Religious Discrimination

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Eugene Volokh distinguishes between discrimination because of someone's religious action and discrimination because of someone's non-religious actions based on one's own disapproval of that action for religious reasons. If I refuse to hire a Muslim, that's illegal. If I fire someone for eating pork, when the pork eating is for a religious ritual of some sort, then it's illegal. In this case, a woman ate pork on the grounds of the Muslim company she worked for. She didn't do it for religious reasons, though. She was just eating pork. It was entirely secular. Volokh says there's nothing illegal about that, because no one's religion is being discriminated against. It's a secular action that's being discriminated against, and he says that's legal (as long as it doesn't also discriminate against the person for being part of a different protected group, e.g. a racial group).

Two things surprised me here. One is that it isn't agaisnt the law to fire someone for being gay. He's a little uncareful here, because he's talking about actions, and being gay isn't an action. It's a state of being. Engaging in gay sex is an action, so if I fire someone for having gay sex there's nothing illegal about it. He thinks it may still be immoral, but the law can't stop me. I didn't think it was legal anymore to refuse to allow someone to rent from you simply because the person is gay, but perhaps it still is. Second, isn't this structure really easy to abuse? It's hard to argue that eating pork is required by one's religion, and having gay sex is also at least non-obligatory in every religion I've ever heard of, but religions can form easily, and lots of practices that might be a good reason for someone not to want you working for them but that are legal can then be declared part of the religion. I don't like how easily this can lead to discrimination charges if someone wants to go to the effort to sue over something they can concoct a religion to require.

10 Comments

As I understand it, it wasn't just that she ate pork, but that she ate pork at work. As far as I know it's not illegal to forbid sexual activity, even homosexual activity, at work.

Interesting questions and very convoluted. Personally I don't think rights should be protected ONLY if they are connected with a person's religion. I think non-relgious people are discriminated against more than religious people are simply because they can't argue that they must do (or not do) something because of their religion.

As for actions at the workplace - I think employers should be allowed to fire people for actions that interfere with one's job performance or the ability of one's co-workers to do their jobs or public actions that reflect badly on the company to an extent that causes the company to lose business. If the employee in question was eating pork on her lunch break in an area where she would not be seen by customers or clients then it's no concern of the company and they had no right to fire her.

We already have constitutional protection of rights that have nothing to do with religion. The right not to be killed has nothing to do with religioun. Aside from that, discrimination on racial grounds that isn't also on religious grounds is unconstitutional. So it's not as if religion is the only ground for claiming violation of one's constitutional rights.

Even so, I think you have a point. It may well be that some behavior that's not based in a religious value of any sort is still worth protecting. That's exactly what some people are claiming about gay sex, gay marriage, owning assault weapons, aborting your children before they're born, selling pictures of naked people, saying hateful things about people because of their race or some other fact about them, etc. One thing that I expect to happen in my lifetime is that the popularity of vegetarianism will take hold and lead to people pursuing laws against killing animals for meat. That will then join the list.

None of these things need come from religious views, but some are arguing in each case that the action needs protection from those who would seek to prevent it. The case I gave was different, though, No one was stopping her from eating meat. She just couldn't do it at her job and retain her job. She's claiming discrimination, but it's not religious discrimination. Should there be laws against vegetarians owning a business and not hiring meat-eaters (or at least not hiring meat-eaters who will eat meat on the job)?

The day they outlaw meat is the day I become a criminal. Often one person's rights are in conflict with another person's rights and so there has to be some kind of reasonable balance. Did the woman's act of eating pork "on the job" actually harm her employers in some way or did it just offend them? No one should be protected from being offended unless everyone is protected from being offended and since that's clearly impossible I think we should always err on the side of freedom. Of course that doesn't mean that people should be free to incite a riot or to actively encourage discrimination against minorities. These are very difficult issues because, as I said, rights are often in conflict. Each case has to be handled with careful and unbiased consideration of the specific situation.

But why should a company not be able to hire the people they choose? We have laws against hiring only white people out of a desire not to hire black people. We don't have any against hiring only vegetarians out of a desire not to hire meat-eaters. I'm not sure we should seek to implement every such law we can to prevent that sort of thing.

I'm afraid I'm having a little trouble following your reasoning. Are you for or against anti-discrimination laws?

A company should be able to hire the people they choose up to a point. It should be based on what is good for the business, not on the religion or personal convictions of the owners or managers.

I don't know what I think. I'm giving arguments that different people might take, and I'm asking questions.

It is very hard to state a position (or write a law) that covers every possible situation. Someone might say, "I believe companies should have the right to decide who to hire or not to hire, without interference from the government," and it sounds very reasonable but it can lead to some ugly things that we would like to think we've left behind us. And now we have all sorts of added complications with everyone being so uptight about religion these days.

We also have stuff written into the Constitution that won't allow it along racial lines.

I'm with you on this one Lynn and will go you one further; religion of every sort causes more mischief than any other single force in the world since it always is one persons views against anothers. At 77 YOA I've finally dropped it like the bad habit I think it is, I have never heard a single good logical reason to believe that religion has anything to offer anyone except some sort of mind numbing self absorbing certitude that has no real foundation.

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