Title VII as a ban on political discrimination -- at least wherethe politics flows from the religion

[Michael deHaven Newsom]

I wonder whether Bob Jones helps, or at least Cover's analysis of Bob
Jones in Nomos and Narrative helps.  The gist of it all is, I think,
that religiously-based racism has to yield to our supposedly anti-racist
regime (Civil War Amendments and all that stuff, and if you believe
Clarence Thomas - which I personally do not, you can throw in the
Declaration of Independence as well.).  Doesn't that help the employer?
Doesn't that help analyze Title VII?

"Volokh, Eugene" wrote:

>
>
>         Hmm -- I'm not sure whether this is right.  A few thoughts:
>
>         (1)  As I read the district court's decision, it held that
> demoting someone because he expressed religiously-inspired racist
> views was religious discrimination, plain and simple.  I think this is
> mistaken, because the employer was seemingly discriminating based on
> political views, without regard to their religious origin.
>
>         Marty is right that Title VII also applies to discrimination
> based on "all aspects of religious observance and practice, as well as
> belief," but that's the *religious accommodation* requirement, which
> is more limited than the religious nondiscrimination requirement.
>
>         The full proviso, of course, says that "The term 'religion'
> includes all aspects of religious observance and practice, as well as
> belief, unless an employer demonstrates that he is unable to
> reasonably accommodate to an employee's or prospective employee's
> religious observance or practice without undue hardship on the conduct
> of the employer's business."  Demoting someone because of his publicly
> expressed racist views may indeed be demoting him for his "religious
> observance and practice" (the practice of expressing his
> religiously-inspired beliefs) -- but there the employer would at least
> be allowed to show that he cannot accommodate the practice without
> undue hardship.  It seems to me that the morale problems caused by
> coworkers' understandable anger at one's public professions of racism
> might indeed constitute "undue hardship" for the employer (though
> that's a separate and interesting question).
>
>         But the district court held that this wasn't an accommodation
> question, because it involved "pure belief" rather than "religious
> observance or practice"; and therefore demoting Peterson was
> impermissible without regard to the undue hardship inquiry:
>
>      [I]f accommodating an employee's religious observances or
>      practices would cause the employer undue hardship, those
>      observances or practices are exempted from the definition of
>      religion and can, therefore, lawfully motivate an adverse
>      employment action.  Thus, where a plaintiff seeks accommodation
>      of a "religious observance or practice," the defendant can avoid
>      liability entirely by demonstrating either reasonable
>      accommodation of the observance or practice, or that
>      accommodation would result in an undue hardship.
>
>      However, the accommodation clause of the definition applies only
>      to "religious observance[s] or practice[s]," not religious
>      belief. The language of the definition makes clear that the
>      omission of "belief" from the accommodation clause was
>      intentional. The first clause of the definition states that
>      "religion" means "observance and practice, as well as belief."
>      However, the second clause exempts from the definition
>      "observance[s] or practice[s]" which would result in an undue
>      hardship on the employer, but not beliefs. Id. Thus, under the
>      canon of statutory interpretation expressio unis, I must conclude
>      that a religious belief is never exempted from the definition of
>      "religion" under Title VII and, therefore, cannot lawfully form
>      the basis for an adverse employment action.
>
> The court is therefore going considerably beyond Marty's rationale;
> and under the court's theory, discrimination based on
> religiously-motivated political statements really is illegal,
> regardless of the hardship that the employee's political statements
> would pose to the employer.
>
>         (2)  Marty suggests a limiting principle flowing from the view
> that Title VII applies only to those "moral or ethical beliefs as to
> what is right and wrong which are sincerely held with the strength of
> traditional religious views, . . . [as that] standard was developed in
> United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United
> States, 398 U.S. 333 (1970)."  But as I understand, this only applies
> when it's not clear whether the employee's views are *religiously*
> motivated.  When the EEOC held that the vegetarian bus driver had to
> be exempted from the requirement of handing out hamburger coupons, it
> presumably rested on this theory, because the bus driver's objection
> was conscientious, not overtly religious.
>
>         But to my knowledge, if a Jewish bus driver sincerely believes
> that it's wrong for him to hand out coupons for bacon cheeseburgers,
> he wouldn't have to show that his beliefs are strongly held -- it
> would be enough for him to say that they flow from his religions.
> Likewise, as I understand it, one doesn't have to show strength of
> feeling to be able to wear religious jewelry or headgear -- just a
> religious motivated for one's actions.
>
>         (3)  If this is so, then I don't quite see how Marty's
> arguments ease my concern.  Let me ask again, if I might:   Let's say,
> for instance, that a private law school refuses to hire an applicant
> based in part on, say, the applicant's belief that abortion is evil,
> or that the nation would be a better place if women stayed in the
> home, or that the U.S. government should be willing to bomb Mecca if
> that's what it takes to defend us against Islamo-fascism.  The law
> school's rationale is simply that it would like to hire people who
> further what it sees as its mission of social justice and morality,
> and not people who hold political views that the faculty thinks are
> evil.  Is it really the case that *if* the applicant stresses that
> these beliefs flow from his religious views (e.g., his belief that
> American national self-defense is God's will), such a discriminatory
> hiring decision is illegal?
>
>         Eugene
>
> Marty Lederman writes:
>
>      Well, Eugene, you can call it "a political belief that flows from
>
>      [plaintiff's] religious views," but I don't see why the belief in
>      question is
>      necessarily "political" any more than it is necessarily
>      "religious."  In this
>      case it was religious, and for title VII purposes religious
>      beliefs may not
>      be the basis for adverse employment decisions.  Now, as I
>      understand it, your
>      principal point is that, never mind "political," the striking
>      thing is that
>      the employer was indifferent to (perhaps even ignorant of)
>      whether the belief
>      was religious or not, and would have demoted Peterson whatever
>      the source of
>      his belief.  Your incredulity, I think, is with respect to the
>      notion that
>      title VII protects beliefs because they are religiously
>      *inspired*, rather
>      than, e.g., because they concern traditionally religious *topics*
>      (such as
>      man's relationship to God, eternity, spirituality, ritual,
>      etc.).  But as a
>      statutory matter I don't think that's correct - as amended the
>      statute, which
>      defines "religion" to include "all aspects of religious
>      observance and
>      practice, as well as belief,"  plainly is concerned with the
>      religious origin
>      or role of the employee's beliefs, rather than the religious
>      subject matter
>      (just as it protects all religious observance and practice even
>      where the
>      conduct is indistinguishable from conduct that another employee
>      might
>      undertake for nonreligious reasons).
>
>      Having said that, I should emphasize that the statute does not,
>      as you
>      assume, protect any belief "that flows from religious views."
>      (Most of our
>      beliefs "flow from" religious views in some way, shape or form.)
>      As you
>      know, the regulatory gloss (29 CFR 1605.1) covers only those
>      "moral or
>      ethical beliefs as to what is right and wrong which are sincerely
>      held with
>      the strength of traditional religious views, . . . [as that]
>      standard was
>      developed in United States v. Seeger, 380 U.S. 163 (1965) and
>      Welsh v. United
>      States, 398 U.S. 333 (1970)."  Welsh actually speaks of a "sense
>      of
>      obligation" that is held "with the strength of traditional
>      religious
>      convictions."  398 U.S. at 340  (plurality opinion), and that
>      "imposes upon
>      [its holder] a duty of conscience," id..  It is not enough that
>      the belief
>      rests "solely upon considerations of policy, pragmatism, or
>      expediency," id.
>      at 342-43.
>
>      Perhaps this eases your concern somewhat.  Concededly, however,
>      this is not
>      an easy standard to apply.  As Doug Laycock notes in urging a
>      similar
>      standard for Free Exercise purposes, 7 Contemp. L. Issues at
>      735-36, "the
>      challenge is to identify that cluster of beliefs that are
>      analogous to the
>      cluster of beliefs we recognize as religious in the case of
>      adherents to
>      traditions that we can all agree are religions."  Doug
>      elaborates: "The
>      nontheist's belief in transcendent moral obligations--in
>      obligations that
>      transcend his self-interest and his personal preferences and
>      which he
>      experiences as so strong that he has no choice but to comply--is
>      analogous to
>      the transcendent moral obligations that are part of the cluster
>      of theistic
>      beliefs that we recognize as religious. The derivation of these
>      beliefs may
>      be murky, . . . but these beliefs and the sources from which the
>      nontheist
>      derived them are serving the same functions in his life as the
>      equivalent
>      moral beliefs and sources of derivation serve for theists. The
>      nontheist may
>      experience natural law or the equality of all humans as 'a
>      transcendent
>      authority prior to and beyond the authority of civil government'
>      [quoting
>      Michael McConnell], just as the theist experiences divine command
>      or
>      religious tradition."
>
>      Marty Lederman
>
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