Veganism A Religion? It Depends.

Veganism A Religion? It Depends.
by Darrell R. VanDeusen

A few years ago, it was widely reported that a California Regional office of the Equal Employment Opportunity Commission (EEOC) found probable cause to believe that the Orange County Transit Authority (OCTA) engaged in religious discrimination when it fired an insubordinate "vegetarian" bus driver who refused to hand out free hamburger coupons.^[1] As a promotion, the OCTA had its drivers hand out coupons to riders for a free hamburger at a local restaurant. One of the drivers, Anderson, refused to do so, claiming that he held strong moral and ethical beliefs that prohibited him from personally handing out coupons for the free burgers. This refusal led to Anderson's discharge.

Anderson, you see, was a vegan. Veganism is more than vegetarianism. Vegans eat no animal products. They do not wear clothes made from animals. They use only items that are not tested on animals and are free of animal products. Anderson claimed that this moral and ethical belief was sufficient to bring him within the protections of Title VII's prohibition against religious discrimination. Relying upon it's 1980 Guidance,^[2] the EEOC agreed, finding that veganism was sufficient to be "religious" because Anderson's moral or ethical beliefs as to what was right and wrong were sincerely held with the strength of traditional religious views.

At the time, many employment lawyers thought this decision was unusual, to put it mildly. Anderson wasn't asked to eat the burgers, touch the burgers, or do anything at all with any animal product. He simply had to hand out the coupons, which were made of paper. Yet, according to the EEOC, he could refuse to do so – thereby denying passengers on his bus chance to participate in the promotion – as a reasonable accommodation to his vegan beliefs. Sanctioning insubordination made little sense. But it did happen in California, a state whose residents have a reputation for sporting unique views of the world. Besides, how often would a case like this come up?

Apparently, more often than one might think. A California appellate court recently addressed the question of veganism as a religion, this time holding that the moral and ethical belief system does not constitute a "religious creed" under the state's Fair Employment and Housing Act (FEHA).^[3] In Friedman v. Southern California Permanente Medical Group,^[4] the California Court of Appeals embarked on an extraordinarily detailed analysis of the circumstances in which non-traditional beliefs may fall within the definition of religious creed.

The Facts of Friedman.

Jerold Friedman worked for a temporary agency and was assigned to do computer work at a Kaiser Permanente pharmaceutical warehouse. In this assignment he did not have contact with any patients. Pleased with his work, Kaiser offered him employment with the Medical Group. One of the requirements for the job was that he get a mumps vaccine. Friedman refused to be vaccinated because he is vegan, and the mumps vaccine is grown in chicken embryos. He was not hired.

Friedman sued, claiming that he was discriminated against based on his religious creed – veganism. According to his complaint, Friedman "fervently 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, and that such use is a violation of natural law and the personal religious tenets on which [he] bases his foundational creeds." Friedman averred that he does not eat meat, dairy, eggs, or honey, does not wear leather or silk, and does not use any products that have been tested on animals or contain ingredients derived from animals. He further claimed that he has lived in accordance with these beliefs for more than nine years and had been arrested for civil disobedience at animal rights demonstrations. The Superior Court granted Kaiser's motion to dismiss Friedman's claims, holding that veganism is not a religious creed within the meaning of the FEHA. Friedman appealed.^[5]

Veganism as a Religious Creed.

The California Court of Appeals seriously pondered whether veganism is a religious creed under the FEHA. Indeed, what makes this decision noteworthy is the detailed analysis it provides on the differing definitions of religion. The Court was writing on a clean slate regarding the FEHA and it went to great lengths to address the issue in a logical, even-handed manner.

After reviewing other California cases, the Court stressed that the "decisions point away from a strictly theistic definition of religion. A belief in a supreme being is not required. . . .But, something more than a philosophy or way of life is required."^[6] The inquiry is "a purely objective one",^[7] said the Court, stressing that among the factors to be considered are "whether the belief system occupies in a person's life a place parallel to that of God in recognized religions and whether it addresses ultimate concerns thereby filling a void in the individual's life."^[8]

Turning to Federal cases, the Court analyzed the development of the more expansive definition of religion by the Supreme Court in United States v. Seeger,^[9] and Welsh v. United States,^[10] two cases involving conscientious objection to military service, and Wisconsin v. Yoder,^[11] a case involving objections by Amish parents to sending their children to public schools beyond the eighth grade. From these cases came the conclusion that philosophical and personal belief is not enough to fall within the Constitutional protection of religion: it must be more than a "way of life."

The Court looked to Title VII cases and noted the difference in the language of Title VII's definition of religion ("all aspects of religious observance and practice, as well as belief. . ."^[12]) and the FEHA regulation's definition of "religious creed" ("any traditionally recognized religion as well as beliefs, observances, 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"^[13]). Analyzing the inclusion of non- traditional "religions" under the broad definition provided by the EEOC's regulations, the Court noted, by example, that in Peterson v. Wilmur Communications, Inc.,^[14] the court held on summary judgment that the World Church of the Creator – a central tenet of which is white supremacy – qualified as a religion under Title VII.

The Court then looked to other Federal cases that have dealt with non- traditional "religions" in areas other than employment.^[15] Many of these were prisoner cases involving requests for special diets or treatment based on an alleged religious belief. From these cases, the Court found that federal appellate courts have taken a less expansive approach than the EEOC's regulations. The Court found only one vegan case, Spies v. Voinovich,^[16] where a prisoner claimed that his Zen Buddhism required that he maintain a vegan diet. The Sixth Circuit rejected this claim, holding that Zen Buddhism did not require a vegan diet and that a vegetarian diet provided at the prison sufficed. The Sixth Circuit noted, however, that "we are not saying that Spies's veganism is not a sincerely held religious belief."^[17]

Assessing all of these cases and issues, the Court determined that the FEHA's protection of religious creed, cannot be construed as broadly as Title VII's definition of religion. Moreover, the EEOC's regulation defining religion goes further than the Supreme Court did in Seeger and Welsh. Adopting the approach taken by federal appellate courts, the Court announced three guidelines to distinguish between a religion and a secular belief system:

"First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.
"Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching.
"Third, a religion often can be recognized by the presence of certain formal and external signs."^[18]

Under this framework, Friedman's veganism was deemed a personal philosophy, not within the scope of a "religious creed" under the FEHA.

Religion Claims in the Workplace.

Friedman lost his claim, not because it was considered frivolous, but because serious consideration of the specific language of the California law was deemed not to apply in his circumstance. Had Friedman brought his claim under Title VII, there probably would have been a different result. The lesson: employers are well advised to suspend their incredulity when an applicant or employee requests accommodation due to claimed religious beliefs.

Unless, by way of example, the individual wants to leave work at 2:00 p.m. every Friday to take communion at his local pub, "Our Lady of Budweiser," serious consideration should be given to the request. Analyzed on a case by case basis, it is often better for the employer to determine whether the requested accommodation is reasonable than to fight the battle over whether the claimed religion will pass muster under Title VII. Because, it appears, it usually will.

^[1] Anderson v. Orange County Transit Authority (EEOC, San Diego, No. 345960598, 8/20/96). In an additional test of EEOC guidelines on strongly held ethical or moral beliefs, Anderson also sued the OCTA in Orange County Superior Court. (Anderson v. OCTA, Calif Super Ct, No. 765255, 6/17/96). See BNA Daily Lab. Reptr. No. 168 (August 29, 1996).

^[2] 29 C.F.R. § 1605.1 provides: "In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970). The Commission has consistently applied this standard in its decisions. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase 'religious practice' as used in these Guidelines includes both religious observances and practices, as stated in section 701(j), 42 U.S.C. § 2000e(j)."

^[3] Cal. Gov't Code § 12940.

^[4] ___ Cal. App. 2d ___, ___ P.2d ___ (September 13, 2002).

^[5] Id.

^[6] ___ Cal. App. 2d at ___, ___ P.2d at ___ (citing, St. Germain Found. v. County of Siskiyou, 212 Cal. App.2d 911, 916 (1963); Fellowship of Humanity v. Co. Alameda, 153 Cal. Ap.2d 673, 692 (1957); and Smith v. Fair Employment & Housing Com., 12 Cal.4th 1143, 1166 (1996).

^[7] Fellowship of Humanity v. Co. Alameda, 153 Cal. Ap.2d at 692.

^[8]___ Cal. App. 2d at ___, ___ P.2d at ___.

^[9] 380 U.S. 163 (1965).

^[10] 398 U.S. 333 (1970).

^[11] 406 U.S. 205 (1972).

^[12] 42 U.S.C. § 2000e(j).

^[13] Cal. Code of Reg.,Title 2, § 7293.1.

^[14] 205 F. Supp. 2d 1014 (E.D. Wis. 2002)

^[15] See, e.g., Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979); Africa v. Com. of Pa., 662 F.2d 1025 (3d Cir. 1981); Wiggins v. Sargent, 753 F. 2d 663 (8th Cir. 1985); Alvarado v. City of San Jose, 94 F. 3d 1223 (9th Cir. 1996); United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996).

^[16] 173 F.3d 398 (6th Cir. 1999).

^[17] Id. at 407.

^[18] ___ Cal. App. 2d at ___, ___ P.2d at __ (quoting Africa v. Com. of Pa., 662 F.2d at 1032, n. omitted).

Reprinted by permission from Matthew Bender's "Labor and Employment Bulletin."

February 2003

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Veganism A Religion? It Depends. by Darrell R. VanDeusen

Veganism A Religion? It Depends.
by Darrell R. VanDeusen