Posted by Eugene Volokh: Religious discrimination: A woman has [1]apparently been fired by a Muslim-owned company because she ate pork on the premises. Is this illegal religious discrimination?
No, just as a Christian-owned company's firing an employee because he is a homosexual is not illegal religious discrimination. Antidiscrimination laws bar people from discriminating based on the employee's religion. An employer may still discriminate based on their employee's conduct -- food preferences, sexual preferences, and the like -- because of the employer's beliefs, whether those beliefs are religious or secular. If the employee's practice were inherently religious (e.g., she was praying in a way the employer thought was the wrong way), then an employer couldn't discriminate based on that. And if the employee saw her own conduct as religious -- for instance, if she felt a religious obligation to eat pork -- then the employer would have a duty to reasonably accommodate that conduct. But if the employee was engaging in essentially security conduct, for secular reasons, the employer may fire her for that (unless some other law gets in the way). That the employer was motivated by his own religion doesn't make the firing illegal. (True, had the woman been a good Muslim, she wouldn't have eaten the pork and hadn't been fired -- but the same is true if she had been a good Jew, or a secular vegetarian, or just someone who didn't eat pork at the employer's office. She was being discriminated against based on her nonreligious actions, not based on her religious beliefs.) There are a couple of good reasons for this. First, a contrary rule would itself be religious discrimination. If a secular employer is free to fire an employee for violating the employer's secular views about morality or decency (e.g., a secular employer fires an employee for adultery, for homosexuality, or for eating dog meat, which the employer finds disgusting or immoral), that's not illegal religious discrimination. There's just nothing religious there. Likewise, a religious employer should be equally free to fire an employee for violating the employer's religious views about morality or decency (e.g., for adultery, for homosexuality, or for eating pig meat). Second, for deeply religious employers, most of their decisions may be influenced by the employer's religious faith. If an employer fires an employee for treating coworkers unfairly, for being lazy, or even for theft, the employer's reasoning might be colored or even dictated by the employer's religion. If such religious influence made the employer's action into religious discrimination, religious employers would be highly constrained (again, in ways that secular employers would not be). Now the firing may well be foolish, arbitrary, or unfair in the eyes of non-Muslims (or even of many Muslims), just as many people find firing based on sexual orientation to be foolish, arbitrary, or unfair. It may be the sort of thing that very few secular employers would do. But as a general matter, employers are still legally allowed to fire people even based on foolish, arbitrary, and unfair reasons, so long as they're not discriminating based on the employee's race, religion, sex, and other such attributes. So it seems that this employer was acting within its legal rights. [2]Jonathan Rowe has a similar analysis. References 1. http://www.local6.com/money/3614199/detail.html 2. http://jonrowe.blogspot.com/2004/08/is-this-religious-discrimination-woman.html _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
