Academic journal article Southern Law Journal

The Squiggly Line: When Should Individual Choices Be Protected from Employment Discrimination?

Academic journal article Southern Law Journal

The Squiggly Line: When Should Individual Choices Be Protected from Employment Discrimination?

Article excerpt


Religion, pregnancy, smoking, criminal conduct, personal appearance, sexual orientation, and gender identity - they are all, to some extent, individual choices. When should employers be permitted to discriminate in employment decisions based on those choices? In the background section of this paper the current legislation and litigation will be reviewed; the squiggly line between legal and illegal discrimination will be revealed to exist in all the listed areas. Why are employers prohibited from considering some attributes, such as sex or national origin, but not others, such as smoking, appearance, sexual orientation or gender identity?* 1 "In short, what is the project of the employment discrimination statutes?"2 Currently there is no unifying principle that explains the choices American law has made with respect to protected classification.3 However, when ". . . one moves the focus to traits that are excluded from statutory coverage and attempts to understand the rationale for some of these omissions, one can only conclude that this country's employment discrimination framework is somewhat illogical and incoherent."4 The public policy issues will be analyzed followed by a discussion of the managerial implications. The authors conclude that because of the variety in priority of values in the United States, there is not an easy answer that will resolve all conflicts.


A. Religion

Of the topics discussed in this article, religious discrimination in employment is perhaps one of the more explicitly enunciated prohibitions of Title VII. Specifically, religion is defined for purposes of Title VII as including "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."5 But much more expansively, the EEOC guidelines on religion key upon sincere belief of the employee as to moral positions which are equivalent to traditional religious views.

Title VII defines "religion" to include "all aspects of religious observance and practice as well as belief."6 Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. Further, a person's religious beliefs "need not be confined in either source or content to traditional or parochial concepts of religion."7 A belief is "religious" for Title VII purposes if it is "'religious' in the person's own scheme of things," i.e., it is "a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by ... God." An employee's belief or practice can be "religious" under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual's belief or practice, or if few - or no - other people adhere to it.

Religious beliefs include theistic beliefs as well as non-theistic "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views."8 Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns "ultimate ideas" about "life, purpose, and death." Social, political, or economic philosophies, as well as mere personal preferences, are not "religious" beliefs protected by Title VII.9

Obviously the interpretation of what is and is not religion is far from clear. Often times it is more expedient for a court, as it did in Cloutier v. Costco Wholesale Corp.,10 to simply defer the decision of what may constitute religion, and instead first determine whether or not a reasonable accommodation was presented. …

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