Here’s an urgent news alert to those flying into Seattle in the near future and looking to take a Hertz shuttle bus. Be prepared for delays because the company’s local management there felt like making the news by indefinitely suspending 34 of its Muslim employees for praying on the job.
Hahaha, just kidding, about the delays anyway. I mean, when was the last time a multi-million dollar company was slowed down by the loss of 34 workers? Because as we all know, only the really important stuff gets the big layoffs, but I digress.
Anyway, the clash between the Seattle branch of Hertz and its Muslim employees boiled over last week when according to reports, a Hertz manager told an employee (while, I assume, twirling his mustache and draped in a black cape and top hat), “If you guys pray, you go home.” The comment was said right before the employees were preparing to say their prayers. The argument stems from the supposed existence of a new company policy that the employees’ union had negotiated with Hertz that allowed the employees to pray without having to punch out first. Hertz claims no such policy exists and that though their employees are free to exercise their religious beliefs, they aren’t entitled to be paid for the time spent doing so. And that time can add up considering the devout Muslim employees pray five times a day.
Though it’s uncertain whether or not the dispute will be settled in the near future and the employees will be taken off suspension, what is certain is that, like death and taxes, lawsuits and religious persecution always go hand-in-hand. And it wouldn’t surprise me if one springs forth from this mess before the dust settles. Taking a look at the comments left by readers in the blogosphere and it becomes apparent that most people are thinking the same thing; unfortunately it’s mostly wrong.
Although it’s still blindingly obvious that legal action will be taken, the lead argument in it probably won’t be what most people assume it to be, and that is a lawsuit based on unconstitutional freedom of religion discrimination based on the establishment clause of the First Amendment. The winner in this case will actually be a breach of contract dispute.
The reason is because despite the fact that the First Amendment protects freedom of expression and the establishment clause within it ensures that the government cannot endorse any religious view, whether it be positive or negative, the problem is that Hertz is not a government entity, but rather a private corporation.
You see, with the exception of some very limited parts of the Constitution, such as the Thirteenth Amendment’s prohibition against slavery and indentured servitude, the protections given by the US Constitution only apply when the violator is the state or federal government. Hopefully that last statement didn’t surprise too many people, otherwise our country’s educational system has got a lot of splainin’ to do.
In order to sue for a violation of the Constitution, one must first establish that the issue at hand must meet at least four requirements (there are more, but these four generally apply universally to both state and federal courts). The issue must be ripe: that it has or will cause harm or has a likely chance of doing so in the near future. The issue cannot be moot: it’s already been resolved. It cannot be a political question, meaning an issue that the legislative branch of our government should decide. And the party suing must have standing to sue: he or she must show that he/she were harmed by the actions caused by the defendant, that the court can actually cure the party’s harm, and that the defendant is either the government itself or what is called a “state actor.”
A state actor is essentially a private party that is conducts itself with either the express or implied authorization of the government, so much so that the government becomes entangled with the private entity to the point that the private entity may be considered an extension of the government’s actions itself. Despite what the name implies, state actor status can be applied on both a state and federal level. It’s a simple concept, one that law professors like to make sound extraordinarily complicated (probably to justify keeping their jobs).
Anyway, Hertz certainly caused the employees harm by not paying them for praying at work and the court can definitely cure this harm by forcing Hertz to pay them for their loss work hours. The problem is that Hertz is not a government actor. Sure an argument can and has been made many time over that those providing transport are providing an essential government function. But that argument won’t fly here because Hertz doesn’t have an exclusive contract with Seattle to be the sole airport transport company; there are plenty of other bus companies doing the same thing.
Though if this case were somehow able to make it pass the lack of standing issue, it’d be interesting to see how this one would play out. Right now the law says that equal enforcement of a policy restricting behavior, even if it’s religious behavior, that is neutral in respect to religion, is constitutional. However, there are also a few old cases that rule that the government can’t refuse to pay workers unemployment if they are fired due to their inability to work during certain times due to their religious belief. Yes, the workers at Hertz haven’t been fired yet, but it’d be interesting nonetheless to see how the lawyers would’ve tried to weasel through with that one.
In any case, if you happen to know any of the Hertz workers in this predicament please be sure to send them a card if the worst happens, because apparently there really is one for every occasion now.