Firing based on supervisor's religious beliefs
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 then withdrawn.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
> 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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