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I'm ambivalent about this case. On the one hand, I think that AT&T should be able to enforce a "progressive" antidiscrimination policy if it so desires, without special accommodations for religious employees. The same conservatives who are against requiring or even allowing private companies to engage in special treatment for minority employees see to alway want the government to require them to engage in special treatment for religious employees in the form of "reasonable accommodations." We live in a pluralistic society, and if religious employees don't like AT&T's employment policies, there are many, many other places they can work.
On the other hand, the whole notion of requiring employees to swear loyalty oaths to antidiscrimination policies, to require not just nondiscriminatory actions but beliefs, seems to have originated with state action. Even if AT&T's specific policies weren't mandated by the government, they can be seen as the outgrowth of years of lawsuits and EEOC actions trying to require employers to only promote managers who "believe in" certain policies. As I wrote in a related context in "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws" (http://mason.gmu.edu/~dbernste/book):
As a condition of settlement of antidiscrimination lawsuits, the EEOC and private litigants are increasingly demanding that defendant corporations agree to have managers strongly consider supervisors' vigilance in implementing antiharassment policies when evaluating those employees' performance. Even companies that have not been sued are adopting this policy to attempt to avoid future lawsuits. One common criterion used to judge an employee's zealousness in enforcing antiharassment policies is whether the employee has expressed his personal support for the policies. An employment law expert asserts that managers must "communicate to their employees that they agree with, personally believe in, and will enforce the harassment policy." Yet antiharassment policies are often controversial within a company, especially when they stifle speech or prohibit dating among coworkers. Employment law expert Walter Olson writes that unless the trend toward requiring absolute fealty to internal antiharassment policies is reversed, "those who dissent from the official line, harbor doubts or qualms about it, or for any other reason prove unwilling to announce their enthusiasm for it, will sooner or later find themselves excluded from positions of responsibility in the American corporation."
Professor David E. Bernstein
George Mason University School of Law http://mason.gmu.edu/~dbernste blog: http://volokh.com/index.htm?bloggers=DavidB *********************************************** My latest book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, has just been published *********************************************** |
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