Wednesday, August 04, 2004

Is this religious discrimination?

A woman was fired from “Rising Star -- a Central Florida telecommunications company with strong Muslim ties” for eating pork—because such behavior doesn’t comport with the tenets of the orthodox practice of the Muslim religion.

I don’t think this qualifies as religious discrimination. The firm wasn’t saying “you must be Muslim” therefore, if you are Buddhist, Protestant, or Mormon, we will not let you work here. Rather what they seem to be saying is regardless of your religious faith, if you practice any behavior that we view as inimical to our religion, we will not let you work here. Take Protestant fundamentalism and homosexuality for an analog. Let’s say we have a gay applicant/employee who is also a member of the very liberal Unitarian Church. If a Protestant fundamentalist employer said, “you are a Unitarian, therefore I can’t hire you because of their stance on homosexuality,” then arguably they have committed religious discrimination, because he is discriminating on the grounds of religious affiliation. However, if the employer said, “I don’t care what your religious affiliation is, you just can’t practice any behavior—homosexuality included—that we view as inimical to our faith,” then they are discriminating on the basis of sexuality and sexual behavior, not religion. If “sexual orientation” weren’t a protected class under the respective state or local jurisdiction, then this discrimination arguably would be legal.

With the case at hand, the Muslims seem to be saying the same thing: “We don’t care what your religious affiliation is, you just can’t practice any behavior—eating pork included—that we view as inimical to our faith.” In other words, it’s pork eating, not lack of Muslim faith, that is the ground on which Rising Star is discriminating.

Personally, I think forbidding the eating of pork is a stupid ground for an adverse employment decision, but in a jurisdiction where employers as well as employees can base their decisions on good reason, bad reason, or no reason at all, (provided it doesn’t fall under an exception to this default employment at will rule, like bona-fide discrimination or public policy), then the behavior is legal.

But what’s good for the goose ought to be good for the gander. Employment discrimination laws ought not to exist in the private sector. If non-pork eating Muslims may discriminate against those not in this group, then those not in this group ought to be able to discriminate against non-pork eating Muslims. Private employers also should be able to discriminate against Muslims, Protestant Fundamentalists, atheists, homosexuals, men, women, whites, blacks, the handicapped, etc. After all, as Richard A. Epstein points out, the employer owns the capital; thus the job is his or hers to give.

[Update: Thanks to Eugene Volokh for the link!]


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Did you ever hear of this outcome? I'm looking but I'm not seeing it online anywhere. Or even that it was actually filed as a lawsuit.

I was all full of piss-N-vinegar when I first read about this but your point makes sense.

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