Muslim flight attendant sues over serving alcohol on flights

[UEL]

I am confused why she needs accommodation.

It is consuming alcohol that is against her religion (given that she is not a very small splinter sect). Serving alcohol is not a problem.

Just like Christians not serving same-sex couples. Nothing in religion says that it is a sin.

So, I don't see why the airline should have been mandated to accommodate her. They did what they thought appropriate. If she could make an arrangement, fine.

But her arrangement fell through. And as such, did not work.

From my read, her accommodation is not necessary.

[Seaboe Muffinchucker]

Necessary isn't the standard, UEL. All she needs is religious reasons for the request, not a religious requirement.

However, the accommodation need only be reasonable, and it's not reasonable to require the airline to hire someone else or create a special version of the job just for her. Also, the accommodation process is supposed to be a dialog. The employee can't usually say "this is the accommodation you have to give me and I won't accept anything else", especially if the employer offers an alternative that would work.

Seaboe

[Sue]

It's also not reasonable to place an undue burden on other employees. In this specific case it sounds like they expected other employees to voluntarily change the way they do their jobs even if that might make their jobs harder, or at least more complicated. Either you are asking others to do you a favour, which means they get to say no (otherwise it's not a favour) or you are compelling others to alter their work to suit you in which case that's not voluntary and it's still not an accommodation.

[Lainie]

She's not suing a co-worker for saying no when she asked for a favor, though. It's possible the co-worker said yes to the favor and then filed the complaint, but that wouldn't be the plaintiff's fault.

ETA: I haven't seen any indication that the complaining co-worker was ever at risk of being punished for not agreeing to the favor.

[erwins]

Originally Posted by UEL

I am confused why she needs accommodation.

It is consuming alcohol that is against her religion (given that she is not a very small splinter sect). Serving alcohol is not a problem.

Just like Christians not serving same-sex couples. Nothing in religion says that it is a sin.

So, I don't see why the airline should have been mandated to accommodate her. They did what they thought appropriate. If she could make an arrangement, fine.

But her arrangement fell through. And as such, did not work.

From my read, her accommodation is not necessary.

Is this a difference between Canadian and US law? In the US, any sincerely held religious belief or practice must be accommodated if doing so would not place an undue burden on the employer. (Undue burden is a pretty low standard, so if it is more than minimally burdensome, accommodation is not required). The belief or practice can be new or not broadly practiced within the religion, and need not even be observed all the time. A person can be the only practitioner of their belief; as long as it is sincerely held and religious it can require accommodation.

There is no standard that a belief has to be mainstream, or sanctioned by authorities within the person's stated religion. In theory, you could use evidence like that perhaps to try to prove that a person was making up a sham belief to get out of part of their job, and that it was not a sincerely held religious belief, but it would be very hard to prove, given the legal standard. I think very very few cases are defended on that basis.

(I'm reminded of a plot in Orange is the New Black, which takes place in a women's prison. Spoilers..... At one point, some prisoners start claiming to be Jewish and saying they need kosher meals, because those meals are better. The claims were not originally based on sincerely held beliefs, but in the process of studying to be able to back up her claim of being Jewish, one of the prisoners becomes a sincere believer and converts.)

There is not much--or any-- difference that you could see from the outside between a person making a sham claim and a person making a sincere claim based on a new, newly adopted, or completely individualized religious belief. And a person who is only sporadically observant may even seem to an outside observer to be less sincere than someone making a sham claim, but the sporadically observant person is entitled to accommodation if it is not unduly burdensome.

[overyonder]

So what does a Jewish flight attendant do if he/she has to serve pork as part of the in flight meal (when there is such)?

OY

[GenYus234]

They use their left hand.

[WildaBeast]

Originally Posted by overyonder

So what does a Jewish flight attendant do if he/she has to serve pork as part of the in flight meal (when there is such)?

OY

You know, I'm not sure I've ever seen an airline serve a meal containing pork. I know anecdote != data and all that, but I wonder if they purposely avoid pork because more than one religion objects to it.

ETA: Ok, it looks like on domestic flights with food for purchase the menu does include sandwiches that contain ham. But I've never seen it on long haul flights with complementary meals.

[Dr. Dave]

Generally speaking, the Halacha (Jewish law) is not to eat pork, nothing about handling a tray with it on it. There are some foods (e.g. milk and meat together) that we are not supposed to derive benefit from, but it would take a psak (ruling from a Rabbi) on whether being paid to serve, but not being the owner of the food (i.e. not a restaurant owner) is considered deriving benefit. We are also not supposed to enable another Jew to violate Halacha, so I guess one whose job involves serving pork would be concerned that they would be serving a non-observant Jewish customer, or even someone who is Jewish by Halacha but does not consider themselves Jewish (say one grandparent is Jewish and it happens to be the maternal grandmother.)

So, anyway, that is an overly complicated answer which demonstrates that some would want to avoid it and some would not bother, but also none of that matters in the U.S. for the reason explained by erwins,

Either the service is a fundamental part of the job or it is not, and the necessary accomodation is an undue burden or it is not. One of the reasons to go to a judge is to have him or her decide on the second question, and I guess the first questions, but he or she will not be deciding if Muslims can touch or serve wine.

Unless your question was "Has the airline ever more fully accommodated another religious person with a similar request?" and the Jew/pork was an example.

ETA: Years ago (decades really) when full breakfast was served, there was sausage and the like. I think with the optional box lunches you can buy, there is still a ham sandwich. But I am probably not the best to say considering I fly about once a year and eat ham approximately zero times a year

[overyonder]

Originally Posted by WildaBeast

You know, I'm not sure I've ever seen an airline serve a meal containing pork. I know anecdote != data and all that, but I wonder if they purposely avoid pork because more than one religion objects to it.

I've been served pork sausages in some breakfasts I had on domestic flights, when I was upgraded to first class (via status). That's why that came to mind.

OY

[thorny locust]

1) If there's generally only one flight attendant on the flights she's expected to serve on, then I don't see how they can reasonably accommodate her, other than possibly by moving her to another job entirely. So in that case I wouldn't expect them to have to.

2) However, if there's generally only one flight attendant on the flights she's expected to serve on, how is it that there's another person that she tried to work out accommodation with (but who appears to have been prejudiced), as well as from the sound of it other people who she was successful in working our accommodation with? I don't see how either of those things could have happened if she were the only person in the position on the flight; there'd be nobody to negotiate with. And it would make no sense whatsoever for the airline to have told her to work it out with coworkers if she hasn't got any.

[Seaboe Muffinchucker]

Originally Posted by thorny locust

1) If there's generally only one flight attendant on the flights she's expected to serve on, then I don't see how they can reasonably accommodate her, other than possibly by moving her to another job entirely. So in that case I wouldn't expect them to have to.

If they can shift her so that she works on larger planes, or on flights too short for regular beverage service, without having to move another employee, that is a valid accommodation. If the other job entirely exists, and has an opening, than it is a valid accommodation.

Seaboe

[thorny locust]

Ah.

But if they told her that she'd just have to work it out with other employees, that sounds as if she was already working flights with multiple flight attendants.

I suppose it's possible that they told her they'd accommodate her as far as changing her schedule, but that she'd have to take it from there by herself. That seems an odd sort of halfhearted way to deal with it, though; neither one thing nor the other.

[WildaBeast]

Yeah, I wonder if the accommodation she asked for was to change her schedule so that she would only have to work on the larger planes with two flight attendants. As I said before schedules at airlines are usually based on seniority, so I wonder if some of her coworkers were upset that she would get a better schedule that someone at her seniority level wouldn't typically get.

[GenYus234]

According to Wikipedia, ExpressJet has 237 single flight attendant jets and 69 dual flight attendant jets. So just over 1/3 of their flight attendants would be on dual flights. No idea what turnover is, but I've heard that regional airlines like that don't keep people for long as they are used as stepping stones. It is possible that her 3 years experience was enough seniority to put her on the top 1/3 anyway.

[Esprise Me]

If union rules dictate that scheduling requests be granted according to seniority, the airline may not be able to give her the schedule she wants. I had to research this issue once, and US law is all over the place as far as whether reasonable accommodations trump union rules and when.

[thorny locust]

I wonder whether the larger or the smaller flights are considered preferable?

I don't know enough about the job to be able to tell. Having help is generally preferable; but if a job more than twice as large is being divided into two, it might be preferred to be on the smaller ones. Also, the layout of the planes may make a difference; so may the particular airports each tends to stop at.

[UEL]

Originally Posted by erwins

Is this a difference between Canadian and US law?

This could very well be.

As far as I have experienced in Canada, an individual's belief is not sufficient (eg an individual's sincerely held belief in their interpretation of the Bible will not survive a challenge if the "reasonable observer" does not agree to that interpretation.

So, as such, if this flight attendant's disagreement on serving alcohol is her own personally held belief, it might very well fail the test.

But, to be completely honest, I am not a lawyer challenging this in court.

[urbanlegendfanatic]

I'd be interested in knowing how many people who are supporting the airline stewardess also support Kim Davis (who wouldn't marry gays) or those cake decorators who wouldn't sell cakes for gay weddings. There's no difference other than the religion - in both cases you want to get paid for a job you won't do because your religion won't let you.

[Esprise Me]

Actually, after 30 seconds of Google research (so I'm now totally qualified on this subject!), I'm thinking Canadian law in this area is pretty similar to U.S. law, and the union seniority requirement may not be a barrier to granting this employee's request:

The duty to accommodate creed beliefs and practices

Section 11 of the Code prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but have an adverse effect on people identified by Code grounds. This is known as “constructive” or “adverse effect” discrimination. Constructive or adverse effect discrimination violates the Code unless the requirement, qualification or factor is reasonable and bona fide in the circumstances, and cannot be accommodated short of undue hardship.

Employers, service providers, unions and housing providers have a legal duty to accommodate people’s beliefs and practices to the point of undue hardship where these are:

-Adversely affected by a standard, rule or requirement of the organization
-Sincerely (honestly) held
-Connected to a creed.

For creed protections, a person’s creed belief needs only to be sincerely held. The focus is on the person’s sincerely held personal or subjective understanding of their creed. They do not need to show that their belief is an essential or obligatory element of their creed, or that it is recognized by others of the same creed (including religious officials).

Not every adverse impact on a person’s creed may be discrimination under the Code. Interference with creed practices or beliefs that are only marginally significant or peripherally connected to a person's creed may not necessarily receive protection. For example, not being able to take part in volunteer activities at a church or take part in other social activities connected to a religion or creed, due to work-related obligations, have been found to not necessarily violate creed rights under the Code.

Determining whether or not a creed right has been engaged can sometimes require sensitive forms of inquiry into a person’s creed belief or practice, where this is relevant to assessing accommodation needs. As a general rule, accommodation providers should:

-Take requests for accommodation in good faith (unless there is evidence the request is not genuine)
-Limit requests for information to those reasonably related to establish the existence of rights and duties, assess needs, limitations or restrictions, and make the accommodation
-Make sure that information related to accommodation is kept confidential and shared only with people who need the information to put the accommodation in place.

Asking about a person's sincerity of belief, where there is a legitimate reason to doubt this, should be as limited as possible. It need only establish that an asserted creed belief is “in good faith, neither fictitious nor capricious, and that it is not an artifice” (Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at para. 52). Organizations may also sometimes need to evaluate objective evidence to decide whether a belief is in fact connected to a creed, or that a requirement, rule or practice actually negatively affects a person based on their creed.

Fulfilling the duty to accommodate requires that the most appropriate accommodation be determined and provided, short of undue hardship. The most appropriate accommodation is the one that most:

-Respects dignity (including autonomy, comfort, and confidentiality)
-Responds to a person’s individualized needs
-Allows for integration and full participation.
Inclusive design (design with everyone in mind) that removes barriers up front is a preferred approach to removing barriers after they become apparent, or making “one-off” accommodations. The one-off approach assumes that existing structures are fine or only need slight modifications to make them acceptable. The Supreme Court of Canada has affirmed organizations’ obligations to be aware of differences between individuals and groups, including based on creed, and wherever possible to build in concepts of equality into standards, rules or requirements.

The duty to accommodate is about more than providing the most appropriate accommodation in the circumstances (the substantive component). It is also about engaging in a meaningful, good-faith process to assess needs and find appropriate solutions (the procedural component). Failing to carry out either component appropriately may be discriminatory.

Everyone involved in the accommodation process has a duty to cooperate to the best of their ability. While the accommodation provider is ultimately responsible for putting in place solutions and leading the process, persons seeking accommodation must cooperate in the process. In some cases, an organization may have fulfilled its duty to accommodate because the person may not have taken part in the process.

Specific cases and issues
This policy provides individuals and organizations with specific guidance about rights and responsibilities for accommodating:

-Indigenous spiritual practices
-Creed-based holidays, leaves and ritual observances
-Dress codes and appearance rules and standards
-Displaying religious or creed-based symbols
-Photos and biometrics
-Food restrictions
-Exemptions from activities that adversely affect a person’s creed
-Creed issues in recruitment and hiring.

Limits and defences

Human rights protections for creed do not extend to practices and observances that are hateful or incite hatred or violence against other individuals or groups, or contravene criminal law. The duty to accommodate creed beliefs and practices may also be limited where it:

-Causes undue hardship for an organization, considering factors of cost and of health and safety
-Interferes with the rights of others under the Code or Charter
-Announces an intention to discriminate in a social area as prohibited under section 13 of the Code.

The OHRC's Policy on competing rights provides organizations with a framework for making sure that rights are appropriately balanced when they conflict with one another. The framework follows several key principles including that no right is absolute (all rights may be limited where they interfere with the rights of others), and there is no hierarchy of rights.

The duty to accommodate people's creed beliefs and practices should not be limited or denied because of such factors as the impact on employee morale, third-party preferences, business inconvenience, or collective agreements or contractual terms. The duty to accommodate also is not negated simply because a person or organization thinks a belief or practice is unreasonable or objectionable, or because an organization operates in the secular public sphere. The Supreme Court of Canada has said that a secular state respects and accommodates religious differences, instead of trying to extinguish them.

Bolding mine. Quoted from http://www.ohrc.on.ca/en/policy-prev...on-based-creed