(A) We’re on the same page about that flyover state making laws concerning the establishment of homophobic religion.
(B) Please stop associating this young woman’s clothing with the despicable behaviors of horrible people.
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The nice thing about your example is that it actually illustrates how the law attempts to distinguish between these two things. from NPR
EEOC General Counsel David Lopez responded that the rules for employers are not that difficult and that the law requires an accommodation for religious practices unless the accommodation would pose an undue burden on the employer. He said that to refuse to make a religious accommodation, an employer would have to show that an accommodation "would actually impact its operations in a meaningful way."
Now, I Am Not A Lawyer, but I think you could make a pretty straightforward case for how a bloody clown outfit would meaningfully impact your business
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It’s a religiously held view. It’s tempting to ignore that because it’s such a harmless one.
But it’s important that you recognize that the mechanism by which we protect her totally reasonable desire to wear a scarf also protects the repugnant homophobia you wish to disassociate her from.
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Which mechanism are you talking about?
The WBC is primarily protected by the first amendment, which gives a huge amount of protection to most speech without regard for whether that speech religious or not.
Are you proposing that the specific anti-discrimination law at issue in this case also protects homophobia? If so, how?
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I’m speaking of any legislation which categorizes religious opinions alongside things such as race, gender, or sexual orientation.
There is lots of legislation on the books in the U.S. which does this. Perhaps most notably the Civil Rights Act of 1964.
I think the solution is to structure legislation such that, matters of choice & opinion are categorically separate from matters pertinent to things a person is born with (e.g. race, sex, orientation, etc).
I’m no lawyer either. I agree that in this specific instance a headscarf is a not likely to interrupt the operations of most businesses. Were I a business owner I don’t think I’d care if someone wore a scarf.
That said I think the realm of fashion is fairly arbitrary and appearance driven one. I think it’s fair for a clothing brand to argue that a religious headscarf clashes with their branding efforts.
Abercrombie & Fitch is a businesses which operate through a practice known as ‘luxury branding’. Their branding and advertising portray their merchandise alongside a specific lifestyle. They make their money by suggesting that wearing their brand will help you achieve that lifestyle.
In Abercrombie’s case, they are trying to send the message that wearing their clothes will make you into a person who is popular, good-looking, sexually-attractive and ‘cool’. Their totally repugnant CEO has openly stated as much).
I don’t think it’s entirely unreasonable, to argue that incorporating religious garb undermines that image. Which in turn might harm how much merch they sell to people pursuing that image.
I think Abercrombie would argue that their employees are required not only sell clothing, but also model that clothing and act as brand ambassadors.
Living a lifestyle which is devoutly religious may in fact clash fundamentally with a job which requires you to sell a lifestyle of being a popular, sexually available, cool kid.
(Note that I do not think Abercrombie is cool or sexy, but it is their stated goal to be perceived as such.)
You guys, reading the article helps a lot:
Abercrombie managers could have asked Elauf if she’d be wearing the head scarf for religious reasons while on the job—as Justice Samuel Alito said during oral arguments, maybe she was just having a bad hair day when she came for her interview. They didn’t—they deemed it too awkward—but they did assume that Elauf covered her hair as a religious practice, and they rejected her on the basis of that assumption.
Any employer can have a dress code, of course, but it cannot use it to discriminate against an individual on the basis of his or her religious practice. If an employer fires or refuses to hire a Muslim who wears a hijab, an Orthodox Jew who wears a yarmulke, or a Sikh who wears a turban because of that religious practice, without even trying to find an accommodation, then that’s discrimination under Title VII of the Civil Rights Act of 1964. Announcing the opinion from the bench this week, Scalia declared the case “really easy.” (Clarence Thomas was the sole dissent: he argued that Abercrombie’s decision was based on a neutral anti-cap policy.)
They rejected her because they assumed her covering would conflict with the dress code, not because they asked. It appears that she was never given the option to say “No, I can take it off during work hours” or “No, I can not comply with that policy”. That is what makes the case discriminatory, not the presence of a dress code. This is IMHO (and IANAL) a totally reasonable standard for both businesses and prospective employees to be held to.
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Man when Scalia says ‘this is easy’ and says you’re discriminating, you know you done fucked up.
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Woohoo! Good to know that a giant pentagram with Baphomet’s face is now suitable attire for a job interview.
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“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
And yet, for some bizarre reason, we also have Hobby Lobby. I guess Abercrombie and Fitch wasn’t closely held enough. Now, granted, the Court explicitly said that the Hobby Lobby decision “doesn’t provide a shield” for closely held corporations seeking to discriminate based on religious reasons against the Civil Rights Act, but I’m afraid I have no idea why that wouldn’t be the case.
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Then I’m justified in suing the modeling agency that rejected me for not meeting their visual expectations?
Choice is not the point; discrimination is.
My right to hold an opinion is what gets protected. I don’t have a right to actions that may hurt others, but I cannot be discriminated against because of my opinions or my expression of them. Those opinions include religion, but are not exclusively only religion. They include things like political and artistic expression. That’s why the ACLU defended the Nazis in that (in)famous case.
On the other hand, you don’t get to act on that opinion if it’s discriminatory against someone else. The management of Abercrombie may hold the opinion that only cool kids (by their definition - another opinion) deserve their clothes or jobs at their company, but they can’t act on that because that would be detrimental to someone else’s freedom of expression.
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I’m not entirely sure I want to pick sides on this, but it seems like it’s nudging that line if a) modelling the product is an essential part of the job, and b) the headscarf is taking attention away from the product.
I get that religious obligations need to be accommodated if they don’t create an undue burden- It’s about where we should draw the line at what constitutes one. There are cases where that line is pretty obvious, but I’m not sure this is one of them.
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Honestly, it seems like they’d be screwed either way- Just asking could have been construed as discriminatory.
When I was managing my store, my boss happened to be there when I did an interview scheduled by my predecessor- A terrible interview. Kid was sloppy, barely spoke, not at all enthusiastic, no experience. No way I was going to hire him. After he leaves, my boss says “I really hope you can hire another [insert ethnicity here] so he doesn’t sue us.”
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Well, uh, it’s what’s required by employment anti-discrimination laws, so I’m not sure how it could be construed as discriminatory. You make Abercrombie out to be the victim here when they have a corporate legal team that has apparently failed to provide appropriate hiring instructions to management staff, or has a culture where management staff don’t pay attention to their legal department’s hiring instructions. This is a form of corporate negligence that is clearly negatively effecting Muslim women, but not, say, white dudes who show up to interviews wearing what is considered ‘normal’ to a mostly-white company. From a moral or ethical perspective, not just a legal one, that is pretty clearly wrong–assuming someone will not be able to meet the requirements of a job because of how they look and what you assume about their religious practices, when other groups never undergo the same unspoken scrutiny, is clearly discriminatory. This appears, at least on the surface, to be a case where both the law and court decision are totally sane.
I’m not sure what your anecdote about some virtual harm that never occurred adds.
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Because if they don’t get the job, they can claim that it was because of X. If you actually asked them about X, then you lose all plausible deniability. It doesn’t mean they actually have any grounds to sue, just that they can threaten, and because corporate America is what it is, that means a settlement.
In my case, it was because my entire staff was white. Just the fact of that makes my decision look racially motivated, even if it wasn’t.
Edit:
I should probably make it clear that I live in something like the 3rd least diverse state in the country- It’s gotten better the last decade or two, but we had 1500 kids in my high school, and less than a dozen of them were non-white. So… It’s not that I didn’t want to hire people of color, it’s just that it was pretty rare to actually see any, let alone have them apply for a job there.
So if someone went to a job interview dressed as a Nazi, that employer wouldn’t be allowed to factor that into their decision to hire that person?
Opinions should be protected to the extent that one can have them, and one can express them without being physically harmed for it. One should be able to go to public places, and participate in public life.
But anti-discrimination laws shouldn’t guaranty my employment. If I have a repugnant hateful backwards opinion, religious or not, an employer should have the right to pass on employing someone with opinions which others might find distasteful.
My freedom to do and say what I want extends only to the point where I am burdening someone else with those opinions.
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Enabling discrimination against people for wearing headscarves would seem repugnant.
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Enabling discrimination which could be used to pressure people to change religions would seem repugnant.
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Enabling vigilante groups to issue threats, demanding that businesses not serve black people, fire certain reporters, not house union organizers, etc. would seem repugnant, and the business could claim that the targets were burdening them, rather than the vigilantes. How do you think Jim Crow was enforced? How do you think the civil rights laws would have worked if they allowed discrimination on the basis of religion and opinion? (“We do not serve uppity negroes, and if they want us to serve them, they are uppity.”)
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I noticed you dodged the Nazi example. I find it telling that you avoided addressing my example. It’s easy to linger only on the good outcomes of protecting religious opinions.
Now to address some of your specific points:
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It’s not about headscarves, it’s about protecting religious opinions. If you protect the scarf because it’s religious headgear, you also enable people to discriminate against gay people (so long as it’s for religious). Headscarves are harmless I agree, but the mechanism by which it’s protected, also protects the very vile aspects of religious opinions also. This is problematic. It’s easy to focus how harmless the headscarf is, but the way our laws are written it is categorically protected alongside religiously motivated hate-speech.
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Also there is nothing repugnant about encouraging people to abandon ignorant religious opinions. I loose no sleep over telling a homophobic baptist, that they are wrong and their world view is wrong. I am proud to encourage people to abandon bad ideas regardless motivation, religious or otherwise.
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Wow this one is a rambling mess, how shall I respond? I am all for protecting things people cannot control about themselves. I would never support legislation that would allow people to discriminate against people based on sex, race, or orientation. It is because of that I cannot abide by legislation which would seek to legally protect discriminating against one of the aforementioned groups on the basis of religion. It is incompatible to protect both things at the same time. It is because we are attempting to lump religion in with these other traits that we are seeing states like Mississippi pass ‘religious freedom’ legislation which allows for legalized discrimination against homosexual people.
Religion is a choice, if you join a voodoo cult that seeks human blood, I’m not interested in extending my tolerance to your acts. Opinions deserve to be challenged, no special category of opinions deserves to be elevated beyond scrutiny.
