Religious discrimination by commercial business

[Thomas C. Berg]

On Thu, 20 Aug 1998 18:03:19 -0700 Alan Brownstein
<aebrownstein at UCDAVIS.EDU> wrote, with respect to the
distinction between religious discrimination and political
discrimination in employment by commercial businesses:
>
>
>         . . . I think there are significant differences
between political and > religious discrimination. First, I
think that it is easier to put one's
> political beliefs aside during the workday than it is to put one's
> religious obligations aside. Lot's of people don't talk politics at the
> shop -- although they may be committed activists elsewhere. Religious
> practices, because they are often a part of daily life, are not so easily
> set aside. (I think Tom and I agree on this.) Thus if the boss doesn't like
> liberals it may be a lot easier not to be a liberal at work than it would
> be to stop being a Jew or a Catholic at work.
>

This distinction between religious beliefs or identity and
political beliefs or identity is one to which I am
sympathetic.  But it is a distinction that applies not only
to the employee, on whose interests Alan focuses in the
paragraph quoted above, but also to the employer.
Religious duties would also be harder than political
beliefs for *employers* to put aside -- including, in this
case, employers who feel bound to bring their faith to bear
in the workplace to the point of creating a community of
like-minded workers.  I would guess that Alan agrees with
this, and so this exchange appears to take us back to the
question of how to draw lines that take account of both
interests.  I raised the politics-religion comparison only
to suggest that with respect to businesses that are really
ideological in nature, an employer's religious ideology
should not receive *less* consideration by the law than
another employer's political ideology.

Alan also writes:
>
>         Generally speaking, I think employers, religious or otherwise, should be
> required to take reasonable steps to accomodate the religious beliefs and
> practices of their employees. When such accomodations are possible, I do
> not think that employers should be allowed to discriminate on the basis of
> religion in hiring staff. When the employer claims that for religious
> reasons, he or she can not hire people of a different faith, I would like
> to have a clearer understanding of why the employer's religion precludes
> him from doing so. Tom suggests that it isn't enough for Baptists, for
> example, to say that they would just prefer to work with other Baptists.
> Tom would require the business work force to participate in other religious
> activities, Bible classes and the like, before the business would be
> permitted to discriminate on the basis of religion in hiring. I appreciate
> this attempt to fairly balance the competing interests at stake in this
> situation. But I would go at least one step further and ask why the firm
> can not effectively support these religious activities if it hires
> employees of other faiths and permits them to refrain from participating.
>
>         There may be jobs where the interaction of co-workers is of such a nature
> that there can be continuing collective religious activity for all or most
> of the work day. And I can imagine a business publishing a religious
> newspaper for profit or manufacturing religous articles where the product
> itself is religious in nature. To my mind these are very different
> situations from a factory operating an assembly line making non-religious
> widgets -- even if the line workers meet for prayer and study in the
> morning before work and at lunch. A line worker can be excused from these
> activities and still perform the job honestly and competently. And it is
> not clear to me how the absence of workers of other faiths from the Bible
> study class interferes with or undermines the program for those who do
> attend. If workers of a minority faith were allowed to organize their own
> service and study group while the majority of workers attended the company
> sponsored programs, how would this substantially interfere with the
> religious beliefs and practices of the owner and the majority of workers?
>

The interest I am trying to describe -- based on what I
know of the views of some religious businessmen and
businesswomen -- is the interest in creating a business in
which everything, including the direct production of goods
and services, is done by the employees to the glory of God
(I use the name to encompass a variety of beliefs in a
deity or in divinity).  It is not simply the interest in
being able to conduct religious services together in the
workplace, which admittedly could be done with
non-believing employees absent.  Rather, it is the interest
in carrying out a belief that everything that emerges from
that workplace should be an expression of, or an embodiment
of, the faith in God of the people doing the producing.
That is an interest that inherently requires a religiously
homogeneous community in the workplace.  (Or even on a
softer view, it would require preferences in employment for
members of the employer's faith, so as to ensure that the
overall character of the workplace is substantially of that
faith -- preferences that would be just as much a prima
facie violation of Title VII as would a flat hiring rule.)

To such employers, a widget is religious rather than
non-religious, just as much the embodiment or expression of
belief as is the production of yarmulkes, Sikh knives, or
Baptist Sunday school materials.  This is a view that
deserves serious consideration for accommodation; we should
not rest the law on a metaphysical assertion that the
widget is non-religious.  Such an assertion amounts to a
kind of sealing off of faith from the world of commerce and
everyday life, a divide that I think is inconsistent with
most of the religious traditions that are prominent among
Americans, especially a good part of the Jewish and
Christian traditions.  (I should add that I am not accusing
Alan of asserting "the widget is non-religious" as a
metaphysical or ultimate truth; I take it as a distinction
made with the goal of drawing reasonable and administrable
lines to take account of employer and employee interests.
My only point is that the employer's assertion "the widget
is religious" should be taken seriously and accommodated if
possible.)

The interest described above is perhaps not entirely
concrete and may be subject to kinds of manipulation that
would, as Alan warns, substantially undermine the overall
prohibition against religious discrimination in employment.
I believe that facts such as fairly full-blooded required
employee statements of faith, regular religious meetings,
and others are important indicia of the kind of employer
attitude I am describing -- and so I would rely on such
facts in order to separate out the real claims from the
spurious ones.  But I would emphasize, again, that the
employer's interest is more than just in having religious
meetings as such.

I'd like to hold off until tomorrow on responding
to Alan's comments about religious speech by employers in
the workplace.


Tom Berg
Cumberland Law School, Samford University

-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu