What About the No Test Oath Clause
hendersl at ix.netcom.com
Sat Nov 25 15:21:33 PST 2006
This debate is assuming the *Civil Rights Cases* were decided the
proper way. Maybe they were, maybe they weren't. (Is Title II of the
Civil Rights Act of 1964 constitutional or not?)
Many, many people--including the late Gerald Gunther--believed
section 5 was the way to prohibit discrimination in the workplace
rather than the commerce clause. A broad reading of section 5, along
with Privileges and Immunities (if you thing that's the best place to
locate citizen's rights) or due process incorporation of the Bill of
Rights certainly could support the application of constitutional rights
to the workplace. Since the state action doctrine is so incoherent and
the public/private "distinction" elastic, it is not "wrong" to say that
constitutional rights should expand to the workplace. It is
far-fetched on current positive law grounds, but it is not crazy to
think it could be done. (Else why would Justice Scalia have spent any
time distinguishing Title VII "hostile environment" cases in *R.A.V.*?
That's a *rhetorical* question, there are all sorts of reasons why he
would've distinguished those cases)
Prof. Lynne Henderson
Boyd School of Law--UNLV
On Nov 24, 2006, at 4:54 PM, Steven Jamar wrote:
> On Nov 24, 2006, at 7:30 PM, Bob Sheridan wrote:
>> Steven Jamar wrote:
>> "...Fourth, to the private workplace the US Constitution does not
>> reach. So one would need to look to the duty to accommodate religious
>> practices and beliefs under state anti-discrimination laws."
>> The Constitution may or may not reach the private workplace per se,
> Under what circumstances may the Constitution reach the private
> workplace per se, other than the 13th Amendment banning slavery?
>> but if a large business, such as Macy's, for example, fires a worker
>> for showing up with a Muslim head-scarf, doesn't she have an issue to
>> bring to the U.S. EEOC as a matter of religious discrimination in
> Statutory claim. Not constitutional claim, no?
>> Bob S.
> Prof. Steven D. Jamar vox: 202-806-8017
> Howard University School of Law fax: 202-806-8567
> 2900 Van Ness Street NW mailto:stevenjamar at gmail.com
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> "Rarely do we find men who willingly engage in hard, solid thinking.
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