FWIW, a post on these questions: http://balkin.blogspot.com/2014/07/why-law-does-not-and-should-not-allow.html
On Wed, Jul 23, 2014 at 5:41 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > 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 >> >> >> >
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