Religious discrimination by commercial business -Reply

[Brad Jacob]

Not to challenge the value of Vance's real-world anecdote -- because
the law has to apply in the real world, not an ivory tower -- but it seems
to me that he has stumbled upon a very easy case for his point.  This
particular restaurant's owners, apparently, felt that they were fulfilling
their religious calling by having some evangelism-oriented signs on the
walls, menus, etc. From what we know, they did not care whether there
was any verbal follow-up by employees, and so their goal was
accomplished even if non-fellow-believers who didn't share their
passion delivered the food.  If that meets their convictions, no
accommodation is required.

But what if it was important to the restaurant's owners that the waiters
and waitresses pray with each diner?  It would be an unusual
establishment, granted -- but an illegal one?  Or what about the law firm
that wants its lawyers to discuss biblical principles on divorce with the
client rather than just take the case?  (I know a number of real-world law
firms like that, by the way.)  Perhaps in each of these circumstances
someone who doesn't share the religious conviction could fake it,
pretending to pray, or explaining what the Bible teaches while believing
the Bible to be hogwash -- but assuming that the business owner isn't
fooled, it is hard to argue that we should expect him to be satisfied with
even a good faker.

Which brings us back, I think, to Tom's point -- that there is some tough
balancing of sincere employer's interests and sincere employees'
interests to be done in these circumstances.  Many of the cases will not
be as easy as Vance's.

Brad

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Bradley P. Jacob, Esquire
Director of Academic Planning
Home School Legal Defense Association
17333 Pickwick Drive                        Voice 540-338-5600
Purcellville, VA 20132                          Fax 540-338-9333
Email: brad at hslda.org
Patrick Henry College email: phc at hslda.org

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>> Vance R Koven <vrkoven at WORLD.STD.COM> 08/25/98 06:36am >>

If I may inject a note of real-world experience into this otherwise
frightfully esoteric discussion, I would like to report a recent
interaction with a business that might be like the one Tom Berg
describes.

On the way home from vacation last weekend, my family stopped at a
restaurant in New Hampshire (I can't now remember the name) in which
a
substantial number of religious messages were posted on walls, menus,
etc.
It was pretty hard to avoid the impression that the owners were quite
dedicated to investing their activities with religious significance. As I
looked around the room (with this thread in mind), it was not obvious to
me that all the help belonged to the same family as owned the restaurant,
and so I got to wondering how they all felt about participating in such an
evangelizing enterprise. When I asked my waitress how she felt about
that, she just shrugged and said "I don't mind; that's how they feel about
it." My impression, therefore, is that she was not herself as imbued with
the evangelizing spirit as the owners (of course, she could have just
been saying that to avoid a confrontation with a customer, but my
"finding of fact" appeared to rest on reasonable inferences and is
therefore not subject to reversal as manifestly against the weight of
evidence).

What this contributes (I hope) to this discussion is that it may not
really be necessary for an employer to demand a homogeneous work
force in
order to convey a religious message or express the religious content of
the business. If I were a judge in Eugene's common-law regime of
weighing
claims for religious exemptions from generally applicable laws, I might
think about that as an indication that it would not be reasonable to
excuse an employer from anti-discrimination law based solely on the
claim
that a homogeneous work force was necessary to promote the
employer's
religious beliefs.

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