firing pregnant teachers from religious schools.
Mark.Scarberry at PEPPERDINE.EDU
Sun Aug 19 09:56:33 PDT 2001
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.
Pepperdine Univ. School of Law
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.
David Bernstein wrote:
The counter-factual discrimination question, would you have treated this
same way if another group was involved, has arisen in several cases
private Christian schools that fired teachers who became pregnant out of
wedlock. In all four cases I have seen, the courts denied summary
to the schools, despite their claims that (1) adherence to Christian
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.
the secdon issue, courts held that the schools would need to prove to a
that they would also have fired a man who had sex out of wedlock,
the discrimination is based on gender, not religion. The courts missed
I think is the obvious point that there is a difference between a man
an affair that the school knows about but the children don't, and a
comes into school eight months pregnant. Both individuals can be
for their sins under Christian doctrine, but only one will be a public
negative role model for children. Also, the courts didn't consider
how one can prove a counter-factual. What if no male teacher had
been known to have an affair? How could the school prove how it would
reacted under circumstances that never happened?
These cases, I think, are taken care of by Dale, which should give
the right to determine who is a proper role model. But the issues
them suggest the difficulty in the line of argument "if it had been this
other group involved, the defendant would have acted differently."
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