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Jerry Friedman calls himself an “Ethical Vegan.” He 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. Because of this belief, Friedman claims that he cannot eat any animal based substances and cannot use products which have been tested for human safety on animals or which derive any of their ingredients from animals. As such, when he was told that he needed to be vaccinated for mumps in order to get a job as a computer programmer with Southern California Permanente Medical Group, he refused. The vaccine, he learned, was grown in chicken embryos. Friedman claimed that taking the vaccine was against his veganism. Because he refused this required pre-employment step, Permanente withdrew its job offer. Friedman sued, claiming that his veganism was a religion protected by the California Fair Employment and Housing Act. In Friedman v. Southern Calif. Permanente Medical Group, 80 FEP Cases 1507 (Calif. Ct. App. 2002), the California Court of Appeals, 2nd Appellate District, disagreed, finding that veganism was not a covered “religious creed.” Friedman alleged that his “beliefs are spiritual in nature and set a course for his entire way of life [and that]; he holds these beliefs with the strength of traditional religious views and has lived in accordance with his beliefs for over nine years.” WHAT IS RELIGION? The FEHA’s regulations define “religious creed” as including “any traditionally recognized religion as well as beliefs, observations, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions.” The court noted that this regulation “reflects the notion that religious creed extends beyond traditionally recognized religions. …” Although the FEHA’s definition of “religion” seems broad on its face, it is actually more restrictive than the Equal Employment Opportunity Commission’s regulation, which includes as a religion “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” As noted by the court, under the California regulation, “purely moral or ethical beliefs that are held with the strength of religious convictions may not qualify for protection under the FEHA. Rather, the expressed language of [the] regulation … requires that the beliefs, observance or practice occupy a place in the employee’s life of ‘importance parallel to that of traditionally recognized religions.’ ” This last clause is missing from the EEOC’s regulations. THREE PART TEST But what about Friedman’s claim that he holds his vegan belief with the strengths of a religious conviction? The court refused to take this assertion at face value. Rather, it applied a three-part test originally set forth by the 3rd U.S. Circuit Court of Appeals in determining whether a prison inmate was entitled to First Amendment protection for his claim that his religion required that he eat only raw foods. The Friedman court cited the case of Africa v. Com. of PA, 662 F.2d 1025 (3d Cir. 1981) in applying the test: “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.” The California court found Friedman’s vegan beliefs to be a “square peg,” trying to fit into the “round hole” of religion. STRENGTH OF BELIEF DISCOUNTED Initially, the court disregarded Friedman’s conclusory allegation that his beliefs “occupy a place in [his] life parallel to that filled by God in traditionally religious individuals. …” Such a self-serving assertion would potentially allow any strongly held belief to rise to the level of a religion. The court referred to another case where an employee claimed that his belief in “cold fusion” was religious in nature. The court specifically noted this to be a “slippery slope” argument from which there may be no return. As such, a more objective test was applied: Did veganism address fundamental and ultimate questions? No. “There is no allegation or judicially noticeable evidence that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankind’s nature or its place in the universe; matters of human life and death; or the exercise of faith.” The court noted that “there is no apparent spiritual or other worldly component to [Friedman's] beliefs. Rather, [he] alleges a moral and ethical creed limited to the single subject of highly valuing animal life and ordering one’s life based on that perspective. While veganism compels [Friedman] to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious philosophy.” Is veganism comprehensive in nature? No. Significantly, the court noted that Friedman “does not assert that his belief system derives from a power or being or faith to which all else is subordinate or upon which all else depends.” Can veganism be recognized by the presence of formal or external signs? No. The court noted that there were no “teachers or leaders; services or ceremonies; structure or organization; orders of worship, articles of faith or [even] holidays.” In sum, the court found that Friedman’s veganism was a personal philosophy, albeit shared by many others and a way of life. It was not, however, a religious creed within the meaning of the FEHA. VEGANISM AS PART OF RELIGIOUS BELIEF Significantly, the court noted that it was not attempting to resolve the question of whether a vegan life style that results from an otherwise-recognized religious belief would be subject FEHA coverage. Friedman approached the case attempting to have veganism, in itself, defined as a religion. A brief review of the Internet, however, leads to multiple Web sites promotion vegetarianism as part of Christianity, Judaism, Islam, Buddhism and Hinduism. Had Friedman approached the case from this angle, emphasizing the traditional religious underpinnings of his actions, it is quite possible that he would have been more successful in his claim. The case highlights the difficulty courts have in distinguishing between a way of life and a “religion.” Inherent in all of the cases defining “religion” is the fear of stepping too far from the traditional structure of religion. While the courts remain open to alternative notions of defining religion, opening the door too far to “non-theological” religions would create the possibly that any fired or rejected employee would conveniently claim that a “deeply-held belief” affected the employer. For example, a whistleblower claim could easily be transformed into a claim of religious discrimination by asserting that the employee’s need to report wrongdoing was based in his ethical beliefs as to right and wrong. The problems with such a claim are self-evident and the courts have never allowed such creative pleading. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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