Re: Question about the President's executive order on sexual orientation discrimination
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
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. ___ 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.
RE: Question about the President's executive order on sexual orientation discrimination
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 [cid:image001.gif@01CFA682.3F097F20] Eric N. Kniffin, Of Counsel Lewis Roca Rothgerber LLP | 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662 (T) 719.386.3017 | (F) 719.386.3070 eknif...@lrrlaw.commailto:eknif...@lrrlaw.com | www.LRRLaw.comhttp://www.lrrlaw.com/ [cid:image002.jpg@01CFA682.3F097F20] 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.edumailto: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
RE: Question about the President's executive order on sexual orientation discrimination
I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 23, 2014 12:11 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.edumailto: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.edumailto: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. ___ 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.
Re: Question about the President's executive order on sexual orientation discrimination
I think Marty has the better argument here. The exemptions to the EO and Title VII allow certain religious organizations to favor co-religionists in hiring, but that exemption does not allow them to discriminate on prohibited grounds, even if they do so based on religious belief. Boyd is not to the contrary -- that case involved discrimination based on religiously-prohibited conduct, namely sexual activity outside marriage, not discrimination on the basis of sex. Similarly, Little v. Wuerl involved someone who was fired for a divorce and remarriage, not for being a woman (rather than a man) who divorced and remarried (outside the rules of the faith). Cases where the religious organization wanted to discriminate on prohibited grounds, even pursuant to a religious belief, have come out the other way. See, e.g., EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1364-67 (9th Cir. 1986) (church owned school violated Title VII by providing health insurance to married men but not married women, even though such discrimination reflected a religious belief that only married men can be heads of households). Now that sexual orientation is a prohibited ground under the EO, a religious organization could not discriminate on the basis of sexual orientation even for religious reasons. Nor could it discriminate on the basis of activity that is correlated with sexual orientation, I would think. See Lawrence v. Texas, 539 U.S. 558, 575 (2003) (O'Connor, J., concurring) (“[T]he conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed towards gay persons as a class.”); Elane Photography v. Willock, 309 P.3d 53, 61 (N.M. 2013). ([t]o allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of [New Mexico’s antidiscrimination law].). I admit there is room for argument in the cases on this point, though, and we can expect litigation on it. Nelson On Jul 23, 2014, at 4:48 PM, Kniffin, Eric N. eknif...@lrrlaw.commailto: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 image001.gif Eric N. Kniffin, Of Counsel Lewis Roca Rothgerber LLP | 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662 (T) 719.386.3017 | (F) 719.386.3070 eknif...@lrrlaw.commailto:eknif...@lrrlaw.com | www.LRRLaw.comhttp://www.lrrlaw.com/ image002.jpg Rothgerber Johnson Lyons LLP is now Lewis Roca Rothgerber LLP. From: religionlaw-boun...@lists.ucla.edumailto: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
Re: Question about the President's executive order on sexual orientation discrimination
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. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use
Re: Question about the President's executive order on sexual orientation discrimination
/ image002.jpg Rothgerber Johnson Lyons LLP is now Lewis Roca Rothgerber LLP. From: religionlaw-boun...@lists.ucla.edumailto: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.edumailto: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 onreligious 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.edumailto: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. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. In accordance with Internal Revenue Service Circular 230, we advise you that if this message or any attachments contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer.___ To post, send message to Religionlaw@lists.ucla.edumailto: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
Re: Question about the President's executive order on sexual orientation discrimination
. 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 *image001.gif* *Eric N. Kniffin, Of Counsel* *Lewis Roca Rothgerber LLP |* *90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662* *(T) 719.386.3017 | (F) 719.386.3070* *eknif...@lrrlaw.com eknif...@lrrlaw.com** | www.LRRLaw.com http://www.lrrlaw.com/* *image002.jpg* *Rothgerber Johnson Lyons LLP is now Lewis Roca Rothgerber LLP.* *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu 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. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521
Re: Question about the President's executive order on sexual orientation discrimination
?? It's not either race discrimination or religious discrimination -- it's discrimination on the basis of sexual orientation. On Wed, Jul 23, 2014 at 5:39 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, July 23, 2014 12:11 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. ___ 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. ___ 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.
Re: Question about the President's executive order on sexual orientation discrimination
719.386.3017 | (F) 719.386.3070 719.386.3070* *eknif...@lrrlaw.com eknif...@lrrlaw.com** | www.LRRLaw.com http://www.lrrlaw.com/* *image002.jpg* *Rothgerber Johnson Lyons LLP is now Lewis Roca Rothgerber LLP.* *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu 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. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. In accordance with Internal Revenue Service Circular 230, we advise you that if this message or any attachments contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer.___ 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
Re: Question about the President's executive order on sexual orientation discrimination
(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 *image001.gif* *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/* *image002.jpg* *Rothgerber Johnson Lyons LLP is now Lewis Roca Rothgerber LLP.* *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu 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. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received
RE: Question about the President's executive order on sexual orientation discrimination
Well, hence the “akin.” If we add sexual orientation to the list of proscribed bases for discrimination, we ought to decide which model to use. The race model (no discrimination, period, except in the rare areas where there’s a constitutional right to discriminate)? The sex model (no discrimination except for BFOQs, which involve situations such as sexual privacy)? The religion model (no discrimination except for BFOQs, and when done by religious institutions)? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 23, 2014 2:59 PM To: Law Religion issues for Law Academics Subject: Re: Question about the President's executive order on sexual orientation discrimination ?? It's not either race discrimination or religious discrimination -- it's discrimination on the basis of sexual orientation. On Wed, Jul 23, 2014 at 5:39 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 23, 2014 12:11 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.edumailto: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.edumailto: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. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
Re: Question about the President's executive order on sexual orientation discrimination
Oh, sorry. You started with a descriptive question of what the E.O. does; I didn't realize that now you're asking the normative question of whether it *should be *treated like all the other criteria other than religion (as it is under the E.O.), or whether there should be an exemption for this form of discrimination that doesn't apply to the others. You raise BFOQ and the 702 exemption -- but neither is an apt analogy, I think. It's hard to imagine a straight BFOQ for government contractors, isn't it? And that's not what the fuss is about, anyway -- those opposing the E.O. aren't saying that being straight is a bona fide OQ. As for the 702 exemption, it does *not *give qualifying employers the right to discriminate on other grounds for religious reasons -- or even the right generally to discriminate on the basis of religion. (A 702-exempt employer can't have a no Catholics allowed rule, for instance.) But the exemption that some sought in the E.O. would have categorically allowed such employers to discriminate against LGBTs. There's no analog for that in current antidiscrimination law, far as I'm aware. On Wed, Jul 23, 2014 at 6:12 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, hence the “akin.” If we add sexual orientation to the list of proscribed bases for discrimination, we ought to decide which model to use. The race model (no discrimination, period, except in the rare areas where there’s a constitutional right to discriminate)? The sex model (no discrimination except for BFOQs, which involve situations such as sexual privacy)? The religion model (no discrimination except for BFOQs, and when done by religious institutions)? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, July 23, 2014 2:59 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Question about the President's executive order on sexual orientation discrimination ?? It's not either race discrimination or religious discrimination -- it's discrimination on the basis of sexual orientation. On Wed, Jul 23, 2014 at 5:39 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, July 23, 2014 12:11 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
Re: Question about the President's executive order on sexual orientation discrimination
Although to the extent “the debate” is so framed, it overlooks the place of sex discrimination in the Title VII/EO antidiscrimination regime and occludes the possibilities that sexual orientation and gender identity discrimination might properly be understood as akin to sex discrimination, or indeed even as forms of discrimination based upon sex — and thus already prohibited. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Volokh, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Wednesday, July 23, 2014 at 2:39 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Question about the President's executive order on sexual orientation discrimination I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. 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.
Re: Question about the President's executive order on sexual orientation discrimination
I mentioned that in one of my posts, David. As you know, the EEOC has recently come to embrace the view that LGBT discrimination is sex discrimination under Title VII -- which, if accepted, would make ENDA and the E.O. quite beside the point. See cases cited here: http://www.eeoc.gov/federal/directives/lgbt_complaint_processing.cfm Judge Kollar-Kotelly appears to have endorsed that view in a recent opinion: https://s3.amazonaws.com/s3.documentcloud.org/documents/1102023/terveer-opinion-on-motion-to-dismiss.pdf On Wed, Jul 23, 2014 at 5:56 PM, David Cruz dc...@law.usc.edu wrote: Although to the extent “the debate” is so framed, it overlooks the place of sex discrimination in the Title VII/EO antidiscrimination regime and occludes the possibilities that sexual orientation and gender identity discrimination might properly be understood as akin to sex discrimination, or indeed even as forms of discrimination based upon sex — and thus already prohibited. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Volokh, Volokh, Eugene vol...@law.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Wednesday, July 23, 2014 at 2:39 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Question about the President's executive order on sexual orientation discrimination I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. 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. ___ 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.
RE: Question about the President's executive order on sexual orientation discrimination
Oh, I agree with that in general -- I just posted something on my blog, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/23/is-sexual-orientation-discrimination-like-discrimination-based-on-race-sex-religion-politics-appearance/, that discusses the akin to sex discrimination position, among others. Indeed, when it comes to controversies such as the Boy Scouts controversy, the sex discrimination analogy would be an important one to consider (though I agree that some prefer the race discrimination analogy there). I was just saying that, when it comes to the religious exemption debate, the argument is (usually implicitly) that sexual orientation discrimination should be treated like religious discrimination rather than like race discrimination. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, July 23, 2014 2:56 PM To: Law Religion issues for Law Academics Subject: Re: Question about the President's executive order on sexual orientation discrimination Although to the extent the debate is so framed, it overlooks the place of sex discrimination in the Title VII/EO antidiscrimination regime and occludes the possibilities that sexual orientation and gender identity discrimination might properly be understood as akin to sex discrimination, or indeed even as forms of discrimination based upon sex - and thus already prohibited. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Volokh, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Wednesday, July 23, 2014 at 2:39 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Question about the President's executive order on sexual orientation discrimination I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. 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.
Re: Question about the President's executive order on sexual orientation discrimination
It's more than a bit outdated, but I did write an article a few years ago trying to answer the specific question Eugene asks in his post. See Gays, Jews, and Other strangers in a Strange Land. It is about the model or analogy to use in discussing claims for accommodation for religious objectors to same sex marriage. Alan Sent from my iPad On Jul 23, 2014, at 7:44 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Well, hence the “akin.” If we add sexual orientation to the list of proscribed bases for discrimination, we ought to decide which model to use. The race model (no discrimination, period, except in the rare areas where there’s a constitutional right to discriminate)? The sex model (no discrimination except for BFOQs, which involve situations such as sexual privacy)? The religion model (no discrimination except for BFOQs, and when done by religious institutions)? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 23, 2014 2:59 PM To: Law Religion issues for Law Academics Subject: Re: Question about the President's executive order on sexual orientation discrimination ?? It's not either race discrimination or religious discrimination -- it's discrimination on the basis of sexual orientation. On Wed, Jul 23, 2014 at 5:39 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 23, 2014 12:11 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.edumailto: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.edumailto: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
Re: Question about the President's executive order on sexual orientation discrimination
It appears that Eric does indeed disagree with Marty, Nelson, and me with respect to whether section 702 (and, similarly, the newly amended Exec Order) forbids discrimination when it is based, not only on religion, but also on an additional characteristic which Title VII (or the Order) prohibits as a basis for discrimination. The cases Eric cites (Boyd, Hall), however, do not stand for that. The OLC memo, to which Marty links, cites cases that stand for his/our side of the argument (i.e., that preferring co-religionists may not smuggle in discrimination based on race, sex, etc.) I wonder if Eric has citations that support his side when one looks at the facts. He offered none. With respect to the male-only clergy -- Marty has his own views, I am sure, but I would venture that with the First Amendment aside (that's a big aside that Eric is positing), a male only clergy would indeed violate Title VII if the relationship involves covered employment. Does Eric or anyone else have citations to the contrary? As I recall (this is from memory), McClure v. Salvation Army (5th Circuit, the germinal ministerial exception case) rejected a section 702 defense to a sex discrimination claim by a woman with a pastoral appointment. If Ms. McClure had not been a ministerial employee, and if the facts supported her claim of sex discrimination, she would have prevailed. Perhaps I am thinking of Rayburn, the 4th Circuit decision, Wilkinson, J., that constitutionalized the ministerial exception; but, either way, I do not believe that any court has ever upheld a male-only clergy under section 702, unaided by First Amendment considerations. I'm sure Eric will correct me if I am wrong about that. On Wed, Jul 23, 2014 at 5:53 PM, Kniffin, Eric N. eknif...@lrrlaw.com wrote: Ira, my recollection of Boyd was that the religious school offered examples where it had fired male and not pregnant female employees for premarital sex NOT in order to disprove sex discrimination, BUT to shore up its claim that it based its decision on religious grounds (religious based behavior standards). That seems to me an important difference. To clarify matters, I’d like to ask Marty to answer another question. You said that that 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.” So under your reading, does Title VII (leaving aside 1st Amendment claims) prohibit the Catholic Church from only employing male priests? 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 | (F) 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 *Ira Lupu *Sent:* Wednesday, July 23, 2014 3:55 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Question about the President's executive order on sexual orientation discrimination I'm not sure that Marty and Nelson are disagreeing with Eric at the bottom line. Eric writes that 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. So here's my question for Eric or anyone else (and this is the question that one can easily imagine being at the cutting edge): Under the Exec Order, as now amended, may a religious organization that offers family/spousal benefits to employees refuse to pay such benefits to an employee with a same sex spouse (in a marriage recognized as lawful by the relevant state), on the ground that the employer (on religious grounds) does not recognize the validity of the marriage? I say no, because there is no behavioral standard that is being applied evenhandedly. (If there is, please explain what it would be, and how it would be applied and enforced even-handedly -- that is, not based on sex or sexual orientation.) On Wed, Jul 23, 2014 at 2:40 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: I think Marty has the better argument here. The exemptions to the EO and Title VII allow certain religious organizations to favor co-religionists in hiring, but that exemption does not allow them to discriminate on prohibited grounds, even if they do so based on religious belief. *Boyd* is not to the contrary -- that case involved discrimination based on religiously-prohibited conduct, namely sexual activity outside marriage, not discrimination on the basis of sex. Similarly
Re: Question about the President's executive order on sexual orientation discrimination
Thanks for the citation, Eugene. -David From: Volokh, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Wednesday, July 23, 2014 at 3:53 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Question about the President's executive order on sexual orientation discrimination Oh, I agree with that in general -- I just posted something on my blog, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/23/is-sexual-orientation-discrimination-like-discrimination-based-on-race-sex-religion-politics-appearance/, that discusses the “akin to sex discrimination” position, among others. Indeed, when it comes to controversies such as the Boy Scouts controversy, the sex discrimination analogy would be an important one to consider (though I agree that some prefer the race discrimination analogy there). I was just saying that, when it comes to the religious exemption debate, the argument is (usually implicitly) that sexual orientation discrimination should be treated like religious discrimination rather than like race discrimination. 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.
