Firing based on supervisor's religious beliefs

Brooks Fudenberg bfudenbe at LAW.MIAMI.EDU
Tue Jun 17 12:18:34 PDT 1997

        I assume West Virginia has an anti-adultery ordinance.  If so:

        I fire a subordinate, saying, "I don't want anyone working for
me who violates the state ordinance against adultery, *because* I think
adultery is a sin against God."  Now I am OK?

        Or, as a prosecutor, I fire an employee, saying her living with
her boyfriend violates my religious beliefs.  She brings suit for wrongful
discharge.  I prosecute for violation of the state prohibition.   Result:
We pay her money, and put her in jail?

Brooks R. Fudenberg
University of Miami School of Law

On Mon, 16 Jun 1997, Eugene Volokh wrote:

>     Jo Hensell (now Jo Henegar), who was separated from her husband,
> began living with a coworker, Doug Henegar.  "The relationship . . .
> offended the religious beliefs of Doug Perry, [their manager].  As a
> consequence, he sought to impose restrictions on their conduct both
> within and outside the workplace."  In particular, he told them not
> to eat lunch, take breaks, or drive to work together.
>     Hensell eventually quit because of this.  A few months later, she
> tried to get rehired, and was even given an offer, but the offer was
> then withdrawn.  She sued, claiming religious discrimination.
>     Held:  An allegation that plaintiff wasn't rehired "because her
> prior conduct had offender her former supervisor's religious beliefs
> . . . states a cause of action under the [West Virginia Human Rights]
> Act."  Henegar v. Sears, Roebuck & Co., 1997 WL 309895 (N.D. W. Va.
> Feb. 13).
>     Though plaintiff couldn't claim that she was being discriminated
> against based on her own religious affiliation, or that she had some
> specific religious beliefs which defendant didn't accommodate, the
> alleged religious reasons for the manager's actions were held to be
> sufficient.
>     The court concluded that this was discrimination "result[ing]
> from [an employee's] failure to share an employer's religious
> beliefs," and cited various cases that held this sort of conduct was
> religious discrimination.  All those cases, though, involved claims
> that the employer discriminated against someone for belonging or not
> belonging to a particular faith, not simply for engaging in conduct
> that the employer found religiously improper.
>     This echoes a discussion I recall we had on the list several
> months ago.  In my view, this result is both statutory incorrect and
> unconstitutional discrimination against religion.  If the facts were
> identical but the supervisor was acting out of nonreligious
> disapproval of an adulterous relationship, the failure to rehire
> would be quite legal; the court seems to acknowledge as much.  The
> only thing that makes the failure to rehire illegal is the fact that
> the defendant's moral principles were religiously based.  It seems to
> me that can't be right.
> ----------------------------------------    -------------------------
> "Nothing there but fog . . .                Eugene Volokh
>  and no light can penetrate                 UCLA Law School
>  that memorandum."                          405 Hilgard, LA, CA 90095
>  W. Warriner, 101 Corporate Haiku, no. 34   (310) 206-3926

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