Air Your Grievances: Festivus and Discrimination

It’s December 23rd, a/k/a Christmas Eve Eve, a/k/a Festivus. So Happy Festivus! Festivus is a non-commercial holiday, begun in 1966 and celebrated on December 23, as an alternative to the pressures and commercialism of the Christmas/holiday season. A key component of the holiday is the “Airing of Grievances,” which takes place right after Festivus dinner has been served.

Various laws, including Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law prohibit discrimination on the basis of “religion” or “creed”.

This includes, generally, (1) subjecting one, because of their religion, to disparate treatment, in the form of an “adverse action”, (2) subjecting one, because of their religion, to a “hostile work environment”, and (3) failing to reasonably accommodate one’s religious beliefs and practices.

Is Festivus a “religion” entitling its practitioners to the protections of the anti-discrimination laws? To my knowledge, the issue has not been litigated in civil court (though it appears to have been recognized, albeit briefly, in connection with an inmate’s religious accommodation claim).

The U.S. Code of Federal Regulations provide:

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 [U.S. Equal Employment Opportunity] 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. … 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.

[29 C.F.R. § 1605.1]

The upshot is that in order to constitute a “religion” the practice in question need not be a widely-practiced, ancient belief system incorporating supernatural elements.

That said, there is authority that certain “parody” belief systems do not constitute a “religion.” See, e.g., Cavanaugh v. Bartelt, 178 F.Supp.3d 819 (D.Neb. 2016) (holding that belief in the “Flying Spaghetti Monster”, a/k/a the practice of “FSMism”, was not a “religion” within the meaning of the Religious Land Use and Institutionalized Persons Act; noting that while FSMism “contains a serious argument, that does not mean that the trappings of the satire used to make that argument are entitled to protection as a ‘religion.’”) (cleaned up).

Accordingly, whether and to what extent Festivus constitutes a “religion” appears to remain, as of this writing, an unresolved legal question.

However, even if Festivus practitioners are not entitled to the protections of anti-discrimination laws, other legal claims may lurk – where, for example, one is injured during the Feats of Strength or as a result of a falling aluminum pole, or defamed during the Airing of Grievances.

In any event, be safe, and be merry.

Share This: