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NAACP Chapter Claims That It's Illegal for Jewish-Owned Medical Clinic to Close Saturdays:

So at least it appears from this news story; I'm trying to get my hands on the exact complaint, but so far I haven't gotten it. (If anyone knows more about this, please let me know.)

The [Spring Valley, New York] chapter of the NAACP has filed a complaint accusing the Ben Gilman Medical and Dental Clinic of religious discrimination for closing on Saturdays.

The complaint, filed Sept. 6 with the state's Division of Human Rights, alleges that the clinic's practice of remaining closed Saturdays in observance of operators' Jewish Sabbath, unlawfully imposes their religious beliefs on others....

Willie Trotman, president of the Spring Valley branch of the National Association for the Advancement of Colored People, said the purpose of the complaint was to have the clinic open on Saturdays.

Those who work -- more than 80 percent of the clinic's clientele are Hispanic or black, according to a letter the clinic sent to the Human Rights Commission earlier this year -- would find it convenient to visit their doctors on a Saturday when they had the day off, Trotman said yesterday....

Because the complaint is confidential, [county Human Rights Commissioner S. Ram] Nagubandi could not comment on its specifics. However, he confirmed that a complaint had been filed by the NAACP and said his office -- acting as an agent for the state's Division of Human Rights -- would investigate the matter....

In a copy of the complaint provided by the NAACP, Hoffman, Milner and the clinic were said to "invoke their religion" in order to engage in "disparate treatment" of people of different faiths. It also alleges that the respondents failed to accommodate other religious beliefs....

If the complaint is as the newspaper describes it, then it's quite legally unfounded -- in fact, its theory is itself religiously discriminatory.

Some religious discrimination laws likely do bar clinics from discriminating against patients based on the patients' religious beliefs. Some of them (though not the relevant federal and New York laws) might require clinics to take steps to accommodate patients' religious beliefs, by exempting patients from clinics' generally applicable rules when the rules violate the patients' religious beliefs and the exemption isn't that burdensome on the clinic. (For instance, if a clinic requires patients to be photographed for their files and a patient has a sincere religious objection to such a requirement, the clinic may be required to exempt the patient from that objection unless there's a really important reason for the photograph.) But closing Saturdays neither treats patients differently because of their religion, nor requires patients (as a condition of getting service) to do something that violates their own religious beliefs.

Moreover, clinics are entirely free to close Saturdays just because the doctors (like people in other businesses that are closed weekends) want the day off. And if they're free to close Saturdays for secular reasons, they're equally free to close Saturdays for religious reasons. Allowing clinics to close for secular reasons but not religious ones (on the spurious grounds that closing Saturdays "unlawfully imposes their religious beliefs on others") would be discrimination against religion, since it would treat religiously motivated conduct worse than identical secularly motivated conduct.

Nor does the fact that the doctor's office gets federal funds, which the story also mentions as a basis for the NAACP chapter's complaint, change the analysis. The federal government might be able to require that offices that get federal funds remain open six days a week, regardless of their motivation for closing, and this might lead to a religious accommodation demand on the part of the doctors, likely citing the federal Religious Freedom Restoration Act. But in the absence of such a requirement, doctors remain free to close whatever days they please, whether they want to close Wednesdays to play golf, Saturdays or Sundays to play with their kids, or Saturdays to observe the Sabbath.

Thanks to Joel Grossman for the pointer.

Related Posts (on one page):

  1. Jewish-Owned Clinic's Decision to Close Saturdays Interferes With Religious Freedom --
  2. NAACP Chapter Claims That It's Illegal for Jewish-Owned Medical Clinic to Close Saturdays:
dejapooh (mail):
I think this refers back to the Job Interview... "Seriously, what is your legal theory?"
9.22.2006 5:43pm
David Chesler (mail) (www):
I hope they succeed. I'm tired of having nothing but Chinese restaurants open on Christmas Day.
9.22.2006 5:46pm
Steve:
If this theory were successful, would it prohibit Christian-owned businesses from closing on Sunday?

And if they're free to close Saturdays for secular reasons, they're equally free to close Saturdays for religious reasons.

Is this broad statement really true? I mean, it's kind of like saying "if I'm free to refuse to hire you for secular reasons, I'm equally free to refuse to hire you for religious reasons." A business can turn away customers for any number of reasons, but it can't do so because they're Jewish, right?
9.22.2006 5:53pm
Eugene Volokh (www):
Steve: Actually, the hiring analogy works quite well. You may refuse to hire adulterers for secular reasons (for instance, because you think that adultery is a proxy, however imperfect, for untrustworthiness), you may likewise refuse to hire adulterers for religious reasons.

Of course, you may not refuse to hire Catholics. But there too the religiosity or not of your motivation is irrelevant -- if you refuse to hire Catholics because you're strongly pro-choice or pro-gay-rights and you want nothing to do with people who adhere to a religion whose leadership opposes abortion rights or gay rights, you're illegally discriminating. Likewise, if you refuse to hire Catholics because your religion tells you that Catholicism is evil, you're illegally discriminating.

The important point is that what matters is whether you're treating people differently based on their religion. It doesn't matter whether your actions (whether refusing to hire adulterers or refusing to hire Catholics or closing the shop Saturdays) are motivated by your religion.
9.22.2006 6:03pm
AppSocRes (mail):
Is the clinic closed on Sunday? If not, this should address the purported primary claim of the suit: that individuals are being denied easy access to treatment in a discriminatory fashion. If it is then shouldn't the NAACP be suit include the Sunday closing as being just as religiously inspired as the Saturday closing. My guess is some local NAACP bigwig got annoyed about some imagined slight at the clinic or from a clinic-involved person and this is her way of throwing a hissy fit.
9.22.2006 6:07pm
PersonFromPorlock:
Is the Spring Valley, New York chapter of the NAACP open seven days a week? If not....
9.22.2006 6:13pm
Gabriel Malor (mail):
I'm right with you dejapooh. I realize that we want lawyers to be zealous advocates and that advocacy sometimes requires creative arguments. But it's still frustrating that some lawyers cannot tell the difference between creativity and frivolity.
9.22.2006 6:13pm
cirby (mail):
They were apparently opening on Sundays, according to other news stories. They've agreed to be open seven days a week.
9.22.2006 6:19pm
A. Zarkov (mail):
A quick look at Yahoo Yellow pages show plenty of medical services available right in Spring Valley, so the patients have alternatives if they don’t like the availability of this particular clinic. Moreover lots of medical clinics are closed for the entire weekend, what about them? Suppose the Ben Gilman clinic is open on Sunday instead of Saturday, would that be a cause of action? Then again why can’t I impose my religion on others? The constitution only bars the government from imposing religion, not individuals. Does the NAACP think a Temple can’t require male visitors to cover their heads because that would be imposing religion? Finally if Muslims ran the clinic and imposed certain rules mandated by the Koran do you think NAACP would sue? I doubt it because they are afraid. Look at what’s has happened in America.
9.22.2006 6:19pm
liberty_at_work (mail) (www):
it just seems like a bizarre joke to me...
9.22.2006 6:25pm
Steve:
Thanks for the response, Prof. Volokh. That makes a lot of sense.
9.22.2006 6:26pm
Thorley Winston (mail) (www):
What I find rather interesting in the article is that the NAACP is trying to claim that the clinic has to stay open on a Saturday to provide a “reasonable accommodation” for the (presumably Christian) beliefs of people who want to go to the clinic on a Saturday. The problem as I see it is that (a) there is nothing in the Christian faith which would preclude a Christian from going to a clinic on any of the days that it is open (in which case there is nothing about their faith which requires a “reasonable accommodation”) and (b) the real reason for why the plaintiffs want the clinic open on Saturday is because it would be more convenient for the people they purport to represent to accommodate their work schedules which AFAIK the clinic is under no obligation to do as there is no “reasonable accommodation” requirement for occupational rather than religious reasons.
9.22.2006 6:30pm
elChato (mail):
I hope they succeed. I'm tired of having nothing but Chinese restaurants open on Christmas Day.

Try a casino sometime.
9.22.2006 6:50pm
billb:
elChato: or Casino El Camino!

(Open 4pm-2am every day of the year. Best burgers in Austin, TX hands down. Was the one place besides Jack in the Box (ewww) that was open one Thanksgiving Day. I was driving home from the airport (having just returned from a climbing trip in Nevada), and was very glad they were open since all the grocery stores were closed and I knew my cupboard was quite bare.)
9.22.2006 7:24pm
Mike BUSL07 (mail) (www):
Hopefully someone like IJ takes the clinic under their wing for this. They probably don't care enough to litigate it otherwise.
9.22.2006 7:31pm
Carolina:
This brings to mind a recent action in my home state of South Carolina. The NAACP here sued a number of businesses in the Myrtle Beach area claiming that those businesses chose to close for vacation during Black Bikers Week, and this was discriminatory.

The businesses were definitely closed, but the theory was picking *that* particular week to close was discriminatory.
9.22.2006 7:40pm
Rob J (mail):
would find it convenient to visit their doctors on a Saturday when they had the day off

I would find that convenient too. Oh, and banks too. While we're at it, I'd like the DMV to be open 24 hours a day as well. Along with the dry cleaners.

Wouldn't it be more of a disparate impact theory (as opposed to "disparate treatment" as the story states) since they are closed to everyone on Saturday, but it "affects" (and I use that term loosely) more blacks and hispanics? Or is that strictly employment law?
9.22.2006 7:43pm
Harry Eagar (mail):
This reminds me of a business policy that I find problematic, though not legally so.

Chik-Fil-A does not operate on Sunday, in order to provide all its employees time to be with their families. Whether this explanation is ingenuous is doubtful, since the owner is a loudmouth Christian, but in general such a policy seems legal, even admirable in the abstract, except . . .

. . . except that Chik-Fil-A has contracts at places of public accommodations (eg, Hartsfield-Jackson International Airport) which operate 24/7 and where customers in the secure concourses cannot conveniently leave to find other vendors.

It seems to me that the airport operators ought to require food vendors for passengers in transit to operate whenever the airport operates. (Within reason: I am not suggesting that all the food vendors have to be open at 3 a.m. if there are hardly any passengers around then; but there are plenty of passengers around at noon on Sundays.)

If Chik-Fil-A feels so strongly about family time, it ought, in decency, decline to bid for spaces at Hartsfield-Jackson.

Well, decent behavior won't get you very far in business, but here's a question for the lawyers: Would a passenger have any argument to sue either the airport operator or the food vendor?

Additional complication: at least in the situation I observed, there were other restaurants nearby open on Sunday. None served mediocre fried chicken, though.
9.22.2006 8:43pm
Seamus (mail):
Re Chick-Fil-A: The fact that they aren't open on Sunday puts them at a decided disadvantage in bidding for the concession, against those who can expect to derive revenue from sales on Sunday sales as well as on the other days of the week. If they can tie one-seventh of their hands behind their back that way and still win the bidding, I say more power to them. (I might think differently if they were the only restaurant in the airport, though.)
9.22.2006 9:03pm
Robert Fortuno (mail):
You have to wonder about the thought process of the people making this complaint. I assume that want the clinic fully-staffed on Saturday, not just an empty building with an unlocked door. Are they suggesting that the Jewish personnel employed by this clinic should be legally compelled to work on the Sabbath in violation of their religious beliefs? If so, exactly who doing the imposing here?
9.22.2006 9:05pm
Jack (mail) (www):
Those who work -- more than 80 percent of the clinic's clientele are Hispanic or black, according to a letter the clinic sent to the Human Rights Commission earlier this year -- would find it convenient to visit their doctors on a Saturday when they had the day off

I find this sentence wonderfully ironic (in a just-shoot-me-now-it's-so-depressing kind of way). Do these people not realize that this "convenience" would not be available if someone hadn't got the religious notion that people should have Saturday off? Come to think of it, they probably don't realize, history being dead and all...

Also, what's with that parenthetical remark about the clientele being 80% black and hispanic? How is that relevant? I understand that it is the NAACP that is filing the complaint, but why make reference to the racial composition of the clientele in a sentence talking about their working situation? Apposing this comment to the phrase "those who work" strikes me as suggestively racist, though it may well have been just sloppy writing.
9.22.2006 10:15pm
Wrigley:
I actually hope the NAACP wins this one; as crazy as it is. It will be good caselaw for my planned suit challenging Sunday blue laws as violative of the Establishment Clause. Just because I live in the Bilble Belt, doesn't mean I should have to abstain on Sundays to honor Jesus.
9.22.2006 11:37pm
lucia (mail) (www):
Wrigley,
What does this case have to do with blue laws?
9.23.2006 12:21am
Tennessean (mail):
Has the applicability of disparate impact theory to Title II been resolved? I know some courts have permitted it, albeit often in cases where either the parties have apparently agreed on the theory or in cases where the courts grants summary judgment on other grounds and doesn't have to address it, but I know other courts have rebuked it.

Assuming arguendo the issue is not resolved, the apparent claim has got to be at least marginally stronger than the newspaper claim, if only because 1) a reasonable case for extending disparate impact to Title II exists and 2) in the absence of a breadth of case law, there are a lot of possibilities out.

Indeed, given that it is a reasonable claim in that sense, filing it is certainly reasonable (i.e., able to backed by a reason).

In any case, I think you have to look at Boyle v. Jerome Country Club to discuss this case. That court said that a country club did not need to avoid Saturdays when scheduling its golf events to accommodate Jewish members. In that case, the following points are made:

1) There is, however, authority from the Seventh Circuit that ... the burden of proof in Title II cases would follow the well-established rules governing Title VII cases.

2) Plaintiff has the initial burden of establishing a prima facie case of improper discrimination. The degree of proof necessary for plaintiff to establish his prima facie case is "minimal and does not even rise to the level of a preponderance of the evidence." Once a plaintiff has made a prima facie case, a presumption arises of unlawful discrimination. The burden then shifts to the defendant "who must offer evidence that the adverse action was taken for other than impermissibly discriminatory reasons."

3) [S]ummary judgment is not generally favored in these types of cases.

4) There is some indication that the Ninth Circuit might require [the defendant] to prove that [the contested practice] is required by business necessity or has a "manifest relationship" to the [defendant's] business.

5) Plaintiff would also have a stronger case if Congress had extended to patrons of a public accommodation the same protections afforded to employees. (Note that the stronger employment protection stemmed initially from a regulatory act, not a congressional act., and the public accommodation provision in the employment context comes from the definition of religion there; the public accomodation context does not define religion at all.)

With Boyle in mind and without turning at all to the federal funding issue, I think that:

A) The NAACP would very, very likely make a decent prima facie case (minimal evidence required, after all); and
B) The hospital might not be able to rebut it (especially if they can't come up with any non-religious reason).

(Obviously, the factual differences that could be picked out by nit-pickers are many -- I'm not saying Boyle makes the NAACP lawsuit a great case; I'm saying that a somewhat similar claim was not so brusquely dismissed when it was previously considered by an actual court.)

Prof. Volokh might not like the lawsuit, upon its facts it might indeed be a loser, and I myself might, if I had more time to look into it, think that someone fairly applying the law would have no problem throwing this far, far from court. But I don't think the lawsuit is nearly as bad as it has been regarded here.
9.23.2006 12:41am
Tennessean (mail):
Nuts.
Assuming arguendo the issue is not resolved, the apparent claim has got to be at least marginally stronger than the newspaper claim, if only because 1) a reasonable case for extending disparate impact to Title II exists and 2) in the absence of a breadth of case law, there are a lot of possibilities out.

Indeed, given that it is a reasonable claim in that sense, filing it is certainly reasonable (i.e., able to backed by a reason).


Should be:
Assuming arguendo the issue is not resolved, the apparent claim has got to be at least marginally stronger than the newspaper claim, if only because 1) a reasonable case for extending disparate impact to Title II exists and 2) in the absence of a breadth of case law, the freedom to argue how the law should be is much greater.

Indeed, given that it is a reasonable claim in that first sense, filing the complaint is certainly also reasonable in a more basic sense (i.e., able to backed by a reason).
9.23.2006 12:44am
Tennessean (mail):
Prof. Volokh:

Regarding your response in the comments above, that "what matters is whether you're treating people differently based on their religion," doesn't this elide the practical issue? Indeed, if disparate impact theory is extended (and, as it already applies in Title VII cases, a constitutional argument like the one you posed would take some work), then the hospital would have to show that the decision, allegedly motivated directly by religious authority, was not discriminatory (a task possibly more daunting given the dicta re a business-relationship test).
9.23.2006 1:43am
dweeb:
I'd like to see the NAAcP win this one, and the court essentially tell the owners they can't operate the clinic and keep their Sabbath. Why? Living in a mostly Orthodox neighborhood, I've seen what happens when such choices become necessary, and I'd love to see them close the clinic, liquidate all the assets, and leave the patients and the neighborhood high and dry. That might be a good lesson.
9.23.2006 2:37am
davod (mail):
Sounds like the NAACP tried the old blackmail trick and have been forced to go to court because the clinic wouldn't agree with them. I hope the suit is thrown out and legal fees awarded to the clinic.
9.23.2006 5:08am
Mary Katherine Day-Petrano (mail):
Ok, so I am wondering what EV sees as different about a racial challenge to the First Amendment vs. a disability challenge to the First Amendment -- especially when the racial challenge invokes no countervailing First Amendment rights compared to the disability communication challenge invoking a heavy First Amendment right as against another claimed First Amendment right to disriminate?

I am still waiting for the answer to this question, with rational discourse.
9.23.2006 1:19pm
Mary Katherine Day-Petrano (mail):
"But it's still frustrating that some lawyers cannot tell the difference between creativity and frivolity."

This rather reminds me of the old saying 'One man's junk is another man's treasure." One individual's frivolity is another individual's creative meritorious argument. It is all in the eye of the beholder.
9.23.2006 1:23pm
Mary Katherine Day-Petrano (mail):
"Also, what's with that parenthetical remark about the clientele being 80% black and hispanic? How is that relevant?"

It is relevant because however the complaint is otherwise cloaked, it is really all about a racial challenge to First Amendment activity.
9.23.2006 1:27pm
Mary Katherine Day-Petrano (mail):
"Prof. Volokh:

Regarding your response in the comments above, that "what matters is whether you're treating people differently based on their religion," doesn't this elide the practical issue? Indeed, if disparate impact theory is extended (and, as it already applies in Title VII cases, a constitutional argument like the one you posed would take some work), then the hospital would have to show that the decision, allegedly motivated directly by religious authority, was not discriminatory (a task possibly more daunting given the dicta re a business-relationship test)."

Tennessean, thank you! I have had this go 'round with EV for quite some time in applying Title II of the Americans With Disabilities Act similarly. (Title II of the ADA is interpreted in light of the Rehabilitation Act of 1973, which in turn is interpreted similarly to Title VII). And EV continues to reject it when I posit almost the exact argument you make, but I still never get any legally sound argument from EV why I am wrong, or why you should be wrong. And, the problem is, though I continue to get censored for asking exactly this question, censorship does not pesuade me to EV's point of view, which one would think EV would be after.

I would not continue to harp on this point, if EV would just persuade me I am wrong and he is right. but I remain not persuaded ...
9.23.2006 1:36pm
PooHPoohBear:
Does this mean the next time I try to get gasoline for my car and the Muslim station attendants are on their prayer mat, ignoring customers, I can sue?
Didn't the NAACP ever hear the proverb, "be careful of what you wish for, you might get it?".
9.23.2006 3:03pm
Harry Eagar (mail):
Does that happen to you often? How long do they keep you waiting? It seems at least slightly related to my question about Chik-Fil-A.

I live in a county that depends on tourism. Everything takes a backseat to that. Tourists eat every day, as Harry Hopkins famously said of the poor during the Depression.
9.23.2006 4:07pm
Richard Aubrey (mail):
The ACLU will get a headache trying to figure out which side to take.

If the NAACP doesn't like the clinic's hours, let them open their own clinic.
9.23.2006 4:31pm
TC (mail):
<blockquote>
If this theory were successful, would it prohibit Christian-owned businesses from closing on Sunday?
<i>
And if they're free to close Saturdays for secular reasons, they're equally free to close Saturdays for religious reasons.</i>
</blockquote>

Others have discussed Chick-Fil-A. My wife and I love CFA and hate traveling on Sundays when we have to settle for crappier fast food. Now, thanks to the NAACP, I may have the right to force CFA to stay open on Sundays to accommodate my conveniences. Woo-hoo!
9.23.2006 4:41pm
Eugene Volokh (www):
It's unclear whether federal public accommodations law recognizes a disparate impact theory. (New York state public accommodations law does not.) But that doesn't matter, because the policy of closing Saturdays doesn't have a disparate impact on patrons based on religion. If the clinic is open only Mondays through Fridays, the consequence is that it's re available precisely the same number of days a week (five) to observant Jews and to others (setting aside Muslims, which are apparently not at issue here, and who don't have an obligation not to go to the doctor's Fridays in any event). If it's open Mondays through Fridays and Sundays, it's also available the same number of days a week (six) to observant Jews and to virtually everyone else, because Christians generally have no obligation not to go doctor's offices Sundays. The clinic's policy is motivated by the clinic owners' religion, but it doesn't have a disparate impact based on religion.

Of course, even if a disparate impact was present, such disparate impacts will very often be just fine. A store's high prices will usually have a disparate impact based on race, because income varies by race and lower-income people will be less likely to afford high prices. A store's decision to locate in some mostly-white/mostly-black/mostly-Asian part of town will have a disparate impact based on race. A store's decision not to be kosher will have a disparate impact based on religion; the list could go on. That's why even those few public accommodations discrimination laws that do have a disparate impact provision let businesses maintain practices that have a disparate impact so long as the practice "bears a significant relationship to a significant business objective" (I quote here from the New York City law), at least unless (to quote a New York Court of Appeals case) "plaintiff produces substantial evidence of an available alternative policy or practice with less disparate impact, and defendant fails to prove that the alternative policy or practice would not serve defendant's significant business objective as well as the complained-of policy or practice." Choosing to close Saturdays, Sundays, or both will doubltess have a significant relationship to a significant business objective (accommodating your employees' religious practice, or for that matter their desire to relax on weekends). That's why even in New York City it's perfectly proper for businesses to close Sundays but not Saturdays, a practice that does have a disparate impact on devout Jewish shoppers (since that leaves them unable -- given the strictures of their religion -- to shop at the store at all on the weekend, while non-Jews can shop Saturday).

But in any event, none of the "significant business objective" analysis is even needed here, because the shop's policy has no religiously disparate impact, as I noted in the first paragraph.
9.23.2006 5:26pm
denise:
Prof. Volokh,

"But that doesn't matter, because the policy of closing Saturdays doesn't have a disparate impact on patrons based on religion."

I think some people here are arguing that there's a disparate impact based on race, not religion.

Nevertheless, the second paragraph of your response covers it, and I agree with your analysis.

Furthermore, there may be less of an impact on minorities because minorities may more likely have jobs with evening and weekend hours. (I've never seen any stats on this, but that would be my guess, that whites are more likely to have the 8-5 M-F office jobs.)
9.23.2006 6:07pm
godfodder (mail):
Boy, what damage one poorly worded clause can make! I'm thinking here of the Establishment Clause. From that one mention-- the intent of which is perfectly clear-- has grown an entire industry devoted to finding new and ever more intrusive applications of it!

Not that it matters, but I can't help but think that the if NAACP has to sue somebody, it should be the lawyer who told them that this was a reasonable cause for action.

It seems that "religion" has become the one motivation that is absolutely forbidden in any public activity. You can do whatever you want just to be a bastard, but do the same things for a religious motive, and you're screwed.

The bottom line here is that the weekend is about to be outlawed. A fitting epitaph to our lawsuit-crazed society!
9.23.2006 6:31pm
godfodder (mail):
Oh, just to qualify my comment-- I know that the direct issue in this case is not the Establishment Clause. It is just that it seems like the recent (last 20 years of so) vigorous enforcement of the Establishment Clause has spilled out into other areas of public life. The irreligious seem to think that there cannot be, and never will be, any public accomodation to religious beliefs.

In other words, you can have religious beliefs, but they should never, ever influence your behavior outside of your house and your church. Because The Law forbids it.
9.23.2006 6:44pm
Tennessean (mail):
Prof. Volokh:

I'm certainly no expert, and I've not yet seen anything other than the article you linked for detailed facts, but I don't think we've really looked at the true disparate impact test.

1. It is important, I think that the plaintiff need only make "a minimal showing," and trial courts, to my experience, do give great leeway at this stage.

2. Your conclusion -- that the policy affects Jews and non-Jews equally -- seems to be based upon a logical argument, i.e., anyone can go Sun-Mon, and no one can go on Sat, so where is the disparity? At least, that is my understanding of your argument.

But "Claims that stress 'disparate impact' by contrast involve ... practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another." Smith v. City of Jackson.

Your argument, it seems to me, begs the question of how to measure the relative "treatment" of the policy. This tension is similar to the equal access versus equal results debate. Without attempting to resolve that debate, I would note that here, any argument regarding the treatment is likely to have to dig into the actual practice, e.g., its actual, real-world effects.

Under Smith, "the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities."

For comparison's sake, consider the cases discussing whether a facially neutral test can constitute disparate impact, e.g., Isabel v. City of Memphis. In those cases, everyone, whites, blacks, jews, non-jews, even me, is qualified only if they can muster a certain score on some sort of race-blind test. However, for reasons not important for the purposes of the plaintiff's initial burden, a qualified group does not pass as well as the population as a whole. That, in most cases, is sufficient for a disparate impact showing (though often the employers can show a legitimate reason).

Turning to the instant case, Professor Volokh knows, I know, and everyone else reading the webpage of a computer programmer/law professor/off-screen-character knows that anyone with enough energy and enough data can find a way to present the data such that non-Jews are "accessing" the hospital at a rate lower than Jews. Indeed, I think it will be particularly easy. I am guessing that 1 - the Jewish people in the area are more sensitive to the Sabbath initially so they are more likely to find jobs that will not put them in this bind in the first place, 2 - the Jewish people there (like here in Tennessee) are, statistically speaking, more likely on average to have greater than average flexibility with leave from work, and 3 - a significant proportion of the local non-Jews (or, given the apparent plaintiffs, African-Americans) in the area have jobs which do not grant them great flexibility. If those assumptions (or reasonably similar ones) are the case, an argument could easily be made using statistics that is at least superficially similar to many disparate-impact employment cases that make it past that initial hurdle.

You might object, and I have vociferously in the past objected, that the pattern that some plaintiff identifies is the result of a mistake in reading the statistics or correlation with a third variable, e.g., wealth, but those arguments rarely succeed, especially since the plaintiff's initial burden is minimal.

Of course, all of my commentary is predicated upon a court applying disparate impact to public accommodations, which is not a guarantee. But neither is asking a court to do so obviously wrong.

Please do remember that my point throughout is not that the NAACP necessarily wins, but that this is not a "quite legally unfounded" case, and it certainly is not sanctionably bad, as several commenters have suggested, based on what we've seen so far. Indeed, if at any point the urge to contend that I've made an argument by analogy in error, the question is not whether a better analogy can be made, but whether my analogy is some obviously wrong that it cannot ethically be presented to a court.
9.23.2006 7:18pm
Tennessean (mail):
Just to spend too much time on this, I think we would need a whole lot more information to analyze the significant business relationship issue. For instance, is the facility closed on Saturdays because the management was counseled that it would be religiously wrong for them to open their business on Saturday, regardless of whether they themselves worked (look online for the surprising wealth of analysis of Jewish-owned websites and this issue)? Or was it because staffing is a problem on Saturdays?

This issue is, I think, almost worthless to analyze without seeing more facts and arguments.

(As if my analysis of the disparate impact business is a highly critical part of the process, as opposed to the quiet settlement of the issue that I'm guessing we will shortly see. If I understand correctly, management's religious advisors had been consulted previously on the issue and had decided that the facility should be closed. However, I believe they indicated that it was a very, very close decision, and it may turn out that the same religious advisors give new advice given the current context. That may or may not be an unfortunate outcome, but it certainly pretermits the "Can a court really consider this?" issue.)
9.23.2006 7:24pm
Brian G (mail) (www):
Orwellian logic at its apex.

By the way, when does the NAACP sue Chick-Fil-A for closing on Sunday?
9.23.2006 8:21pm
Tennessean (mail):
Brian: not until Chick-Fil-A's policy adversely affects the NAACP's constituents.

You know, I don't think this is a great legal claim, but "frivolity," "a bizarre joke," "You have to wonder about the thought process of the people making this complaint," "crazy," "the old blackmail trick" (that is, the lawsuit followed an attempt at blackmail, with the suggestion that the lawsuit violates Rule 11), "if NAACP has to sue somebody, it should be the lawyer who told them that this was a reasonable cause for action," and "Orwellian logic at its apex" all seem incredibly overwrought and motivated more by personal distaste for the result rather than a reasoned conclusion regarding the apparent claim's legal merits.

(Excepting, of course, Professor Volokh's discussion of disparate impact and business necessity, which I have questioned but am not suggesting is mere personal distaste.)

All of the above comments, few of which are backed by any reasoning, are all-the-more inapt given that: 1) there are, as best as I can tell, virtually no cases in this area of the law (so the room for argument is broader) and 2) given cirby's comment, this lawsuit may have achieved the NAACP's goal perfectly and with very low legal fees. So, despite the distaste here, the NAACP had a wish, they identified a legal theory which, while not a clear winner, was neither a sanctionable theory, and filing a claim under that theory apparently achieved a settlement in which they got their wish. Woe unto them for their success, huh?
9.23.2006 8:59pm
Harry Eagar (mail):
I used to live in Des Moines, where most restaurants -- of the sit-down variety anyway -- closed on Mondays. This was once common across the Midwest, though I believe less so nowadays.

Though an informal business decision, it was, in its way, an accommodation of religion, because Midwestern Christians liked to have family dinners out on Sundays.

++++

I am not quite following Professor Volokh's statement:

'That's why even in New York City it's perfectly proper for businesses to close Sundays but not Saturdays, a practice that does have a disparate impact on devout Jewish shoppers (since that leaves them unable -- given the strictures of their religion -- to shop at the store at all on the weekend, while non-Jews can shop Saturday).'

I was in NYC last Saturday, and some businesses (the furniture store next to my hotel, for example) were closed. I don't know if it opened on Sunday.
9.23.2006 9:06pm
Eugene Volokh (www):
Harry Eagar: I wasn't saying that all businesses in New York close Sundays, but not Saturdays, but I expect that many do so, just as many do so in L.A. -- notwithstanding that New York City's ban on discrimination in places of public accommodation has a "disparate impact" component.
9.23.2006 9:58pm
Stephen F. (mail) (www):
If Chik-Fil-A feels so strongly about family time, it ought, in decency, decline to bid for spaces at Hartsfield-Jackson.

If Hartsfield-Jackson feels so strongly about full food court availability, it ought, in decency, decline Chik-Fil-A's bid.

Chik-Fil-A would only have to decline the bid if H-J required a 7 day work week as a condition of bid. Since they were allowed to bid and still close on Sundays, then I don't see why "decency" requires them not to.
9.24.2006 12:35am
Harry Eagar (mail):
Because, as Harry Hopkins said about trickle-down theory 75 years ago, 'People don't eat in the long run. They eat every day.'

And, yes, I think the airport management ought to restrict bidders to businesses willing to operate when the airport serves travelers.

This is one of those issues that, perhaps, laws are not well equipped to deal with.
9.24.2006 1:44am
David M. Nieporent (www):
Tennessean: the argument is frivolous. The fact that you can construct a chain of reasoning -- based on, admittedly, "virtually no cases in this area of law" -- does not a meritorious argument make. (Indeed, the fact that there aren't any cases is further evidence of frivolousness, given the length of time that both Title II and the disparate impact doctrine have been in existence.)

Sometimes one has to take a step back and look at the big picture, rather than individual steps in a logical chain. You're trying to argue that customers can dictate to a business when it must remain open based on the fact that there are different rates of poverty among different minority groups. (Or, in this case, majority groups, since it's a religious discrimination argument.) And if this argument flew, it would apply to every business covered by Title II in the United States, since your chain of reasoning ("non-Jews less likely to have flexible hours, etc.") does not depend upon the fact that this is a health clinic. Moreover, any Orthodox Jew in the U.S. could force any business covered by Title II to open on Sunday, since being open on Saturday and closed on Sunday really does have a disparate impact on Orthodox Jews.

You argue that "a reasonable case for extending disparate impact to Title II exists." But the fact that the chain of logic leads to a ridiculous conclusion is conclusive proof that no such reasonable case exists, and that asking a court to do is "obviously wrong."

(If your argument here is limited to the claim that they would not be sanctioned for making this argument, you're almost certainly right, unfortunately. Courts impose sanctions for frivolous arguments about 1% as often as they ought to.)

(This does illustrate why disparate impact is an absurd legal doctrine to begin with, though.)
9.24.2006 2:40am
Brian G (mail) (www):
Tennessean,

With all due respect, that is the kind of silly thinking that I am thankful I was able to avoid after going to law school. This is not a civil rights issue

Bottom line: If Jews want to close their clinic on Saturdays, then all people have to do is go to another one. My dentist isn't open on Saturdays. That stinks. I am not going around claiming they are violating my civil rights. I go when they are open.

The NAACP's claim has zero legal merit. Or, at least it should not. I could the claim "Orwellian" because it is discrimination against the "diamond merchants" in "Hymietown" cloaked in a discrimination claim.

Oh, and Hobby Lobby is closed on Sunday too. My wife hates it because she sees their sale paper on Sunday but has to wait to Monday to waste, er, spend money there. As far as I am concerned, it is the civil rights of the owners/operators of the clinic, Chick-Fil-A, and Hobby Lobby to follow their religious convictions and close when they decide to. Any so-called reading of the Constitution that suggests otherwise is a bastardization of what the First Amendment really means. And, that they get federal funding is irrelevant. Just about every hospital in the country does. So what? As far as I am concerned, if the NAACP can get a judge to agree with their position, it wouldn't be based in law, but based in the judge giving a thumbs down for something that strikes his fancy.
9.24.2006 2:44am
Harland Hirst (mail):
I venture into actual law commentary rather hesitantly.

When I was an adolescent I had a personal physician named Dr. Larry X. Larry X is Jewish and had two partners in a private practice whose heritage I do not remember. My recollection was that although I lived in South Florida, which was metropolitan even then, our relationship had much more of a Mayberry RFD quality. “You have a green stick fracture and …” and “I know you are in pain, but you have a head injury and I don’t think medication is prudent” are close approximations of his part of conversations with me. One thing I do remember was that the business hours posted on the glass by the door and that besides being closed on Saturday and Sunday the office closed at 12:00 on Wednesday’s; my mother told me that Wednesdays were when Dr. X and his partners would play golf.

I am distressed that there is serious consideration of compulsory service as a prerequisite for entry into the economy. Can we adapt/thrive/grow/survive in an economic system where a government board determines the working schedules of individuals? If Dr. X and his partners were not allowed to remove their service because of his and possibly his partner’s religious convictions on Saturday how is it possible that they would be allowed to continue to remove their services on Sunday, or Wednesday afternoons.

MKD-P seems convinced that disparate impact trumps all other consideration. But I myself am saddened that lawyers are so blithe to the potential outcomes. If you can show that a sector of society has reduced opportunities to a point that is statically significant the remainder of society must lose its ability to be an independent operator.

I just don't understand why patrons not satisfied with the service they are receiving are not expected to find alternative service providers. I realize that I am about to have dump trucks full of law books driven over my corpse, but as someone who has mowed lawns in the Florida sun there is definitely a difference between engaging in economic activity and not.
9.24.2006 4:20am
Tennessean (mail):
Mr. Nieporent: Arguing to a trial judge that "the particulars of the law don't matter, look at the big picture" is at the same time a good way to win 90% of the cases outright and a good way to end up on the losing side of a ground-breaking (for good or ill), famous case.

Moreover, you've misunderstood my argument. Merely showing a statistical disparate impact does not win the case. Here, Prof. Volokh has suggested that there is no such impact and that, therefore, the case is legally without merit. Of course I argue that there likely is such an impact, that the impact would be shown statistically.

But that isn't the end of the case. The burden shifts twice more. And the Orthodox Jew would likely lose in most places in the course of those shifts because there are legitimate business reasons to be closed on Sundays (staffing's harder, and business is down).

Moreover, I think the Orthodox Jew would rarely find himself in a position where he exists in sufficient numbers to generate the relevant statistics and where he is part of the working class unable to take advantage of anything but weekend opportunities.

If it is your belief that I am arguing that "customers can dictate to a business when it must remain open based on the fact that there are different rates of poverty among different minority groups" than most likely I have written very poorly. That is not at all what I have argued. What I have argued is that where a business entity makes a decision based strictly on religious doctrine that does have an adverse impact on members of other religions, a disparate-impact civil rights lawsuit is not frivilous and may well make it past summary judgment.

Since I have not argued for the "ridiculous conclusion" and since apparently there are no problems in the steps along the way, I suppose now the NAACP case is looking pretty good?

Whether or not disparate impact as a doctrine is absurd, I don't know. What I do think (and no one has really taken any steps to address me) is that IF disparate impact applies to Title II (and some courts have held it does), then the NAACP case is legally likely to get at least past summary judgment (and they may well win on summary judgment outright, except possibly as to damages).

Brian, are you accusing me of silly thinking for actually analyzing the facts under the law?! I'm not saying that I am glad the lawsuit was filed or that I am pleased at the current state of the law. Read what I posted: under the law as it is, the NAACP claim is not nearly as bad as everyone here suggests it is. My claims are all descriptive, not normative. You think the claim is bunk because the civil rights laws ought not to be that way, which is perfectly fine. But if you are my client and you get sued and I give you advice based on how I think the law ought to be, I'm a pretty shameful attorney. The law is what it is for most litigants, and you're doing the client a disservice to play "If I was King".
9.24.2006 5:12am
Eli Rabett (www):
I did not see this mentioned above. For a long time, (into the 60s as I recall), New York State blue laws required Sunday closure. This meant that Saturday Sabbath observers had to close their buiness at least two days a week. The law was changed to require closure at least one day a week, and, I believe the requirement was later abolished except for some sorts of businesses such as liquor stores.
9.24.2006 5:05pm
Eugene Volokh (www):
I think Tennesseean's arguments don't fly for various reasons; among other things, I think that even a disparate impact theory applied here, and if a sufficient disparate impact could be found (which I doubt), the evidence of substantial relationship to a sufficient business objective is so strong that it would justify summary judgment. Just as businesses are clearly free to close Sundays, so they are free to close Saturdays (or both Saturdays and Sundays).

But I just realized that I omitted the most clearly dispositive point. As I mentioned, New York public accommodations discrimination law does not provide for a disparate impact theory -- and while it's not clear whether federal public accommodations discrimination law provides for such a theory, the federal law is distinctly limited, and does not include doctor's offices: It only covers (see 42 U.S.C.A. § 2000a(b)):
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.
Cases have made clear that these definitions are exclusive. So unless there's something very odd about the clinic -- for instance, the clinic itself (not just the building within which it's located) contains a lunch counter -- there's just no federal public accommodations claim at all here, and thus (since there's no disparate impact theory under New York state law) no disparate impact public accommodations claim.
9.24.2006 5:07pm
Tennessean (mail):
Professor Volokh: You'd think a fellow arguing that the devil is in the details would look at all the details, huh? I still think that: 1) these facts would likely support a prima facie disparate impact showing, 2) rebutting it would not be automatic, and 3) the business objective test, if it applies, requires more than just "if we can close on Sunday, we can close on Saturday." However, the hospitals-aren't-Title II-subjects point pretermits those inquiries as to Title II, and that point, not surprisingly, is pretty convincing.

My pride wants me to look at Title VI or state-action doctrine to see if a legitimate claim could be made under those criteria (likely there being more focused on alleged race discrimination), looking at cases perhaps like Ferguson v City of Charleston (1999, CA4 SC) 186 F3d 469, NAACP v Wilmington Medical Center, Inc. (1980, DC Del) 491 F Supp 290, I am guessing that would be a tough, time-consuming road. See New York City Envtl. Justice Alliance v Giuliani (1999, SD NY) 50 F Supp 2d 250 (NY court suggesting that even under disparate impact theory, there must be an allegation of intentional discrimination).

Nonetheless, I am curious to see if we ever get to see any actual pleadings or hear about any apparent settlement.

(And, not surprisingly, I remain of the opinion that most of the critiques of the NAACP's action are "incredibly overwrought and motivated more by personal distaste for the result rather than a reasoned conclusion regarding the apparent claim's legal merits." I have my doubts that those critiques are based upon the hospital/hotel distinction.)
9.24.2006 6:40pm
Brian G (mail) (www):
Tennessean,

See also Alexander v. Sandoval.
9.25.2006 1:06am
David M. Nieporent (www):
Tennessean:
If it is your belief that I am arguing that "customers can dictate to a business when it must remain open based on the fact that there are different rates of poverty among different minority groups" than most likely I have written very poorly. That is not at all what I have argued.
I agree that you have not "argued" that in the sense of advocating it. But you have argued it in the sense that (a) you have argued that the NAACP's suit, which seeks to do exactly what you say you are not arguing, is not frivolous, and (b) you have proposed a logical chain of reasoning under which this claim could have merit, and this would be the end point of that logical chain of reasoning.

The NAACP's suit is based upon the premise that a court can order a business to remain open for no reason other than that non-Jews want to would have an easier time if they could patronize the business on Saturdays, and you have argued that this is non-frivolous. And I do not believe that there's any logical principle which would distinguish this clinic from any other business (at least any other business which the poor can afford to patronize) from the point of view of its opening/closing decisions having a disparate impact on certain groups.


Every decision which affects the poor differently than the rich will have a disparate racial impact. Many, of course, can be justified based on business reasons — but (a) many non-discriminatory ones cannot, and (b) your theory would have it that merely identifying a disparate impact — which is incredibly easy — inherently makes a case non-frivolous (though perhaps not successful).

What I have argued is that where a business entity makes a decision based strictly on religious doctrine that does have an adverse impact on members of other religions, a disparate-impact civil rights lawsuit is not frivilous and may well make it past summary judgment.
It's a little misleading to say "based strictly on religious doctrine," as if the religious reason made the difference; it's not the religious motive that matters but the lack of economic motive.

As for "making it past summary judgment," there are only two possibilities: the plaintiffs can win, in which case "customers can dictate to a business when it must remain open based on the fact that there are different rates of poverty among different minority groups," or the plaintiffs can't win, in which case bringing the suit is frivolous.


And, not surprisingly, I remain of the opinion that most of the critiques of the NAACP's action are "incredibly overwrought and motivated more by personal distaste for the result rather than a reasoned conclusion regarding the apparent claim's legal merits."
What's wrong with that? Of course, some people have offered legal critiques of the NAACP — and those should be based upon the legal merits — but most of the critiques of the NAACP's action are based on the actual merits, not the legal merits, of the case. The two are not the same. The mere fact that the law permits an action does not make it justifiable to bring it. (A lawyer may have a duty of zealous advocacy once he takes a particular case, but he is not morally or ethically obligated to accept every case.)
9.25.2006 6:17am
Barry:
Another example of how the western left is the greatest threat to Jews in the world.
9.25.2006 1:51pm
Yankev (mail):

Moreover, any Orthodox Jew in the U.S. could force any business covered by Title II to open on Sunday, since being open on Saturday and closed on Sunday really does have a disparate impact on Orthodox Jews.


David, maybe it's not such a bad theory after all. Can I also force trefah restaurants to clean out there entire kitchen, get new kosher plates, pots, pans and ovens and a rabbinic supervisor and serve me a kosher meal?

Tennesean, you may be interested to know that there are plenty of low-income Jews in the US and that until recently Orthodox Jews used to be more likely than non-Orthodox Jews to be lower income. Today I would guess that there secular Jews from the former Soviet Union also are grouped in the lower income brackets of the American Jewish community. (Sorry if I've challenged anyone's neat little stereotype that we are all rich and all Orthodox.)But I am not familar with any cases that find Orthodox Jews in particular to be a protected category or a suspect (as opposed to suspected or suspicion-worthy) class.
9.25.2006 3:54pm
Yankev (mail):

What I have argued is that where a business entity makes a decision based strictly on religious doctrine that does have an adverse impact on members of other religions, a disparate-impact civil rights lawsuit is not frivilous and may well make it past summary judgment.


In that case, isn't every Kosher restuarant is discriminating against the customer who wants to eat shrimp? And isn't every halal restaurant is discriminating against the customer who wants to eat pork?
9.25.2006 4:00pm
Americano:
If the court says the plaintiffs win, can't every working person turn around and sue the COURT for not being open on Saturday or Sunday?

It seems to me that whatever claim the NAACP has against the doctors it has against the COURT, too. I mean, isn't the "discrimination" (religion, race, whatever) WORSE when your own government does it to you?

I'm not a lawyer (ok, not a good one like the people here) but, using the "logic" of the case, can't jews sue the NCAA because games are only held on Saturdays? Can't Christians sue NASCAR because the races are on Sundays (I'm guessin' on that; I don't know when they race...)

It seems to me I could think of lots of these. Which is why people call the argument silly.
9.26.2006 3:58am
dweeb:
But that doesn't matter, because the policy of closing Saturdays doesn't have a disparate impact on patrons based on religion. If the clinic is open only Mondays through Fridays, the consequence is that it's re available precisely the same number of days a week (five) to observant Jews and to others

No one can [X] - that isn't disparate impact discrimination just because only certain types of people would ever want or be willing to [X]

You're saying this is true for [X] = "use the clinic on Saturday," but you've held it's not true for [X] = "marry a member of one's own gender."
9.27.2006 3:50pm