To follow up and agree with Eugene's argument, it seems to me that the text of Title VII requires that the employment action, to give rise to liability, must be based on the employee's religion rather than the supervisor's religious motive: the text prohibits discrimination "against any individual . . . because of such SDU_56individual's . . . religion." 42 U.S.C. 2000e-2(a) (emphasis added). I discuss both the text and arguments about statutory policy concerning such cases in 22 Harv. J. L. & Pub. Pol'y 959, 999-1002 (1999). Tom Berg
_____ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tue 8/23/2005 5:42 PM To: Law & Religion issues for Law Academics Subject: RE: Two kinds of purpose inquiries Venters is pretty ambiguously reasoned: At times it uses language similar to what Michael quotes, but at times it stresses that the issue is *the employee's* religious beliefs rather than the supervisor's -- "what role if any *her religion* (or Ives' perception of her religion) played in her discharge is a question that the jury must sort out" (emphasis added). This ambiguity was easy because Venters' allegation was that the supervisor was upset at her failure to convert to his religion, and not just upset at her secular behavior. But it seems to me that the Title VII rule must focus on the employee's religion, not the supervisor's (or else it would itself become seriously religiously discriminatory). If an employer fires adulterous employees (regardless of their religious beliefs), or racist employees (regardless of their religious beliefs), or for that matter gay employees (regardless of their religious beliefs), that won't be a Title VII violation, regardless of whether the employer was motivated by his religious morality, his secular morality, or his secular business judgment. Likewise, if an employer fires Catholic employees, that will be a Title VII violation, regardless of whether the employer was motivated by his religious disagreement with Catholicism, his secular moral disagreement with Catholicism, or his secular business judgment. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ] On Behalf Of > Michael MASINTER > Sent: Tuesday, August 23, 2005 3:30 PM > To: Law & Religion issues for Law Academics > Subject: RE: Two kinds of purpose inquiries > > > Do Title VII and the religion clauses (the latter of course > applied only to governmental employers) permit an employer to > fire an employee for engaging in conduct that offends his > religious beliefs? For an extreme example that answers the > question "no," see Venters v. City of Delphi, 123 F.3d 956 > (7th Cir. 1997). Recounting the evidence that Ives (the > supervisor) fired Venters (the employee) based on Ives' > religious objections to Venters' lifestyle, the court wrote: > > "Matters came to a head on February 14, 1994, when Ives > called Venters into his office and asked if she had attended > church services the previous Sunday. When Venters admitted > that she had not, Ives told her that she had a choice to > follow God's way or Satan's way, and that she would not > continue working for Ives if she chose the latter. Ives then > began talking about Venters' sinful life and the disgust he > felt toward her because of her obstinate refusal to be saved, > indicating to Venters that he believed she was repeating a > cycle of abuse she had experienced as a child with her > family. Ives told Venters that after having observed her > behavior, he became convinced that she had had sexual > relations with family members and perhaps even animals, and > that she was sacrificing animals in Satan's name. Ives also > suggested to Venters that suicide would have been preferable > to her continuing a life of sin, and that he would not allow > the "evil spirit that had taken [Venters'] soul" to continue > to live in the police department." > > The court describes the role of the religion clauses (and > later Title VII similarly): > > "It is readily apparent from this rough sketch of the two > clauses that coercing a person to conform her beliefs *or her > conduct* to a particular set of religious tenets can run > afoul of both the establishment as well as the free exercise clauses." > > The court focused throughout its opinion on Ives' religiously > motivated objections to Venters' conduct; with sufficient > evidence from which to conclude that Ives used conduct as a > proxy for religion faith, firing Venters because of her > conduct was firing her because of her failure to conform her > conduct to his religious beliefs; the court held that would > violate both Title VII and the religion clauses. > > > Michael R. Masinter 3305 College Avenue > Professor of Law Fort Lauderdale, FL 33314 > Nova Southeastern University (954) 262-6151 (voice) > Shepard Broad Law Center (954) 262-3835 (fax) > [EMAIL PROTECTED] Chair, ACLU of Florida > Legal Panel > > On Tue, 23 Aug 2005, A.E. Brownstein wrote: > > > > > I don't want to belabor the point since no one else is joining this > > thread > > --- but let me take one more shot at explaining why I don't > get Eugene's > > point -- despite his very good efforts to help me > understand his position. > > Then I'll give him the last word and end the dialogue. > > > > Eugene writes: > > > > >I think it's important to distinguish, as the subject line > suggests, > > >two kinds of purpose inquiries. The "primary purpose" > inquiry under > > >Epperson/Aguillard/etc. asks whether the primary goal of the > > >legislature was motivated by a desire to further religion. > (emphasis > > >added) The > > >intentional discrimination inquiry under the Equal > Protection Clause, > > >the Free Exercise Clause, and so on asks whether the > government actor > > >intended (whether primarily or not) to treat a particular group > > >worse. > > > > Why is the primary purpose analysis under the Establishment Clause > > different than the purpose analysis > > under Equal Protection or Free Exercise? What's different > about the purpose > > of furthering religion > > and the purpose of treating a particular group worse? Is > the relevant > > difference between "furthering" and "treating worse" > > or is it the difference between a "group," say Blacks or > Jews, and a > > "belief system", say religion, Christianity or Judaism. > > > > I don't think the distinction between "furthering" and "treating > > worse" is > > controlling. First, the EPC applies to racial favoritism as > well as racial > > mistreatment. If a neutral law is enacted because it > disproportionately > > benefits Whites, it is as unconstitutional as a law that is > enacted because > > it disproportionately > > burdens Blacks. > > > > Second, I think the religion clauses should apply with equal force > > whether > > the school board is vetoing material solely because it is > inconsistent with > > Christianity (furthering), for example, or is vetoing material > > solely because it is consistent with Christianity (treating > worse). (I'm > > not talking about religious doctrine itself, which would be > evaluated under > > an effects test, or a content test, but rather material > that is neutral but > > resonates with or against religious beliefs -- and > therefore would be often > > evaluated under a purpose analysis.) Eugene, are you saying > that it would > > be OK to consider purpose if the Board was vetoing material > solely because > > it was consistent with Judaism -- treating worse (e.g. the > school says > > teachers can't say anything bad about eating pork because > it is indirectly > > consistent with Jewish beliefs), but it is unacceptable to > consider purpose > > if the Board is vetoing material inconsistent with Judaism > (furthering). > > > > If the focus is on the difference between a group and a > belief system, > > I > > don't see why that distinction should matter either. There > is a close > > connection between religious beliefs and the community or > group holding > > those beliefs. A law benefiting or burdening the former is > likely to > > benefit or burden the latter as well. If a neutral law is > enacted for the > > express purpose of making it more difficult to practise a > particular > > religion, I think that law is unconstitutional. I don't > think the State > > can avoid the constitutional challenge by arguing the law > is not intended > > to make Catholics worse off, but is just intended to > suppress Catholicism. > > > > As for Eugene's Title VII analogy, I think I understand his > point. But > > Title VII doesn't encompass the range of equal protection > doctrine. When we > > look at neutral state action that can be challenged on > equal protection > > grounds, we see it raises the exact same kind of > application problems > > Eugene wants to avoid. Eugene argues that under Title VII: > > > > "There's no need to disentangle, for instance, an > employer's religious > > opposition to > > adultery from his secular objections to adultery from his business > > objections to adultery -- the employer is perfectly free to fire all > > adulterers, regardless of the religiosity of his underlying > motivation. > > If did ask this, then it would be like the > Epperson/Aguillard primary > > religious purpose test." > > > > But what about an equal protection challenge to a neutral land use > > regulation -- say a minimum lot size requirement. Don't > courts have to > > disentangle environmental purposes of the ordinance, e.g. > lower density > > reduces environmental impacts (like secular objections to > adultery), from > > economic purposes for the ordinance, e.g. keeping property > values high > > (like business objections to adultery), from racially > exclusionary purposes > > of the ordinance, e.g. the higher the cost of housing, the > fewer Blacks > > will be able to afford to buy housing in town (like > religious objections to > > adultery). The city isn't deliberately treating blacks > differently than > > whites in the Title VII sense. The land use regulation is > facially neutral. > > But the city isn't free to regulate the size of lots > regardless of its > > purpose. Isn't the purpose inquiry here as complicated as > the Establishment > > clause inquiry. > > > > Eugene argues that the question under the EPC "is simply > whether the > > government deliberately treated one group worse because of > its race, > > religion, and so on." Why is this so different than saying that the > > question in Establishment Clause cases is simply whether the > > government deliberately treated one subject of study better > or worse > > because of its consistency or inconsistency with religious beliefs? > > > > You can take it from here. Eugene. Over and out. > > > > Alan Brownstein > > UC Davis > > > > > > > > > > > > > > > > > Note, incidentally, that the inquiry there isn't into > > >whether the government actor has a "racist purpose": A > legislature > > >that enacted a policy aimed at burdening blacks but only > because it > > >wanted to diminish social tension coming from the white majority > > >wouldn't be acting with a racist purpose. Likewise, the judge in > > >Palmore v. Sidoti probably wasn't motivated by a racist > purpose. The > > >question is simply whether the government deliberately treated one > > >group worse because of its race, religion, and so on. > > > > > > Again, consider my Title VII analogy: Title VII now asks > > >whether an employer treated someone worse because of his race, > > >religion, etc. It doesn't matter whether the long-term > goal was (for > > >instance) to attract religiously bigoted customers; if in > order to do > > >this, the employer deliberately treated an employee worse > because of > > >his religion (e.g., fired a Catholic employee), the employer is > > >liable. That's like the Equal Protection Clause/Free > Exercise Clause > > >test. > > > > > > Title VII does not ask whether the employer's > actions were > > >primarily motivated by his own religion: There's no need to > > >disentangle, for instance, an employer's religious opposition to > > >adultery from his secular objections to adultery from his business > > >objections to adultery -- the employer is perfectly free > to fire all > > >adulterers, regardless of the religiosity of his underlying > > >motivation. If did ask this, then it would be like the > > >Epperson/Aguillard primary religious purpose test. > > > > > > It seems to me that these tests are quite > different, and the > > >Epperson/Aguillard test is considerably harder to apply than the > > >Equal Protection Clause/Free Exercise Clause test. > > > > > > Eugene > > > > > >Alan Brownstein writes: > > > > > > > I don't understand why your argument would not undercut any > > > > purpose analysis for any doctrinal area. If the government can > > > > adopt a policy endorsed by the majority to serve impermissible > > > > purposes (whether it involves advancing > > > > religion, making it harder for blacks to get government jobs > > > > or to move > > > > into a community, pre-condemnation down zoning, or any > > > > constitutional area > > > > where purpose analysis has been applied) and then > explain it, the > > > > government's purpose, as the constitutionally legitimate one > > > > of making the > > > > majority happy, and thereby getting themselves reelected -- > > > > and that is > > > > sufficient to avoid the constitutional challenge -- then it > > > > seems to me > > > > that purpose analysis can always be circumvented. All the > > > > government ever > > > > has to do is say that its purpose is to do what the majority > > > > wants. There > > > > is certainly an argument to that effect. But it extends way > > > > beyond the > > > > religion clauses. > > >_______________________________________________ > > >To post, send message to Religionlaw@lists.ucla.edu > > >To subscribe, unsubscribe, change options, or get password, see > > >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > > > > > >Please note that messages sent to this large list cannot > be viewed as > > >private. Anyone can subscribe to the list and read > messages that are > > >posted; people can read the Web archives; and list members > can (rightly or > > >wrongly) forward the messages to others. > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > > > > Please note that messages sent to this large list cannot be > viewed as > > private. Anyone can subscribe to the list and read > messages that are > > posted; people can read the Web archives; and list members can > > (rightly or wrongly) forward the messages to others. > > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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