BFOQ and Bookstores

[Steven D. Jamar]

Paul Finkelman wrote:

> ok; and where do you draw the line?  Can members of the "white people's church"
> refuse to serve blacks at their restaurants?

I think perhaps you are under-appreciating the distinction between status-based
and values-based discrimination.  Though one can semantically transmute
status-based into faux values-based, that simple dodge - like your example below -
is a simple case.  Some sorts of status-based discrimination will not be allowed
period.  And this includes discrimination based solely on the status as a member
of a religious group.

But the interesting question, and one significantly more subtle in my opinion than
your blunt proposal to ban all religious-related employment discrimination or
public accommodations discrimination (BTW, has anyone suggested that public
accommodations discrimination be allowed on the basis of values?  I don't recall
it be suggested), is what to do about the religious secular employer whose beliefs
require things like "not being unevenly yoked" or who doesn't separate the world
into preying on Monday and praying on the Sabbath.  I simply would not ignore that
employer's desires and treat him or her as just another bigot.

So where do I draw the line?  I don't draw a bright one for the religious secular
employer engaging in values-based or belief-based employment decisions.  Very few
employers qualify as being in this category in the first place.  And among those
who do, many do not discriminate among employees on the basis of these values,
often because the values include tolerance, equality, and inclusion.  And for
some, evangelism - of employees too. (This creates other discrimination problems,
of course, at least according to the courts.)

> Why do you think "gehttozation" will take place if people are *prohibited* from
> discriminating on the basis of religion, race, and ethnicity?  I do not, I
> repeat for the third or fourth time, DO NOT treat as unimportant sincere
> religious practice in running a business.  I know many people who do just that.
> The point is, that you can be sincerely religious and at the same time NOT
> practice discrimination.

But only if you adopt your idea of what "sincerely religious" means.  You seem to
reject the idea that the content of the religion could include anything but what
those "right thinking" people you know do.  The fact that some sincerely religious
people believe things which are quite different from what you think they should
ought not, in my opinion, control the analysis.  What about those whose religious
beliefs are different from that?  Those whose religious beliefs require that they
have only the same kind of believers associated with them?

>
>
> I would throw back the questions to Mr. Schutt: Why do yo treat as unimportant
> the idea that we should not allow people to discriminate in hiring, firing, and
> service?  Why do in effect, defend bigotry in hiring?  Why do you presume that
> no one but a member of the "right church" can possibly do a job, such as
> recommending books to buy, or shelving them?

Once again, you are defining the job in terms of the business of business is
business.  If the job is defined as the business of the religious secular business
is witnessing, then there is no way that I can recommend books in the same way as
a believer can.  I cannot say, "Oh, if you are searching for the truth, here is
the revealed word of god."  And I would recommend a different book on the
historigraphy of the Bible than believers do.  And I would recommend a number of
different books about evolution than the young-earthers would.  It isn't the same.

> Why do you assume that only the
> member of the right church can wait on tables correctly?
>

It isn't about a member of the church per se, it is about values.

>
> This is only so if the employeer refuses to accept people other than those in
> the employers group. Hence, the employer practices discrimination.  This has
> always led to ghettoization.

Only if widespread among most religious groups - which is not the case in
employment.  Or if it is practiced among a limited set of the population, then
self-ghettoization of the discriminating group may occur - like Mormons moving to
Utah.

I would like some of the more insular born-again, fundamentalist Christians who
view me as damned to think otherwise and to act more broad-mindedly and to read
more widely and to expose their children to other ideas and all sorts of things.
But I would not require them to do so.  And I would not force them to  hire me in
a business they are running as a witness for their god.

Though, it still strikes me as quite bizarre that I was once hired as a lawyer by
a quite fundamentalist group even though I told them of my personal religious
beliefs.

--
Prof. Steven D. Jamar, Director LRW Program               vox:  202-806-8017
Howard University School of Law                           fax:  202-806-8428
2900 Van Ness Street NW                      mailto:sjamar at law.howard.edu
Washington, DC  20008          http://www.law.howard.edu/faculty/pages/jamar

"Nothing worth doing is completed in our lifetime; therefore, we are saved by
hope.  Nothing true or beautiful or good makes complete sense in any immediate
context of history; therefore, we are saved by faith.  Nothing we do, however
virtuous, can be accomplished alone; therefore, we are saved by love."

Reinhold Niebuhr, The Irony in American History (Scribners 1952)