A Philosopher's Blog

Religious Freedom & Discrimination

Posted in Business, Ethics, Law, Philosophy by Michael LaBossiere on November 11, 2013
Sexuality confusion

(Photo credit: Wikipedia)

As this is being written, the Employment Non-Discrimination Act passed in the Senate and is awaiting the consideration of the House. This bill would protect employees from being fired based on their sexual orientation or gender identity. The bill exempts businesses that have less than 15 employees, religious non-profits, government owned businesses and businesses owned by Native American tribes.

Speaking against this bill, Republican Senator Dan Coats claimed that it violates the religious freedom of businesses owners. In making his case, he used the example of how faith-based daycare providers “could be forced to hire individuals with views contrary to the faith incorporated values of the daycare providers.” He also raised the concern that the bill also violated the right to free speech because it would “also would allow employers to be held liable to workplace environment complaints opening the door to the silencing of employees who express their deeply held beliefs.” There are two general issues here that I will address in turn.

The first issue is whether or not forbidding discrimination on the basis of sexual orientation or gender identity is a violation of the religious freedom of business owners.

Business owners do not lose their right to religious freedom just because they own a business. As such, they are free to hold to whatever religious belief (or disbelief) that they wish. However, the law can justly limit how they can act on those beliefs. For example, a person can freely worship a deity that they believe demands human sacrifice but they should not be granted an exemption in regards to the laws against murdering humans. In this case, the harms that would arise by allowing human sacrifice outweigh concerns about religious freedom. That is, the right of people not to be murdered trumps the right of people to freely exercise their faith.

In the case of the anti-discrimination law, the core question is whether or not the right of the owner to act on his religious belief trumps the right of employees not to be discriminated against. It is, of course, assumed that employees have such a right—but it could be argued that there is no such right and that employers should have the right to fire anyone, anytime for any reason. In this case, any laws that limited this alleged right would be wrong—thus making it morally acceptable for people to be fired for being Christian, straight, blue-eyed, ugly, smart, black, white, or anything at all. Presumably this would also allow employees to be fired for not having sex with the boss. This, however, seems absurd. As such, it seems reasonable to assume that employees have a right to be protected against discrimination.

It could be argued that firing someone solely on the basis of sexual orientation or gender identification would not be discrimination. However, firing an employee solely because of her sexual orientation or gender identification would clearly seem to be discrimination by its very nature. After all, the person is being fired for a reason that is not relevant to the job in question. This would also apply to non-firing cases, such as underpaying an employee. Naturally, if a person’s behavior arising from her sexual orientation or gender identity did impact her job in relevant ways, then the employer could act against the employee without it being discrimination. But this would be acting based on the detrimental behavior, not the orientation or identity.

Thus, it comes down to whether or not an employer should have the right to fire, etc.  an employee solely for the reason that the employee has a sexual orientation or gender identity that the employer regards as being against his religious beliefs. Given that the employee is not providing any other justification for being fired, etc. the answer would seem to be “no.” After all, firing someone solely for his sexual orientation or gender identity would be on par with firing someone solely because he was a Christian or Latino. If the employer had a faith that involved regarding being a Christian as wicked or one that involved racism that would not provide an exemption. Crudely put, just because someone has a bigoted and prejudiced faith that does not thus warrant his acting on it.

As a final argument, there is the fact that the harm done to employees would exceed the harm being done to employers. The fact that a religious person might have to endure having gay, women, Christian or Asian employees creates far less harm than allowing employers to engage in discrimination. Thus, the right to religious freedom does not trump the right to not be discriminated against.

The second issue is whether or not the right to free speech protects employees expressing religious beliefs in the workplace when these expressions express discriminatory views against the sexual orientation or gender identity of employees.

This issue is, obviously, very similar to the previous one. In this case, the question is whether or not the right to free expression trumps the right to not be subject to discriminatory expressions in the workplace.

On the face of it, there generally seems to be no compelling reason why people would need to express their views about sexual orientation or gender identity while at work—even if someone had faith-based views of these matters that involved regarding, for example, being gay as wicked.  To use the obvious analogy, there seems to generally be no compelling reason why people would need to express their views about race while at work—even if they had faith based views on these matters that involved, for example, ideas of white supremacy. In contrast, expressing discriminatory views against the sexual orientation or gender identity of people in the workplace would create a hostile workplace and this would be a harm. As such, the right of freedom of expression does not seem to trump the right of people to not be subject to such expressions in the workplace.

Crudely put, requiring people to not engage in discriminatory expression (whether it is faith based or not) while in the workplace imposes less of a burden than requiring people to endure it in the workplace.

In regards to both issues, one could argue that certain sexual orientations or gender identities are such that they would warrant firing a person and also speaking out in the workplace against them. For example, firing a person from a daycare job because he is a pedophile or speaking out against pedophiles in the workplace would not seem to unjustly discriminate against pedophiles.

The question would then be whether or not the protected sexual orientations and gender identities are such that merely having one would warrant firing, etc. a person. In regards to the sexual orientations and gender identities covered by the bill, the answer would seem to clearly be “no.”

Thus, it would seem that religious freedom and free speech do not warrant workplace prejudice.

 

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12 Responses

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  1. T. J. Babson said, on November 11, 2013 at 9:21 am

    Can Greenpeace fire someone for denying climate change?

    • Michael LaBossiere said, on November 11, 2013 at 12:00 pm

      Depends on the specific laws that would govern the location of employment. In most cases, employees serve at the will of the employer and can be fired for any reason or no reason-provided that the reason is not covered by such things as anti-discrimination laws. So, for example, a non tenured professor could simply not get a contract for next year. If the prof could show she was fired because of her religion, ethnicity, gender, etc. then she could sue.

      Recalling my mandatory training sessions in protected classes, Greenpeace could presumably fire that employee-provided that the belief did not place the person in one of those protected classes. But, you’d need to check the laws of the state in question.

  2. T. J. Babson said, on November 11, 2013 at 9:21 am

    You can get fired if you are a smoker in a lot of places.

    • magus71 said, on November 11, 2013 at 9:58 am

      It’s all about gay, TJ. Everything.

    • Michael LaBossiere said, on November 11, 2013 at 12:04 pm

      True-I did a piece on the nanny corporation a while back. Some employers do fire folks for smoking, others impose fines for being overweight, and so on.

      My general principle is that an employee can only be justly fired or penalized for things relevant to the job. So, if Bob smokes six packs per day and is overweight, but only uses the allocated number of sick days and performs at the required level at work then there would be no legitimate grounds to fire him for being a smoker and overweight. But, if Bob was missing too many days and could not perform his job properly because of his self-inflicted poor health, the the employer would have the right to fire him. After all, it is his choices that are impairing his ability to do his job. Bob would also be failing in his moral duty to himself.

  3. WTP said, on November 11, 2013 at 1:45 pm

    Presumably this would also allow employees to be fired for not having sex with the boss.

    And the great legal mind of Mike comes to yet another thoughtless conclusion. Sexual assault is its own legal offense. Though why someone would wish to continue working for such an employer is beyond me.

    You will note how often Mike tries to portray employment as being on par with slavery. Like when he mocks STEM education as “producing little worker bees”.

    • T. J. Babson said, on November 11, 2013 at 1:57 pm

      Years ago I read a book called “Why Literature is Bad for You,” by Peter Thorpe. It is long out of print but Amazon has some used copies for sale.

      This book made me realize that I was far better off sticking with STEM. Thank you, Peter Thorpe.

      Here is one review:

      Buy this book quickly and pay whatever the bookseller asks! This one-of-a-kind book will change the way you think about literature. I love literature, and so does the author,but its dark side is seldom discussed. It can make you lazy, it can make you a chronic contrarian, it can be a trojan horese which slips silly ideas into your mind which you would never accept if they were presented to you as rational arguments(the perfect example of this is the fact that we’re supposed to sympathize with Mersault in Camu’s “The Stranger,” even though he shot a man for the simple reason that the sun was in his eyes.) The publisher needs to keep this book constantly in print.

      • WTP said, on November 11, 2013 at 3:55 pm

        Heh, but Buy this book quickly and pay whatever the bookseller asks! Thus you must be a sucker to buy it and thus every other point made by the author is null and void. Any contrarian will tell you that.

        Wisdom I wish I had at the time this book was published. Pity it was not better promoted. Yeah, odd that.

      • magus71 said, on November 11, 2013 at 6:24 pm

        Interesting book. I think there’s something to this idea. Though I will say that the process of writing my book massively improved my depth of thought. I seemed to access portions of my brain I never knew existed.

    • T. J. Babson said, on November 11, 2013 at 10:26 pm

      Do humanities programs teach anything beyond that Republicans are evil?

      As much as academics go on about the lack of math and science skills, bosses are more concerned with organizational and interpersonal proficiency. The National Association of Colleges and Employers surveyed more than 200 employers about their top 10 priorities in new hires. Overwhelmingly, they want candidates who are team players, problem solvers and can plan, organize and prioritize their work. Technical and computer-related know-how placed much further down the list.

      Jobs are going unfilled as a result, which hurts companies and employees. The annual global Talent Shortage Survey from ManpowerGroup finds that nearly 1 in 5 employers worldwide can’t fill positions because they can’t find people with soft skills. Specifically, companies say candidates are lacking in motivation, interpersonal skills, appearance, punctuality and flexibility.

      Read more: The Real Reason New College Grads Can’t Get Hired | TIME.com http://business.time.com/2013/11/10/the-real-reason-new-college-grads-cant-get-hired/#ixzz2kOVDiKqy

      • Michael LaBossiere said, on November 12, 2013 at 1:56 pm

        Yes. My critical inquiry class covers fallacies, inductive logic, deductive logic, rhetoric, causal reasoning, and claim assessment. Examples are used from current events, but there is no political agenda.

        My ethics class covers moral methods, moral argumentation, moral theories, moral education, equality, rights, and obedience.

        My Modern class covers the Moderns, so it predates the Republicans.

        My Aesthetics class covers aesthetic reasoning, genres, aesthetics & society, defining art, the creation of art. The section on censorship does include mention of politics-including Hilary’s condemnation of GTA.

        My intro class covers argument basics, faith & reason, metaphysics & epistemology and value (aesthetics, rights, liberty).

        All but the CI class have extensive argumentative papers.

        So, lots of reasoning skills.

        • WTP said, on November 12, 2013 at 2:09 pm

          Examples are used from current events, but there is no political agenda.

          Just like here. TJ, Magus, do you actually believe that Mike keeps his political agenda outside the classroom, as he claims? Or do you suppose that under the guise of “exposing” fallacies, etc. in examples used from current events (like there are no neutral sources in all of philsophy for such) a leftist, anti-Republican position is either overtly or by selective omission, endorsed?


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