The section 702 exemption, and the virtually identical section 204 of the EO, allows employers to prefer employees "of a particular religion." There is a serious question, I think, whether an employee's noncompliance with particular tenets, or conduct rules, renders an employee not "of a particular religion," as *Little v. Wuerl* held. Many might accuse me of being a less-than-perfectly-observant Jew, and a Hassidic employer could certainly say: "I won't hire Lederman, since he's not Hassidic, and we hire only Hassids." But it would sure take some gall -- and be legally quite dubious -- for an employer that hires "Jews only" to refuse to hire me on the ground that I am not "of the Jewish religion."
But be that as it may, let's assume *Little* is correct, and that a qualifying employer -- which, btw, most certainly does *not *include most government contractors who happen to be religiously motivated -- can generally insist upon tenets and conduct compliance by its coreligionist employees. Even so -- and this is the critical point --* it cannot do so when that tenets or conduct rule itself violates another of Title VII's prohibitions, other than the ban on religious discrimination*. If the religion teaches that women can't work out of the home, or that men should receive higher wages because they are heads of households, or that adherents should not sue their employers for discrimination, or that it sinful for women but not men to have sex before marriage, or that it is sinful to marry people of a different race or religion, etc., the qualifying employer *cannot *invoke the 702/204 exemptions to justify penalizing its employees for violating such rules. (And all the cases confirmed this conclusion, at least as of the time I worked on that 2000 OLC opinion -- I haven't checked lately to see whether there have been any contrary holdings, but I've never seen one cited.) *Boyd *is consistent with this: The court there held that an employer -- and this is true not only of qualifying religious employers! -- can fire employees for engaging in adultery (if memory serves), because "adultery" is *not a protected title VII characteristic*. But the court there noted (again, if my memory is accurate) that if the employer's religion made it sinful for only one sex to engage in adultery, then acting to enforce that tenet would be a form of prohibited sex discrimination to which the 702 exemption did not apply. Similarly, employers today arguably can, as far as federal law is concerned, "exclude employees . . . based on conduct that . . . expresses one’s sexual orientation and gender identity," but that is because such characteristics have not yet been added to the prohibited grounds of employment action) race, sex, retaliation, etc., listed in title VII. (Actually, the EEOC has recently opined that sexual orientation discrimination *is *a form of sex discrimination prohibited by T7 -- but that's a subject for a whole 'nother thread.) *Any* employer can discriminate against gays and lesbians (assuming the EEOC view does not prevail and Congress does not enact ENDA) -- they don't need the 702 exemption, because there's nothing from which they need exempting. But if T7 were amended to include "sexual orientation," as the E.O. now has been, then the coreligionist exemption would not offer any justification for discrimination against gays and lesbians, even if the employer's religion forbids their conduct and/or orientation. On Wed, Jul 23, 2014 at 4:48 PM, Kniffin, Eric N. <eknif...@lrrlaw.com> wrote: > Marty is correct: Monday’s executive order leaves Section 204—the > religious exemption Bush added in 2002—as is. The tweaks to the existing > order are minor: in the only four places where the phrase “sex or national > origin” appears (three times in 202 and once in 203), that phrase is > amended to read “sex, sexual orientation, gender identity, or national > origin.” That’s it. > > > > However, I take issue with Marty’s statement that Title VII and the > executive order do not “give the organization the right, even on religious > grounds, to discriminate on the basis of sex, or race, or sexual > orientation. . . .” That’s not the law. Marty’s linked text (p.32) cites > *Boyd > v. Harding Acad. of Memphis, Inc.*, 88 F.3d 410 (6th Cir. 1996), where a > court upheld a religious school’s decision to fire an unmarried pregnant > teacher. > > > > The school won because the term “religion” in the Title VII is interpreted > broadly, to include “all aspects of religious observance and practice, as > well as belief.” 42 U.S.C. § 2000e(j). This allows a qualifying religious > entity to evaluate employees based not only on what they believe, but also > whether they act in conformity with those beliefs. *See Hall v. Baptist > Mem’l Health Care Corp*., 215 F.3d 618, 624 (6th Cir. 2000); *Little v. > Wuerl*, 929 F.2d 944, 951 (3d Cir. 1991). Thus, the “religion” exemption > protects a religious organization’s right to exclude employees based on > conduct that both (1) expresses one’s sexual orientation and gender > identity and (2) violates the church’s moral teachings. > > > > Practically speaking, such organizations have to answer plaintiffs’ > charges that the adverse decision was not based on “religion” but on > prohibited bases. That is why religious employers should be prepared to > demonstrate that they have applied behavioral standards evenhandedly. For > example, the court in *Boyd* might well have upheld the pregnant > teacher’s sex and pregnancy discrimination if the school had not been able > to show that it had previously fired male and female employees for > premarital sex, even when no pregnancy resulted. 88 F.3d at 412, 414. > > > > Eric > > > > *Eric N. Kniffin, Of Counsel* > > *Lewis Roca Rothgerber LLP | * > > *90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662* > > *(T) 719.386.3017 <719.386.3017> | (F) 719.386.3070 <719.386.3070>* > > *eknif...@lrrlaw.com <eknif...@lrrlaw.com>** | www.LRRLaw.com > <http://www.lrrlaw.com/>* > > > > *Rothgerber Johnson & Lyons LLP is now Lewis Roca Rothgerber LLP.* > > > > > > > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Wednesday, July 23, 2014 1:11 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Question about the President's executive order on sexual > orientation discrimination > > > > I don't think that's right, Eugene. Or, more to the point, you are correct > that the sec. 204 exemption is not "extended" to sexual orientation > discrimination proscribed in sec. 202 -- but that that's true, as well, > for all other forms of forbidden discrimination, and retaliation, that are > proscribed in section 202 of the E.O. *except the prohibition on > religious discrimination. *That is to say: The 204 exemption is only a > partial exemption from the ban on religious discrimination, allowing > certain contractors to prefer coreligionists even if that would otherwise > violate the ban on religious discrimination. > > > > The exemption - both in 204 and in title VII -- does not give the > organization the right, even on religious grounds, to discriminate on the > basis of sex, or race, or sexual orientation, or the fact that an employee > sued to vindicate one of those protections, etc. > > > > See pages 30-32 of http://balkin.blogspot.com/olc.charitablechoice.pdf > > > > On Wed, Jul 23, 2014 at 12:51 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > My apologies if I missed this in past list traffic on the > subject, but I just wanted to check my understanding: As I read it, under > an existing executive order, > http://www.dol.gov/ofccp/regs/statutes/eo11246.htm, federal contractors > can’t discriminate based on race, color, religion, sex, or national origin, > but religious institutions are exempt from the ban on* religious > *discrimination, > when it comes to discriminating in favor of “individuals of a particular > religion” (sec. 204). The President’s new executive order, > http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen, > bars federal contractors from discriminating based on sexual orientation > and gender identity, but does not extend the sec. 204 exemption to sexual > orientation discrimination. One argument against this order is (in effect) > that sexual orientation discrimination should be treated more like > religious discrimination (in the sense of being exempted when done by a > religious institution) than like race discrimination (which is not exempted > even when done by a religious institution). > > > > Do I have *the facts *right on this? I’m setting aside here what the > right answer ought to be; I just want to make sure I’m not misunderstanding > the legal scheme. Thanks, > > > > Eugene > > > _______________________________________________ > 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 > > 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. > > > > ------------------------------ > > This message and any attachments are intended only for the use of the > individual or entity to which they are addressed. 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