firing pregnant teachers from religious schools.

[Scarberry, Mark]

 The "secret marriage" theory is a bit of a reach. If a teacher came to
school drunk the students would have no way of knowing whether the teacher
had been the victim of a coffee house employee who secretly put vodka in his
coffee. The boy scouts would have no way of knowing whether Dale was
secretly an agent provocateur for an anti-gay group who wanted to create
precedent favoring the right to discriminate.

And most of the Christian schools that would fire a teacher for becoming
pregnant out of wedlock also treat divorce in most cases as a sin. So the
secret marriage and secret divorce theory, even if otherwise plausible,
creates its own problem.

Mark Scarberry
Pepperdine Univ. School of Law

-----Original Message-----
From: Leslie Goldstein
To: CONLAWPROF at listserv.ucla.edu
Sent: 8/19/01 5:36 AM
Subject: Re: firing pregnant teachers from religious schools.

the children, contrary to Bernstein's assertion would have no way to
know that the pregnant teacher is not secretly married, or was not
secretly marred at the time of impregnation, later to get divorced.
LFG

David Bernstein wrote:


The counter-factual discrimination question, would you have treated this
the
same way if another group was involved, has arisen in several cases
involving
private Christian schools that fired teachers who became pregnant out of

wedlock.  In all four cases I have seen, the courts denied summary
judgment
to the schools, despite their claims that (1) adherence to Christian
doctrine
was a BFOQ and (2) that the discrimination was based "on religion" and
therefore exempt from Title VII when engaged in by a religious entity.
On
the secdon issue, courts held that the schools would need to prove to a
jury
that they would also have fired a man who had sex out of wedlock,
otherwise
the discrimination is based on gender, not religion.  The courts missed
what
I think is the obvious point that there is a difference between a man
who had
an affair that the school knows about but the children don't, and a
woman who
comes into school eight months pregnant.  Both individuals can be
forgiven
for their sins under Christian doctrine, but only one will be a public
negative role model for children.  Also, the courts didn't consider
exactly
how one can prove a counter-factual.  What if no male teacher had
actually
been known to have an affair?  How could the school prove how it would
have
reacted under circumstances that never happened?

These cases, I think, are taken care of by Dale, which should give
churches
the right to determine who is a proper role model.  But the issues
raised by
them suggest the difficulty in the line of argument "if it had been this

other group involved, the defendant would have acted differently."