Title VII and gays

[Andrew Koppelman]

I realize that this thread petered out a week ago, but I've been out of
town and have only just been able to rejoin the list.  I'd like to comment
on Eugene's most recent posting on this subject.


I will be fascinated to learn the limits of the principle of accommodation
that Eugene is proposing.  Title VII requires employers to accommodate
religious practices.  Seeger/Welsh requires accommodation for nonreligious
practices as well.  Add to this the very sensible principle (to which, as
Eugene correctly pointed out, I overlooked in my earlier post) that
religious practices do not cease to be religious merely because they are
not morally obligatory.

It seems to follow that employers have a duty under federal law to
accommodate any practice at all of their employees, whether or not the
employees feel obligated to engage in the practice, so long as that
practice does not impose an undue burden on the employer.  If this is
right, then any discharge or refusal to hire or promote, that rests on
behavior of the employee, presents a colorable federal suit.  How readily
the suit may be pursued would appear to depend on whether the employer or
the employee has the burden of proof on the undue burden issue.  (I'm away
from the office and can't look it up; does anyone on this list know the
answer?)  If the employer has the burden of proof, then any discharge of
any employee for any reason anywhere in the United States will give rise to
a federal suit that, at a minimum, will survive a motion for summary
judgment.  The rule of employment at will is effectively abolished.  Any
time an employer makes an employment decision adverse to an employee or
applicant, he will have to justify his actions in court.

Eugene, did you mean to go quite that far in your novel interpretation of
the statute?

I'm inclined to think that, if Seeger/Welsh is right, it can't go beyond
matters of moral obligation, even though religion itself is not confined to
matters of moral obligation.  Otherwise, the category "religion" will
become meaningless; via the logic of Seeger/Welsh, it will collapse into
anything that anyone ever wants to do for any reason.   (A caveat:  I have
not Shepardized Seeger or Welsh, and so don't know how those cases have
been interpreted by the lower federal courts.  If anyone reading this is
familiar with the relevant case law, I (and, doubtless, the other readers
of this list) would appreciate being educated.

Eugene Volokh wrote:

>    Andy, it seems to me, is (very graciously) suggesting that Title
>VII's duty of religious accommodation doesn't apply to those
>religious practices that were "voluntarily" chosen (i.e., not
>compelled by one's religion in the first place), even when, once
>chosen, they are religiously binding.
>
>    But could that be right?  Say a Catholic nun goes to work for an
>employer, and the employer insists that the nun can't wear her nun's
>habit.  Surely the nun must, under Title VII, be accommodated unless
>the employer can show undue hardship.  As I understand Catholic
>teaching, she wasn't *required* to join an order; but once she joins
>the order, she is required to wear the habit (again, maybe I have my
>Catholic rules wrong, but assume this is so for purposes of this
>hypo).
>
>    Likewise, say a private coed secular school requires all its
>employees to send their kids to that school.  One of its employees
>adheres to a religion that requires him to send his kids to a
>sectarian school or to a single-sex school.  Surely the fact that his
>religion didn't require him to have kids doesn't eliminate his
>religious accommodation claim -- once he undertakes the "voluntary"
>choice to have kids, he is now under a religious obligation that must
>be accommodated.
>
>    So with the homosexual employee in a committed relationship.  In
>all three examples, the original decision was not religiously /
>deeply morally required (though it may have been not just tolerated
>but actually motivated by the relevant religious / moral system).
>But once the decision is taken, and the religious / moral obligation
>is incurred, the employer must accommodate it unless the employer can
>show undue hardship.  Right?  Or am I missing something?
>
>
>
>Andrew Koppelman writes:
>
>> This is an interesting argument.  It is also, however, one of those rare
>> occasions when I'm not persuaded by one of Eugene's arguments.  Even if the
>> Welsh/Seeger principle applies to Title VII (which I hadn't heard before
>> now), it doesn't follow that we have "gone a considerable way to a
>> conclusion that Title VII bars discrimination based on sexual orientation."
>> The Welsh/Seeger principle, as I understand it, only applies when a person
>> feels morally constrained, in a way that resembles the way that a religious
>> person feels constrained.  Eugene has cleverly devised a situation in which
>> a person feels morally constrained to engage in homosexual sex.  Many
sexual
>> choices, though, don't reflect moral constraint, but rather moral
>> permission.  (Relationships often develop to a point where one is morally
>> obligated to at least try to sustain them, as in Eugene's hypothetical, but
>> even in these cases, one was not under a moral obligation to enter those
>> relationships.  Lifelong celibacy isn't per se immoral.)
>>
>> There is another Title VII argument that would dictate the general
>> protection that Eugene suggests.  That is the argument that discrimination
>> on the basis of sexual orientation is a form of sex discrimination:  if the
>> boss fires Ricky because he's sleeping with Fred, while the boss wouldn't
>> fire Lucy if she were having sex with Fred, then Ricky is being
>> discriminated against because he is a man, that is, on the basis of sex.
>> But that argument has been rejected by every court that has heard it.
Stare
>> decisis has a lot of weight in statutory interpretation, so I think this
>> argument is dead.  If you want gays to be protected from discrimination,
you
>> had better amend the statute.
>>
>> >Eugene Volokh wrote:
>> > . . .
>> >>     So imagine the following:  An employer learns that an employee
>> >>is engaged in a homosexual relationship.  The employer is about to
>> >>fire him, but the employee says:
>> >>
>> >>     "I firmly believe that it would be morally and ethically wrong
>> >>      for me to abandon -- or even to stop having sex with -- my
>> >>      partner, who is the love of my life.  I do not believe in
>> >>      God, but I sincerely hold this belief with the strength
>> >>      with which many hold their deepest religious views.
>> >>      Continuing to employ me would not impose an undue hardship
>> >>      on you.  I therefore demand that you accommodate my conduct
>> >>      by not firing me for it." . . .
>




________________________________________

Andrew Koppelman
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
________________________________________