Goldman Sachs firing
VOLOKH at mail.law.ucla.edu
Tue Feb 15 16:57:44 PST 2000
Hmm -- given the language of the statute, the cases that I've read,
and the logic of antidiscrimination law, I'm prepared to say that the
reading I described is an accurate statement of the law as it is, and the
occasional other decisions are inaccurate statements.
I am of course prepared to be persuaded to the contrary, if I see
enough cases that do indeed hold that it is illegal religious discrimination
for an employer to discriminate based on an employee's secular conduct that
the employer has religious reasons for disliking. I'd still think that
those cases are mistaken (and even unconstitutional) interpretations of the
statute, but if there are enough of them I'd have to admit that they indeed
are the law. Steve, can you point me to the leading such cases?
Note that the hostile environment cases, though in my view often
wrong, are a different story: They generally involve conduct that an
employee believes creates a hostile environment for him based on *the
employee's* religion (or lack thereof). Note also that the Goldman Sachs
case strikes me not as discrimination based on the employee's different
*beliefs*, but on the employee's *conduct* -- and not religiously motivated
conduct, so the religious accommodation provisions do not come into play.
> -----Original Message-----
> From: Steven D. Jamar [SMTP:sjamar at LAW.HOWARD.EDU]
> Sent: Friday, February 11, 2000 5:21 AM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: Goldman Sachs firing
> Though Eugene's statement of the law may be how it should be, it is not a
> statement of how courts have applied it. In many cases the courts held
> that the
> employer created a religious environment that was hostile to an employee
> differing beliefs and so the employer's religion has come heavily into
> Mere expression of religious beliefs by employers have been held to
> Title VII.
> As a matter of text, Title VII does provide that it is illegal for an
> to discriminate against an individual "on the basis of such individual's .
> . .
> religion . . . " which makes it seem that the most relevant factor is the
> employee's beliefs, not the employers. But, if the employee believes
> different from the employer (e.g., extra-marital sex is ok is believed by
> employee, but not by the employer), then this difference of belief, it
> seems to
> me is the important thing - and the employer would be firing the employee
> because the employee's religious belief differs from the employers - and
> so it
> would indeed be because of the "such individual's religion."
> In sum, the distinction between whose belief is the basis of action can be
> collapsed into pure semantics.
> This semantic slight of hand is one of the reasons I proposed a more
> approach in my article on the subject in which I suggest that the
> interests of
> society (acting through law), the employer, and the employee all be taken
> account in these religious accommodation cases.
> Peliasberg at AOL.COM wrote:
> > Some states, or at least California, are addressing situations like this
> > legislation. Recently the Legislature passed a law forbidding employers
> > firing employees for their "private" off-work activities. I have not
> > the statute, I only read about it. I am not sure of its exact language,
> > whether its language would cover an intimate relationship between
> > Peter
> Prof. Steven D. Jamar, Director LRW Program
> Howard University School of Law
> vox: 202-806-8017 fax: 202-806-8428
> "There comes a point where this Court should not be ignorant as judges of
> we know as men."
> Felix Frankfurter, Watts v. Indiana, 338 U.S. 49, 52 (1949)
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