproduct, including the egg that is used in making a vaccination.

California law protects against religious discrimination. This includes “religious creed,” which is part of ‘“Religious creed,’ ‘religion,’ ‘religious observance,’ ‘religious belief,’ and ‘creed’ include all aspects of religious belief, observance, and practice.”

“Religious creed” is defined as: “‘Religious creed’ includes any traditionally recognized religion as well as beliefs, observations, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions.”

So what does this mean? The court used a long series of precedents that broadened religious creed beyond a theistic definition. It includes conscientious objectors to war, specifically to killing.

Here is the pivotal part of the court’s thinking:

First, plaintiff believes “that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals even for food, clothing and the testing of product safety for humans”; further, it is “a violation of natural law” to transgress this belief. There is no allegation or judicially noticeable evidence plaintiff’s belief system addresses fundamental or ultimate questions. There is no claim that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankind’s nature or its place in the universe; matters of human life and death; or the exercise of faith.   

While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.

Second, while plaintiff’s belief system governs his behavior in wide-ranging respects, including the food he eats, the clothes he wears, and the products he uses, it is not sufficiently comprehensive in nature to fall within the provisions of regulation 7293.1.

Plaintiff does not assert that his belief system derives from a power or being or faith to which all else is subordinate or upon which all else depends.

Third, though not determinative, no formal or external signs of a religion are present. There are no: teachers or leaders; services or ceremonies; structure or organization; orders of worship or articles of faith; or holidays.

What do you think?

If veganism was found to be a religious creed, the employer would have to consider a "reasonable accommodation." I don't believe there is a reasonable accommodation in this context.

But I disagree with the court’s reasoning. Veganism seems to be a comprehensive system of belief. It seems to address matters of fundamental importance in deciding one’s purpose in life. So what if it has no gregarious society or place of worship, such as a church. Conscientious objectors don’t either.

I welcome your thoughts on FB or at mhl@illinois.edu.