Religious Discrimination

Discrimination based upon religion is in the news, we said on August 24th, after the EEOC sued a Food Lion store in North Carolina for refusing to accommodate, and firing, an employee who is a Jehovah’s Witness.

The EEOC has just filed three new Title VII lawsuits based upon religious discrimination, with two involving the always interesting issue of accommodating hair and hairstyles if they are part of a sincerely-held religious belief.

bearded man : Bearded man praying while holding Holy Bible.

More Hair Than Solomon

In one case, a subsidiary of U.S. Steel revoked an applicant’s oral job offer which was contingent upon his successful completion of a pre-employment drug test which required a hair follicle sample.  The applicant is of the Nazirite sect of the Hebrew Israelite faith, and his religious beliefs forbid him from cutting hair from his scalp, although he was told by US Steel that he could have hair taken from his beard which would be adequate and sufficient.  A beard hair sample was, in fact, taken from him but the test was not completed.

The test supervisor said that the applicant “has more hair than Solomon,” and refused to re-test him because he allegedly “created a negative scene” at the clinic.  He was not hired.

The EEOC said that “When a worker’s sincerely held religious beliefs can be accommodated without imposing an undue burden on an employer — as in this case — the employer cannot discriminate because of the worker’s religious beliefs and practices. This lawsuit will send a message to employers that the EEOC will vigorously enforce federal law by prosecuting companies which deny equal opportunity to religiously observant workers who seek to adhere to the tenets of their faith.”

In the second hair case, a North Carolina beer distributor failed to accommodate a Rastafarian man who applied for a job as a delivery driver but whose religious beliefs forbid him to cut his hair.  He was not hired.  An EEOC attorney said that “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.  This case demonstrates the EEOC’s continued commitment to fighting religious discrimination in the workplace.”

rastafarian : Portrait of a happy rastafarian young man listening to music in headphones. Stock Photo

The third case involved a Michigan car dealership which failed to hire an applicant for a job as a car salesperson because he is a religious member of a non-denominational church.  After learning about his religious beliefs, management “expressed concerns” and denied him the job.  (It is not clear to us from the EEOC press release just what about the applicant’s religion or beliefs upset maangement).

Nonetheless, the EEOC said that “Some employers need to learn that religious discrimination and a 21st-century workplace don’t mix.  The EEOC is here to fight for people unreasonably asked to choose between their faith and a job.”

Takeaway

On October 26, 2013, we recommended an article in the Wall Street Journal (page B1) about the increasing number of claims of religious discrimination: ”Part of the surge comes from employees – Muslims, Christians, Seventh-Day Adventists and others – who were denied requests to avoid work on Sabbath days.   Conflicts also have erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

We have blogged many times about religious accommodation issues, which though complicated, cannot simply be ignored or unilaterally denied without making some attempt to accommodate the employee.   Many such cases involve time off, but many involve dress and grooming codes — such as these latest three.

While an employer may generally refuse to hire based upon dress or grooming, this does not hold true if the dress, hair style or grooming is a part of one’s sincerely-held religious beliefs, or somehow implicates some other protected class under Title VII.  In that case, tread carefully!

 

 

The EEOC has just sued a North Carolina fast food franchisee for revoking a job offer to a Seventh-day Adventist because he could not work on Sabbath.

The plaintiff, whose religious beliefs forbid him to work on the Sabbath – from sunset on Friday until sunset on Saturday – claimed that he was offered a position as a donut maker, but when he was informed that he would begin work on that  Friday at 3 pm, he told the manager that his religious faith forbid that.  The job offer was revoked.   The franchise has now been sued.

religious faith : Faith concept with bright electric lamp against dark black background Stock Photo

Recently we published a post entitled “Accommodate Religious Beliefs: The EEOC Is Watching,” and referred readers to a post of ours from  October 26, 2013, in which we recommended an article in the Wall Street Journal (page B1) about the increasing number of claims of religious discrimination:   “Part of the surge comes from employees – Muslims, Christians, Seventh-Day Adventists and others – who were denied requests to avoid work on Sabbath days.   Conflicts also have erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

On October 2, 2013 we posted about a California car dealership which had just settled an EEOC religious discrimination lawsuit for $158,000, a case based upon the claim of a Nigerian employee, a Seventh-day Adventist, who was refused the accommodation of not working from sundown Friday to sundown Saturday, his Sabbath.  When he took such leave he was harassed and then fired.

An EEOC attorney said then that “Employers must recognize the value of diversity in their workforce, including religious diversity, and not harass or discriminate against those of different faiths or religious practices.”

Another EEOC trial attorney said what we always advise employers:    “Businesses have a clear legal duty under federal law to handle requests for religious accommodations from their employees with due amounts of consideration.”

 

Discrimination based upon religion is in the news today after the EEOC just sued a Food Lion store in North Carolina for refusing to accommodate, and firing, an employee who is a Jehovah’s Witness.

religion : hands protecting the glowing flame of a candle in the darkness Stock Photo

When he was hired as a meat cutter, the employee told the store manager that his religious beliefs required him to attend church services Sundays and Thursday evenings.  The manager agreed to accommodate this request, but when he was transferred to another store, his new manager fired him noting that he didn’t know how the employee could not work on Sundays.

An EEOC attorney stated:  “Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommodation must be provided.  No person should ever be forced to choose between his religion and his job.”

On October 26, 2013, we recommended an article in the Wall Street Journal (page B1) about the increasing number of claims of religious discrimination:  “Part of the surge comes from employees – Muslims, Christians, Seventh-Day Adventists and others – who were denied requests to avoid work on Sabbath days. Conflicts also have erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

We also reported last year that the EEOC announced that it had settled (for $70,000) a case of religious discrimination against an employee who was a Jehovah’s Witness because the employer failed to accommodate his request for a schedule change so he could attend an annual religious service.   Besides having his request denied, he was fired, and also placed on the company’s list of “do not rehire” employees.

An EEOC trial attorney said what we always advise employers:   “Businesses have a clear legal duty under federal law to handle requests for religious accommodations from their employees with due amounts of consideration.”

religion : Man pray for something over black background with space for text on right

We have blogged many times about religious accommodation issues, which though complicated, cannot simply be ignored or unilaterally denied without making some attempt to accommodate the employee.  Many such cases involve time off, as this latest one does, but many involve dress and grooming codes.

Two years ago, my partner Christina wrote about a workshop sponsored by the EEOC’s Training Institute and the agency’s Washington, D.C., field office, where a senior attorney noted that these types of cases are “low hanging fruit.”

“The reason is that these cases,” she wrote, “unlike a lot of employment cases, do not usually involve a lot of documents or witnesses.  Instead, it usually involves a low level manager who is strictly enforcing a dress code that is usually contained in one or two paragraphs of a handbook.  As the senior EEOC attorney stated, managers need to be trained that certain religious beliefs may mean that employees cannot comply with a dress code.   Managers also need to be trained that a dress code is not carved in stone and some flexibility may need to be applied.”

 

 

We would like to bring you back to “Onionhead,” the cult? religion? spiritual belief system? that is at the heart of an EEOC Title VII lawsuit which alleges that a company forced its employees to hold hands, pray, burn candles and tell co-workers “I love you.”

vegetable cartoon : Illustration of a comical onion

Christina did a well-researched post in June in which she described the EEOC’s suit and deconstructed what was named “Harnessing Happiness,” or “Onionhead.”

Is this practice really only a corporate wellness program?

corporate wellness : Businessman doing tai chi in his office

Or just a self-improvement workshop?

self-improvement : concept of not wasting time, reach your goals now

It has now been reported by Law360 that the company is seeking to file a motion to dismiss, apparently contending that “the ‘Onionhead’ belief system the company foisted on its employees isn’t a religion and thus can’t support a religious bias claim.”

The EEOC has responded vigorously that “What defendants glibly call ‘self-improvement workshops’ and ‘corporate wellness programs’ were actually compelled religious activities led by their spiritual adviser, “Denali,” and other management in violation of Title VII.”

vegetable cartoon : Onion - colored cartoon illustration as vector Illustration

It is rare that a religious discrimination case is filed where the genuiness or sincerity of a belief is in dispute or where a cse is being made that a challenged practice is not a religion.   But it sure is interesting, and we like posting the cartoon graphics!

vegetable cartoon : funny vegetable and spice cartoon isolated on white background Illustration

 

Don’t discuss employees’ religion with them, especially not at a mandatory meeting, no matter how well-intentioned you are.   And certainly don’t take adverse employment actions against an employee who opposes such a company practice.   That is called “retaliation,” and it is illegal, sometimes even if the underlying practice is not.

Settlement Of Retaliation Suit Gives Us A Chance To Review “Retaliation”

This is the takeaway from a lawsuit against a Tennessee machine company who found out about retaliation the hard way.   It conducted daily mandatory meetings, called “huddles,” at which (as the EEOC put it), “employees would discuss milestones occurring in their personal lives including their religious affiliations and church activities.” It then fired an employee who opposed such a practice and filed a charge of discrimination.

The EEOC sued for retaliation on behalf of the employee, and has just settled with this employer for $80,000, and a whole lot of other relief set forth in a four-year consent decree.

retaliation : Payback Roadsign. Business Concept on Blue Background.

What Is Retaliation?

We hope that everyone is aware by now that retaliation claims are increasing very rapidly since an employer who has an underlying charge or claim lodged against it has a very thin tightrope to walk to avoid a current employee from also charging retaliation.

We figured that this might be a good opportunity to review “retaliation” since it is far easier to prove (and difficult to defend against) than the underlying discrimination, and even if the underlying claim of discrimination has no merit, retaliation can still be claimed and proved.

All that must be shown to make out a claim for retaliation is: (1) that plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” by the employer, and (3) some causal connection between the two.

An employee who alleges or files a discrimination claim or complaint is protected from retaliation – in our parlance, the employee becomes insulated or “cocooned,” because it is extremely difficult or even next to impossible to take any adverse employment action at that point for fear of incurring a retaliation charge.

Pretty much anything you can do can be claimed to be an “adverse act” against an employee who has filed a complaint of discrimination, and therefore retaliatory (and employees have, indeed, claimed just about everything).   Termination, of course, is an adverse act, but adverse acts can also be demotion, transfer, ignoring or berating an employee, taking away work or responsibility, or giving too much work, and even refusing to re-hire.

A claim of sexual harassment by a supervisor is particularly susceptible to a follow-up retaliation claim since virtually any adverse action against the employee can be viewed as retaliation.

Preventing Retaliation Claims

To prevent retaliation claims, you first must take all steps to prevent any discrimination claims. You know the drill – zero tolerance policies, up-to-date employee manuals, training (and more training) for all managers and employees, and open communications with employees especially about reporting discrimination.

As to what to do after an employee has filed a charge or claim of discrimination, we summed it up on September 20, 2011.  An employer’s best practice is to take a “business as usual” approach and act as if no complaint had been filed by treating the employee like any other employee; engaging in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, documenting all decisions and pre and post-complaint performance issues that might result in discipline.

Takeaway: don’t retaliate – ever!

 

We reported last week about the Burwell v. Hobby Lobby Stores, Inc. decision holding that a closely-held, non-religious corporation whose owners had religious objections to providing certain forms of birth control could be exempt from the Affordable Care Act mandate requiring coverage for birth control.  The decision, although seemingly limited by the majority, may have broad-reaching effects on which portions of the ACA with which a corporate employer must comply.  The true expanse of the decision will play out in the coming months as the Supreme Court has ordered review of six similar cases in light of the ruling.

However, employers should be careful before trying to hide behind the Hobby Lobby ruling in other aspects.  Justice Alito specifically said that the ruling cannot be used for employers to use a religious belief to discriminate against employees.  To quote Justice Alito:

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction . . . . Our decision today provides no such shield.  The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

In short, Hobby Lobby does not alter Title VII analysis.

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The EEOC has just announced a new lawsuit on what has become a familiar topic – the alleged refusal of an employer, an Alabama nursing home, to accommodate a Muslim employee whose religious beliefs require her to wear a hijab, or head covering.   These religious discrimination cases relating to appearance are now almost cookie cutter in their allegations – and yet employers do not seem to be listening or seeing.

EEOC’s Accusation Of Failure To Accommodate Religious Beliefs/Practices

The company in this new suit not only refused to accommodate plaintiff, but according to the EEOC, fired her after she filed an EEOC charge – which would be retaliation, claims the EEOC.

Various EEOC attorneys stated the obvious:   “Businesses … must respect the religious practices of their employees and, when practical, accommodate those practices.  “The EEOC will continue to target policies and practices that discourage or prohibit people from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts.”

“Failure to accommodate religious dress and grooming remains a wide-spread problem. The EEOC recently issued a Question and Answer document and a fact sheet to guide employers and employees on this issue. This agency will remain vigilant to ensure that Americans of all faiths are free from discrimination in the workplace.”

The EEOC Guidance

We wrote on March 7th about the Question and Answer document referred to by the EEOC, above.   “The EEOC has just published a report on “how federal employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.”

We noted that “as if to underscore the need for such guidance,” the government just sued the Philly school district for requiring a Muslim police officer to trim his beard under a new grooming policy which requires school police officers not to have a beard longer than a quarter-inch.   He claimed that his religion forbids this.

An EEOC spokesman said then: “No employee should be forced to violate his religious beliefs in order to earn a living.   Modifying a dress or grooming code is a reasonable accommodation that enables employees to keep working without posing an undue hardship on the employer.”  (United States of America v. School District of Philadelphia, case number 2:14-cv-01334, Eastern District of Pennsylvania).

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In its guidance, the EEOC nicely sums up the examples that our readers are already familiar with:

“Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”

The EEOC then gives a brief Q and A, illustrated by examples, that we exhort all employers to read, since you are bound to come across such cases — such as the one just filed by the EEOC.

The key to all of this for employers, in our opinion?    Accommodation.

The EEOC’s View Of Accommodation

“Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.   Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.”

Go read it – now!

 

 

 

Incidents of harassment against Muslim and Arab employees have been on the rise, with virulent and racist epithets and slurs at the core.

On October 2, 2013 we reported on a national origin and religious discrimination case filing by the EEOC against a car dealership in Illinois,  alleging a hostile work environment created against Muslim and Arab sales staff who were subjected offensive comments such as “terrorist,” “sand n—-r,” and “Hezbollah,” and insulting references to their prayer bahavior and the Qur’an.”

28368951_sThe company has now agreed to pay $100,000 to settle the case.

The EEOC’s Chicago District Regional Attorney said that “Such hostile conduct is both the worst type of negative stereotyping on the basis of national origin and religion and exactly what Title VII was designed to remedy.   Protecting all employees – whether Arab or Muslim or any other national origin or religion – from such harassment is at the heart of our statutory mission.”

We have noted other cases of offensive, ethnic slurs against Muslims.  On February 12, 2013, we posted about a case out of Texas of a 51-year-old Muslim-American of Palestinian ethnic origin, who claimed that three to four times per week his boss called him “towelhead,” “raghead,” “rock thrower,” “sand nigger,” “terrorist,” “fucking Palestinian,” “shithead” or “fucking Muslim.”   He complained to his finance director and was fired, and then sued alleging, among other things, a hostile work environment based on religion and national origin.

The company argued, among other things, that these comments were not of a frequent and continuous nature, and so the alleged harassment was not severe or pervasive enough to affect a term, condition, or privilege of his employment.

The Court, however, denied the company’s summary judgment motion, and found that the ethnic and religious comments were severe and frequent, and that the employee presented testimony that because of it the work place felt “like a ‘war zone.’”

Takeaway:   Severe racial harassment, or harassment based upon national origin or religion, is not going to be tolerated by the EEOC.

 

“More than 100 people — activists, court enthusiasts and reporters — gathered outside the Supreme Court building early Monday, awaiting the last day of the court’s term, when the justices were expected to rule on whether President Obama’s health care law can require corporations to pay for insurance coverage for contraception.”      Thus spake the New York Times this morning before this historic decision was announced.

And the decision?   This, according to the AP which minutes ago wrote:

“The Supreme Court says corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women.    The justices’ 5-4 decision Monday is the first time that the high court has ruled that profit-seeking businesses can hold religious views under federal law.   And it means the Obama administration must search for a different way of providing free contraception to women who are covered under objecting companies’ health insurance plans.

Justice Samuel Alito wrote the majority opinion.   The court’s four liberal justices dissented. 2287427_s

The court stressed that its ruling applies only to corporations that are under the control of just a few people in which there is no essential difference between the business and its owners.  Alito also said the decision is limited to contraceptives under the health care law.   “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs,” Alito said (emphasis aded).

Can The Sincerely Held Religious Belief Of Hobby Lobby’s Owner Be Imputed To The Business?   The Supreme Court Says “Yes”

Since the passage of the “Patient Protection and Affordable Care Act (“ACA,” or “Obamacare”), employers who claim that their religious beliefs prevent them from using, paying for, or supporting the use of contraception, have claimed that this religious claim should be imputed to their wholly-owned companies such that these companies should be exempt from having to provide or participate in health insurance that includes providing contraceptives (or else incur a penalty).

Can an owner’s religion be imputed to a corporation such that the corporation can claim that Obamacare violates either the Religious Freedom Restoration Act (known as “RFRA”) or the First Amendment?

Last year an Oklahoma federal court issued a decision which denied an injunction sought by Hobby Lobby Stores, a for-profit, secular corporation owned by a family management trust whose trustees are practicing Christians, which challenged the validity of the ACA’s women’s preventive care services mandate.   The Court held that Hobby Lobby, as a secular, for-profit company, does not satisfy the ACA’s definition of a “religious employer,” and concluded that plaintiffs had no likelihood of succeeding on the merits of their claims.

A federal appeals court in Philadelphia agreed with the Oklahoma court.

An Earlier Ruling In Favor Of Hobby Lobby’s Position

But on November 2, 2012, we reported that a federal court in Michigan enjoined the application of the ACA rule.   The Michigan court dealt with a family which owns 100% of the voting shares of a for-profit corporation that manufactures wood cabinets and has 950 employees.   “The Hahns practice the Mennonite religion.   According to their Amended Complaint, the Mennonite Church ‘teaches that taking of life which includes anything that terminates a fertilized embryo is intrinsic evil and a sin against God to which they are held accountable.’ … the Hahns object to two drugs that must be provided by group health plans under the [ACA] Mandate that ‘may cause the demise of an already conceived but not yet attached human embryo.’ (… These are ‘emergency contraception’ drugs such as Plan B (the ‘morning after pill’) and ella (the ‘week after pill’).”

Does Citizens United Afford A Corporation Religious Rights?

The Court, dealing with the (in?)famous Citizens United case, where the Supreme Court held that “the Government may not suppress political speech on the basis of the speaker‘s corporate identity,” found that “whether Citizens United is applicable to the Free Exercise Clause is a question of first impression” and “we must consider whether the Free Exercise Clause has historically protected corporations, or whether the ‘guarantee is ‘purely personal’ or is unavailable to Corporations’ based on the ‘nature, history, and purpose of [this] particular constitutional provision.’”

The Court held that “We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion.” The Court stated that “we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.”

The Dissent

In a 66-page dissent which called the ruling “deeply disappointing,” and “tragic,” the dissenting judge claimed that “one need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the government’s determination to either make the Hahns bury their religious scruples or watch while their business gets buried.”

Intending to soften the blow, especially in the face of the lengthy dissent, the majority stated that:

“our decision here is in no way intended to marginalize the Hahns’ commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an ‘intrinsic evil and a sin against God to which they are held accountable’ … and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary—that a for-profit corporation can engage in religious exercise—would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners (emphasis added).”

 

7340045_sThe online news is abuzz with discussions about the EEOC’s latest lawsuit against United Health Program Services based in Syosset, New York.  According to the complaint, United Health forced its employees to engage in various activities such as holding hands, praying, burning candles and telling co-workers “I love you.”

I must admit that I had never heard of the Onionhead religion before reading about this lawsuit.  For those of you similarly uninformed, Onionhead was started by a mother-daughter duo about 20 years ago.  According to the Harnessing Happiness Foundation, which is the official name of the organization spouting the virtues of Onionhead:

“It is not what is Onionhead – it is who is Onionhead? Onionhead is this incredibly pure, wise and adorable character who teaches us how to name it – claim it – tame it – aim it. Onion spelled backwards is ‘no-i-no’. He wants everyone to know how they feel and then know what to do with those feelings. He helps us direct our emotions in a truthful and compassionate way. Which in turn assists us to communicate more appropriately and peacefully. In turn, we then approach life from a place of our wellness rather than a place of our wounds.

His motto is: peel it – feel it – heal it “

Still confused?  So am I, but I don’t really need to dig deeper (pun intended) for the purposes of this post.

Interestingly, for all those in the blogosphere calling Onionhead a cult, not a religion, Denali Jordan, who is at the heart of the employees’ complaints and is the company’s leader of the company’s Onionhead practices, told the NY Daily News  that Onionhead is not a religion.

If that is what Ms. Jordan and the company believe, then I must ask  “what the heck were you thinking?”  Although it should be obvious by now that an employer cannot force its religious beliefs on employees (see our May 10, 2013 post about an employer forcing Scientology on its employees), at least in that case I can understand the employer’s misguided motivation.  Without that motivation, I am at a loss for why it is good idea to force employees to share their innermost feelings and routinely declare their love for their co-workers. In a different case, I could see how these facts would be the start of a sexual harassment complaint.

If Onionhead is in fact viewed as a religion by its adherents, I guess it is a religion that is not concerned with honesty.  Before any Onionheads contact us outraged, I am simply making the observation, based on years of my own work experience and of counseling employers about workplace problems, not all employees love each other.  Maybe it’s more accurate in some circumstances to make employees say “I tolerate you because the law will not let me hit you and I need a paycheck.”