Employees whose employers employ less than 15 people also have no protection
under federal law
Marc
----- Original Message -----
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
To: religionlaw@lists.ucla.edu <religionlaw@lists.ucla.edu>
Sent: Mon Jul 19 10:45:09 2010
Subject: Re: 10th Circuit Finds Church Immune From Workplace DiscriminationSuit
Rick is casting a larger net than my post suggested. The relevant universe
here is the universe of employees. As in the speech cases (and in particular
the defamation cases since we're dealing with employment), there should be some
weighing of interests here. Right now, in my view, the balance is out of whack
in this universe. (If there are other harms arising from other First Amendment
rights that require redressing, I'm all in favor of exploring those as well.)
Employees assume that they cannot be discriminated against on the basis of
gender (including a right not to be a victim of sexual harassment). It turns
out in most states that they are UNLESS the employer is religious. (Don't
forget the Supreme Court has not yet ruled on the ministerial exception so
whether it is a robust or less robust or not a constitutional right still
remains in limbo.) So a bishop who creates a hostile working environment or who
persistently engages in sexual innuendo typically is immune or who arbitrarily
decides a man is a better choice than a better qualified woman is immune.
Employees are doubly disabled in these scenarios. First, as Americans the
culture encourages them to trust religious leaders (though surely that is
declining in light of the steady investigative reporting suggesting folks do
that at their peril). More importantly, because of the ministerial exception,
few cases are ever filed, let alone litigated, and, therefore, the incidence of
gender discrimination is not publicized. So women are going into these jobs
with expectations of fairness that are not borne out, because of a First
Amendment doctrine.
One option is to carve back on the right so that no employer who fails to
advise an employee of this issue can claim it. Bob objected to that, because
the ministerial exception is jurisdictional. But if this is the result, why
should it be? Why isn't it a right, like the freedom of speech in defamation
cases, which carries with it some obligations and weighing, depending on the
scenario?
One option is to have the government inform applicants through public
education, as in add language to the tax forms..... Another is to have anyone
who is taking government funds for mission have to agree as a condition of
receiving the funds to inform employees about the risks they are taking by
taking the employment.
Is Rick saying none of these options are constitutional and/or desirable?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time,
rgarn...@nd.edu writes:
I agree, for what it’s worth, that it makes good sense for attorneys
representing churches and religious institutions to advise their clients to
inform those in ministerial positions (that is, in any position that the church
regards as ministerial) about their (the institutions’) religious liberty. But
I’m wondering if Marci’s proposed warning requirement applies only to religious
employers (and if so, why? Because they are employers? Because they are
religious?) or to all whose rights-exercise might cause “harm”?
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