Prof. Steven D. Jamar
sjamar at LAW.HOWARD.EDU
Tue Aug 11 14:11:11 PDT 1998
It is precisely the point raised by Michael which led me to spend too
many years of my life :-) on an article about the problem or religious
discrimation by the religious secular employer.
It seems to me that there are three interests involved here which, to my
mind, should be balanced and accommodated as much as can be while giving
due respect to the other interests. Those interests are the ones of the
employee/individual, the ones of the employer(individual sometimes,
corporation or partnership sometimes - does it matter?), and those of
the community/state/government/society (recognizing that these are not
always the same thing or have the same interests - the point is that
there is a group outside the two main parties (employee/employer) which
has legitimate (to my mind) interests.
Belief-based discrimination is different from pure status-based
discrimination. Discrimination on the basis of religion can be either
belief-based or status based. Pure status-based discrimination should
be prohibited when done on the basis of religion just like sex and
race. But belief-based is a bit different. And it typically is hard to
find a significant problem case which does not involve the belief
My proposed solution is that what works best is to explicitly recognize
that an employer does have legitimate interests, as does the employee,
as does society and that an accommodationist, generous approach should
be taken rather than an all-or-nothing approach which tends to favor one
person or one group over another.
My sense is that the anti-discrimination laws do a lot more good for
minority religions and even majority religions in the workplace than
they do harm. I agree that a number of courts have gone overboard (I
represented a born again, evangelical Christian client in a case where I
think that happened (he prayed to God and hired me anyway despite my
disclosure that I was an atheist)) in protecting employees against a
religious environment. I think the religious environment cases ought
not be allowed. Harrassment cases - yes, pure "atmosphere" - no.
Where I suspect this chafes with Rick Duncan is that employers's
unbridled liberty is being checked. This I support in favor of
employees. As I see it one must give way; and in the normal case both
ought to give a little.
Michael McConnell wrote:
> Whether on balance Rick Duncan is right that religious
> antidiscrimination laws do more harm than good is impossible to say.
> But the thing that makes religious antidiscrimination laws more
> problematic than other antidiscrimination laws is that they define as
> "discrimination" actions by private persons that express or promote
> their religious opinions and convictions. Thus, when the "Suns" seek
> to express their support for churchgoing, it is "discrimination."
> When a small businessman seeks co-workers who will pray with him
> every morning and share a common vocational vision for the
> enterprise, that is "discrimination." When a ministry to alcoholics
> believes that the solution is to be found, in part, through a
> conversion experience, and hires people who are willing to provide
> that kind of help, this is "discrimination" (and is illegal unless
> the ministry is actually a "religious organization"). Note that
> these forms of "discrimination" are *not* animated by dislike or
> prejudice against any other persons or groups; they are animated by
> the desire to practice and express one's faith. Note also that other
> ideological affinity groups are free to engage in analogous forms of
> "discrimination." No one tells the Sierra Club it has to hire people
> who favor pollution.
> This leads me to the conclusion that prohibitions on religious
> discrimination are not precisely parallel to prohibitions on such
> things as race or sex discrimination. Those almost always have to do
> with group-based prejudice or animus. When the state criminalizes
> religious expression and practice in the name of
> "anti-discrimination," I think there is a problem.
> -- Michael McConnell (U of Utah)
Steven D. Jamar
Professor of Law
Director, Legal Research & Writing Program
Howard University School of Law
2900 Van Ness Street N.W.
Washington, D.C. 20008
United States of America
vox: 202-806-8017 fax: 202-806-8428
email: sjamar at law.howard.edu
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