BFOQ and Bookstores

[Paul Finkelman]

Steven Jamar writes:

> Why can I use "On a Clear Day You Can See General Motors" or "How to Skin Friends and Influential People" (joke) or "Everything I Ever Really Needed to Know I Learned in Kindergarten" or "The Seven Habits of Highly Effective People" as my business guide, but not the "Bible" or the "Torah" or the "Koran" or "Dianetics" or the "Bhagavad Gita"?

Surely you can use the Torah, Bible or whatever as a business guide; what you should not be able to do is force your employees to accept these rules in their non-business life; that is, you can say, we "never lie" here in our store because that violates God's law; or you can't drink coffee on the job because we don't allow caffein; or we are closed on Friday (Sat. Sunday) because of God's commandments, so don't come to work that day.   But you cannot, I think, tell the employee what to do off the job, what to believe in off the job, or refuse to hire someone who does not believe what you believe.

Jabar asks:  "Are we so unable to sort out garden-variety bigots from values-based
decisions?  Surely there will be clear cases of each as well as mushy
middle cases.  But that is true in all aspects of the law."  I think the answer is, yes, we cannot sort these out because quite frankly, the history of this country, and the present day policies of a good many people, show we cannot.

Furthermore, the public policy issues here are really important.  If we allow the "Witnessing Gym" then pretty soon everyone in the country will be employed by a co-religionist, shop at a store owned by a co-religionist (or non-religionist) and I suppose have restrictive convenants (no Jews allowed -- and we have been there, done that).  Such a policy will lead us straight to Bosnia and Serbia, to Ghettoization on the basis of religion, and public support for bigotry.


--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu