Discrimination, “Plain and Simple,” Or Religious Accommodation

A funny thing happens when your value system is at work. It makes you blind to the issue at hand, as reflected by this letter to “Ask A Manager” about a woman who complains of discrimination in the workplace.

 

Does this have an impact on women? Obviously, as they are treated differently, even though the company, according to the description, seems quite fair and accommodating otherwise, contradicting claims that this is just a subterfuge for sex discrimination. And as the “answer” to the question, as well as some hot takes from the twitters, suggest, this is a slam dunk violation of Title VII of the Civil Rights Law of 1964.

 

What makes this particularly controversial, and disturbing, is that men refusing to be alone with, to travel with, women is the backlash to #MeToo. The only certain way to avoid being falsely accused of sexual impropriety is to be in a position that would allow for such a claim.

But this isn’t a #MeToo problem, but a religious accommodation issue. If these men hold sincere religious beliefs that it would be improper to be alone with a woman not his wife, then these beliefs are protected both by the First Amendment as well as Title VII. Even though the old-school religions like Christianity are largely dismissed these days in favor of the shiny new ones like #MeToo, they remain protected. And the employer is required by law to make reasonable accommodation of religious beliefs.

While this would have an obvious impact on women, though the examples given in the “answer” are stretched and oddly assumptive, is the solution that any man whose religious beliefs forbid being alone with a woman should be forbidden from being alone with anyone? That would punish the man for his religious beliefs by denying him the ability to be alone with another guy, as his religion would permit. It would also impair the employer’s needs, by dictating personnel decisions and managements prerogatives when there was no religious accommodation justification to do so.

The point isn’t whether discrimination on the basis of religion trumps sex discrimination, or whether the company gets to decide how best to spend its money and deploy its staff. After all, a road trip that only has work needs for two people would be bumped up to three if one was a woman, meaning that one person would have nothing to do but still be paid. Featherbedding is back in fashion?

The problem is that this is hardly “plain and simple,” or a “per se violation of Title VII,” and suggesting so reflects not merely a grossly simplistic legal approach, but a value-laden lie. Sure, many view religion as silly zombie nonsense at best, and a subterfuge for “real” discrimination at worst, but that’s merely a value choice. They feel that sex discrimination is more important than religious discrimination, and have no problem dismissing people’s religious beliefs in favor of their own.

But what if this wasn’t a matter of a sincerely-held religious belief, but self-protection by men who refuse to put themselves in the position of being accused of creating a hostile work environment, if not sexual harassment?

    

Putting aside the baked-in assumption, inter alia, that managers are all men, rather than women, which might seem a bit sexist on its own, it’s not hard to see why this could be viewed as a problem, but is it an irrational problem or the logical by-product of irrational times? The simplistic view is that if you don’t want to be accused of sexual assault, don’t sexually assault anyone. But then, that fails to acknowledge either false accusations or differences in sensibility, where the particularly sensitive woman finds harassment under every rock.

A “poor performance” by a female employee seems to be a likely candidate for a claim of sex discrimination these days, given the ease of justifying everything negative as the product of discrimination, for which no victim shaming is allowed. These are difficult questions, with entirely reasonable positions on all sides. Anyone who tells you women win, “plain and simple,” is revealing their bias. There’s nothing simple about it.

19 thoughts on “Discrimination, “Plain and Simple,” Or Religious Accommodation

  1. Xchixm

    “Even though the old-school religions like Christianity are largely dismissed these days in favor of the shiny new ones like#MeToo, they remain protected.”

    There’s a lamp missing a shade, for it was thrown.

  2. Jake

    What seems missing in this analysis is the needs of every other stakeholder in a modern business organization and the customers it serves.

    In this scenario, the religious person is seeking ‘reasonable accommodation’ for their religious beliefs. Their employer must grant that accommodation unless doing so would pose an undue hardship.

    Negatively impacting the career of another person in the process of accommodating the first isn’t just an undue hardship, it’s new discrimination. Therefore, the employer must accommodate in another way. Thus, the religious person’s request for accommodation isn’t only relevant to the women it may discriminate against, it potentially also impacts the business leadership, other coworkers, and the customers.

    The plot thickens: What if my religion says I don’t work on Wednesdays? What if my religion demands I wake up every day and smoke an ounce of purple kush before work? Absurd you say? See: Rastafari. However, it would be foolish to suggest a person gets to drive an eighteen wheeler all day while ripping bong hits just because their religion says they can.

    I believe the employer has a duty to grant this accommodation, but they also have a duty to do it in a way that does not impact the career of anyone else. Thus: profit will suffer so to ensure appropriate supervision for the man who can’t be alone with a female coworker. If it were my business, I would make sure everyone knows, in unrelated communications, the relationship between profit and bonuses.

    1. SHG Post author

      If one ignores your first paragraph (which is utter gibberish), it took you until the third paragraph to dive down the rabbit hole. You’re getting better, but there remains a lot of room for improvement.

      1. Jake

        Resubmitted, without the narcissistic gibberish:

        In this scenario, the religious person is seeking ‘reasonable accommodation’ for their religious beliefs. Their employer must grant that accommodation unless doing so would pose an undue hardship.

        Negatively impacting the career of another person on the basis of sex in the process of accommodating the first isn’t just an undue hardship, it’s new discrimination. Therefore, the employer must accommodate in another way.

        Ensuring appropriate supervision for a religious man who can’t be alone with a female coworker will impact profitability. Not that anyone asked or cares, but if it were my business I would make sure every employee is very clear about the relationship between profit and bonuses.

        1. SHG Post author

          Better. But is a law prohibiting sex discrimination by a private actor that imposes a burden on religious practice an equivalent of a violation of the Free Exercise clause of the First Amendment, or does the constitutional violation take precedence? Also, it’s not “new discrimination,” but theoretical discrimination. No court has held this to be discrimination as yet, and the injury remains entirely speculative at this point.

          1. David

            Now you’re just trolling Jake. You know he can’t possibly contribute to this discussion as a non-lawyer to address the complexities here.

          2. Jake

            Sounds like the world needs a plaintiff, so some lucky lawyer can run this up the flagpole and see which way the wind blows.

    2. RedditLaw

      I was just thinking to myself, “Where’s Jake on this question?” I am glad to see that I was not to be disappointed.

      By the way, I just checked with my buddies at Reddit. They agree with Jake.

        1. RedditLaw

          You could, however, have explained to Jake that the questions he raises in his fourth paragraph about religious accommodations for not working on certain days of the week and the right to use hallucinogenic substances in religious ceremonies have been addressed many, many times by the U.S. Supreme Court and that our friend could look up the answers to these questions on the Intertubes if he wished.

  3. Julia

    If it’s a strict religious conviction, it’s consistent. If a man refuses to meet with a woman 1-to-1, it will be any woman, not just a coworker. He would refuse a lunch with a business partner or a customer rep who’s a woman. He would not go on trips alone as he could find himself sharing space with a woman (like that chatty lady on an overbooked flight). He would refuse to be interviewed for jobs by women –
    company owners, managers, employees, HR. Moreover, he would have a history of this behaviour affecting his entire career. Probably, he wouldn’t even advance to a manager position.

    Another thing, she says “a few” employees with “strict” convictions and they are all men. Statistically a company would have both men and women who are religious. There will be men who refuse 1:1 meetings with women and women who refuse 1:1 meetings with men. Those men meet only other men and those women meet only other women. Everybody is accommodated.

    But if a sizable group of male employees suddenly adopts “strict religious convictions” towards female employees (but not to women outside), however, no female employee exhibits the same behaviour towards men, something is really fishy here.

    1. SHG Post author

      That all goes to whether the claim of religious adherence is true or a subterfuge, making it irrelevant for the purpose of this post, which assumes the facts as stated to be true.

    1. Fubar

      Bzzzt! Wrong thread. Intended for

      Tuesday Talk*: Hair, The New Frontier For Discrimination

      If Officer Barleycorn writes me up for posting while sober, I’ll ask for religious accommodation.

  4. Billy Bob

    The only certain way to avoid being falsely accused of sexual impropriety is NOT to be in a position that would allow for such conduct. No?
    Am I the only one to pick this up after 24 hours? Prolix is a good word. Jake is trying his best.

Comments are closed.