Firing based on supervisor's religious beliefs

[Eugene Volokh]

    I too would be bothered by a supervisor firing someone (or, in
this case, not rehiring someone) for eating a ham and cheese
sandwich; but I suspect that it's just the general bother I have
whenever an at-will employee is terminated for a stupid reason.

    I'd likewise be bothered by a supervisor not hiring someone for
belonging to the Republican Party, or for being a hunter (if the
supervisor opposes hunting), or because his horoscope so told him.  I
generally support employment at will, so I wouldn't make such conduct
illegal, but I agree that it's unpleasant.

    Nonetheless, it seems to me that it's not religious
discrimination in the traditional sense:  It's not treating an
employee differently because of the employee's religion or even the
employee's religiously motivated conduct.  What's more, as Alan
agrees, disfavoring religiously justified firings vis-a-vis morally
justified firings would itself discriminate against religion.

    And I'm not sure why the rule should -- or how the rule could --
be different for religious ritual requirements.  After all, the law
allows firing based not only on assertedly moral reasons, but also on
purely arbitrary reasons (cf. the horoscope example).  I can fire you
for eating a ham and cheese sandwich just because I hate ham and
cheese and don't like being around people who like.  I can fire you
for eating a ham and cheese sandwich because I erroneously (and
foolishly) believe that such sandwiches are so unhealthy that you're
much more likely to die on the job.  I can fire you for eating a ham
and cheese sandwich because I think it's morally wrong to eat meet.
Why I shouldn't I be able to fire you for eating a ham and cheese
sandwich because I think God frowns on people who do that?

    Of course, as Alan acknowledges, the moral belief / ritual belief
line is often not an easy one to draw.

    (Technical aside:  As I understand it, devout Jews only believe
that it's wrong for *Jews* to eat milk and meat; this is not one of
the Noatic laws that is binding on non-Jews as well.  If a Jewish
employer therefore fires Jews who eat milk and meat but not non-Jews
who eat milk and meat, *that* would be religious discrimination, not
because of the religious motivation for the firing, but because of
the different treatment of Jews and non-Jews who engage in the same
behavior.)



Alan Brownstein writes:

>         I may have missed the earlier discussion on this issue (or probably
> just forgot what was said). If a supervisor fires an employee for refusing
> to engage in a religious ritual requirement, is that different from a
> supervisor firing someone for violating a religiously based moral
> requirement? Suppose the supervisor fires someone for working on the Sabbath
> or for eating a ham and cheese sandwich? I think Eugene clearly has a point
> when he suggests that there is something wrong with allowing a secular boss
> to fire an adulterer for secular reasons while holding that a religious boss
> can not fire an adulterer for religious reasons.
>
>         But I would be bothered by the case where someone is fired for not
> complying with religious ritual requirements. Moreover, I am not certain
> that I can always distinguish moral and ritual requirements as a practical
> matter. Nor am I clear in my own mind what the intellectual basis is for
> distinguishing between the two.


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"Nothing there but fog . . .                Eugene Volokh
 and no light can penetrate                 UCLA Law School
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