Dispatches from the Creation Wars

The Washington Post reports on an employee refusing to wait on a customer because she had a pro-zionist t-shirt on. The cashier refused to ring up her order, but they ended up getting another cashier to do it. Now, by law that cashier could be fired from her job for refusing to serve a customer. But if the objection was religious, then the law would require “reasonable accommodation” for her tender feelings. Again I ask, why the distinction? It’s not because of the first amendment, which applies only to government actions. Indeed I think there is a plausible argument to be made that such a law is itself a violation of the first amendment because it requires private employers to act differently in response to the exact same action depending on whether the action is religiously motivated or not.

Comments

  1. #1 Gork
    May 26, 2007

    A reasonable accommodation would be to wait on the customer, and do so politely. Refusal should be met with immediate dismissal. The employee should not be given the power to discriminate, since the employee is the employer’s agent and represents the employer, and the employer could be sued or prosecuted for discrimination.

    Analogies abound. If the generals let their troops torture and murder, the generals should be hanged.

  2. #2 Dr X
    May 26, 2007

    Would an evangelical Christian be given accomodation in refusing to wait on a customer if the customer is wearing a pro-gay rights t-shirt and the employee claims the right to refuse on religious grounds?

    My wish — government would stay out these decisions and employers would can, on the spot, oversensitive religious zeolots who refuse to do their jobs.

    The idea that somehow the employer and the customer must accomodate hyper-sensitive religious zealots while religious zealots have no obligation to acccomodate the employer or the customer is ludicrous. This is typical of the self-aggrandizing, lopsided view held by religious fundamentalists of every stripe.

    I believe it is a terrible mistake to give people a legal entree into dictating (rather than negotiating) religious terms to employers. Especially now, it sends a very wrong message to fundamentalist immigrants about the kind of society we have and what they should expect if they wish to live here.

  3. #3 Leni
    May 26, 2007

    I’m tempted to say that the distinction exists solely to allow pharmacists to refuse to give women birth control.

    I don’t know that that’s true, but it seems like that is the most commmon use for this type law. And it seems like a typical pro-life, “pro-family” the-end-justifies-the-means kind of reasoning.

  4. #4 MartinC
    May 26, 2007

    Where exactly is the religious aspect to this story ?
    Zionists (and Israelis too) can be both religious or secular.
    The closest comparison I can remember is a situation where workers in the past have had difficulties with the South African apartheid regime (in that case the workers were fired when they refused to work). If you actually read the story linked above it doesn’t exactly sound like that much of a big deal, the server went and got another worker and the customer was served in less than a minute. They had a meeting afterwards where the customer and workers sat down and agreed to a future mechanism – that wasn’t in fact too much different to how it was handled in the first place.
    How about a customer wearing a T shirt that said ‘support the KKK’ ? That is a non-religious(-ish) and legal entity. Should someone be fired for personally not wanting to serve such a customer and asking a co-worker to serve them instead ?
    (By the way I am not saying Israelis are the same as the KKK).

  5. #5 kehrsam
    May 26, 2007

    Great. Now teens all over the country will be providing poor customer service for religious reasons.

  6. #6 nicole
    May 26, 2007

    MartinC,

    I believe Ed was pointing out that there wasn’t a religious aspect to this story, therefore the cashier could be fired for this, but how is this in principle different from when it is a religious issue?

    So that makes yours an interesting question. Should someone be fired for not wanting to serve a customer in a KKK tshirt? Well, it would be legal, because it wouldn’t be religious. Is that fair? I think that’s exactly what this post is getting at.

  7. #7 Trinary_Code
    May 26, 2007

    Kehrsam and Dr. X:

    You have both somehow managed to turn this into an issue of religion. If you noted the title of the thread, and checked out the article it links to, you would have seen that the misbehaving employess refusing service did so for NON-religious reasons. Please explain the logic you follow in taking a swipe at the religious because of this episode.

  8. #8 Breathingist
    May 26, 2007

    I lean towards complete government non-involvement: letting the cashier be as discriminatory as he wants to be and letting the employer fire him for whatever reason he wants.

    Aren’t these issues supposed to be self-correcting in a laissez-faire economy anyway?

    As for the pharmacists dispensing birth-control pill, in those contexts, I find an exception for government involvement because I think that violates the duty of patient care and its a very well regulated industry anyway.

    But aside from that, I think private discrimination is fine and theorectically self-correcting.

  9. #9 Gork
    May 26, 2007

    Imagine if the employee had refused to serve the Pope.

    Incidentally, there is no hope of untangling religion and politics.

  10. #10 Poly
    May 26, 2007

    The interesting thing here, of course, is that this incident had nothing to do with religion – as far as one can tell from the article, this was a political disagreement. And for those here who apparently inhabit the non-reality universe, the Zionist movement was founded by non-religious, secular Jews. The State of Israel was founded by non-religious, secular Jews. Even after a massive influx of very orthodox Jews, most Israelis even today are not orthodox or even conservative in their religious practices, and about a third are agnostic. In the US, the largest and most vocal pro-Israel group are fundamentalist Christians.

    In other words, whether one is pro-Israel or not does not depend on religion, or even if one has any religion.

    Nevertheless, the anti-religious faction takes this incident as a jumping off point for their diatribes.

    Furthermore, as far as I can tell, none of the people involved in this incident were Catholic. Even so, we get an egregious anti-Catholic posting.

    I’m sure that the deniers are going to jump on me now, saying there is no such thing as anti-religious prejudice on this blog, and that if I perceive anything as being anti-Catholic, it’s a figment of my imagination (are you reading this Nonynony?). The tone of the messages in this thread should be a sufficient answer to those denials, but it probably won’t be.

  11. #11 kehrsam
    May 26, 2007

    Trinary: Please get a sense of humor somewhere. If you can’t buy one, rent. I am probably the last regular around here who would take a swipe at religion.

    If it helps, the joke was about teenagers, not religioin.

  12. #12 Ed Brayton
    May 26, 2007

    Many people above are clearly missing the point of the post. The refusal to wait on a customer, in this case, was not religiously motivated (though it could have been if, say, the cashier had been Muslim – where is the line between religion and politics in such a situation?). My point was that the law does not require accommodation of someone’s non-religiously-motivated refusal to wait on a customer, but it does require accommodation for someone’s religiously motivated refusal to wait on a customer. That is the core problem I am pointing out. Let’s take that KKK example that someone raised above. If person A refused to wait on a customer with a “support the KKK” t-shirt merely because they find it offensive, there is no legal requirement for their employer to accommodate their objections. But if person B refused to wait on that same customer and voiced their refusal in religious terms – say, because they are a Christian and they are offended at the KKK’s appropriation of Christianity to prop up their racist beliefs – then the law would require accommodation and protect that employee from being fired. That is the problem here – religious objections are automatically protected by law, while non-religious objections are dismissed as legally irrelevant.

  13. #13 Trinary_Code
    May 26, 2007

    Ed et.al.:

    I would submit the following for consideration as a possible criteria for deciding such matters.

    The question about when/if employess can refuse service also has applications to graver matters, such as when Physicians and other health care professionals can refuse treatments requested by patients, and a variety of others besides.

    It seems to me that a reasonable rule for those who refuse service would be that this can be tolerated ONLY when the person refusing believes, on the basis of demonstrable conviction, that he or she is acting in defence of a value that safeguards the general safety of the community by upholding a greater right, one that if it were eroded, could create a moral void which would threaten the most essential rights of all.

    Physicians and nurses, for example, who refuse to perform, or be otherwise involved in providing abortion services could argue that they are defending the principle that killing of a human life is wrong, and that not only do they believe themselves to be liable to an eventual accountability for their actions, but do not want to engage in actions that would weaken the principles that protect the lives of all members of society. This would provide an out for the conscience of the individual in this case. On the other hand I would say that this should NOT apply to a Catholic pharmacist who refuses to sell birth control products to customers (at least in regard to most birth control methods, including condoms), nor to a Jehovah’s witness physician refusing to provide blood transfusions, etc, because no such values are involved here, at least none of such stark clarity as the direct defence of life.

    I think in general this would rule out most political claims because these generally are not based on matters of moral principle that are more or less universally applicable, but it could in some situations, such as that of a committed non-religious pacifict, who refuses military service, or a “situational” pacifist who has a non-religious just war moral category in mind in selectively refusing military service in a particular war (e.g. one who wanted to refuse service in Iraq, but not necesarily against some other enemy).

    It seems to me that none of this can or should protect the worker who, in the above post, refuses to serve those sympathetic to Israel, since whatever objection she has to Israel, presumably, is based on a purely political judgement against the actions of Israel in regard to specific policy matters and their context and doesn’t depend on principles for which she also condemns other states or the the people that Israel is engaged in action against.

    On the other hand, there’s got to be some room, at some point in society, for acknowledging the dictates of conscience, and it seems to me that the defence of principles that one could argue protect the foundations of civilized life, such as a moral prohibition against ending what one regards as a human life, ought to be where the boundary line is drawn.

  14. #14 nicole
    May 26, 2007

    Poly, which of the above posts is “egregiously anti-Catholic”? I would seriously love to know. On the other thread, by the way, you attacked NonyNony for claiming that anti-Catholic bigotry wasn’t a big problem in the US, which is not the same as saying that no one ever says anything bad about Catholics or Catholicism.

    Why don’t you address the actual point here, for once, which is that people get special protection for their religious beliefs that no one gets for non-religious beliefs? Why do employers have to not only tolerate but make special accommodation for Catholic bigotry, but not for anti-Catholic bigotry, for example?

  15. #15 nicole
    May 26, 2007

    Trinary Code said:

    This would provide an out for the conscience of the individual in this case. On the other hand I would say that this should NOT apply to a Catholic pharmacist who refuses to sell birth control products to customers (at least in regard to most birth control methods, including condoms), nor to a Jehovah’s witness physician refusing to provide blood transfusions, etc, because no such values are involved here, at least none of such stark clarity as the direct defence of life.

    Yes, maybe you would say it would not apply to a pharmacist refusing to dispense birth control, but I’m sure that pharmacist would disagree with you. He would say EXACTLY that it harms the moral fabric of society, and what exactly would a “demonstrable conviction” be? If I have a demonstrable conviction that black people should be separate from white people and interracial marriage causes a moral void, does that mean that I can refuse to give an interracial couple a marriage license? What if I think homosexuality causes a moral void, can I refuse to sell groceries to a same-sex couple and expect my boss to be okay with it because I can demonstrate a conviction? I mean who gets to decide?

    If you have such a conviction, if it’s a serious matter of conscience for you, then maybe it’s worth being fired over.

  16. #16 Coises
    May 26, 2007

    Ed, I believe the analogy to religious accomodation is not as close as you think. I’m fairly certain there is nothing in the law that requires an employer to protect an employee’s “tender feelings” from the free speech of a customer. (Maintaining a “hostile workplace” would be something else again, but I doubt that an isolated incident of a customer who gives offense could be deemed a violation of that requirement.)

    When Muslim cab drivers assert the right to refuse to carry passengers bearing alcohol, it is not because the alcohol offends them; it is because their religious beliefs forbid them to be involved in the transport of alcohol.

    Consider this scenario: two women approach a pharmacy counter attended by a Catholic pharmacist who holds to a strict interpretaton of his religion. One is wearing a T-shirt proclaiming, “Keep your laws off my body! / Save abortion rights in America.”; she presents a prescription for a blood pressure medication. The other is conservatively dressed with a small gold cross on a chain around her neck; she presents a prescription for the “morning after” pill. Is there any question that the requirement for reasonable accomodation of the pharmacist’s religious beliefs may apply if he refuses to serve the second woman, but certainly not the first?

  17. #17 Ed Brayton
    May 26, 2007

    Coises-

    You make a good point and I’m not sure what the answer is. I’d have to look at the case law surrounding the accommodation requirement to see if it has ever been required to accommodate an employee’s religious objections to serving an employee in that circumstance. But as you point, there may be a distinction between them.

  18. #18 Coises
    May 26, 2007

    And now for the flip side…

    Suppose I am a cab driver at an airport. Near this airport there is a “game park” where patrons can hunt animals for sport. A coworker of mine is Muslim, and refuses to transport passengers carrying alcohol because doing so violates his religious beliefs. I am an atheist, but I have strong moral objections to killing any living thing for sport, and I refuse to transport passengers to this park.

    My question: Can the Establishment Clause permit the law to protect my coworker’s moral belief because it is grounded in a religion, yet ignore my moral belief because it is not?

  19. #19 Ed Brayton
    May 26, 2007

    Coises-

    Another good question. For another example, look at the conscientious objection laws, which treat religious objections to war far more seriously than non-religious objections – again, as though merely phrasing an idea in religious terms automatically adds weight or merit to it.

  20. #20 doctorgoo
    May 26, 2007

    A coworker of mine is Muslim, and refuses to transport passengers carrying alcohol because doing so violates his religious beliefs.

    I was looking through Findlaw just now, and found a related essay by Marci Hamilton (who by far is my favorite on Findlaw’s Writ).

    From the essay http://writ.news.findlaw.com/hamilton/20070405.html

    Apparently, some Muslim taxi drivers (Muslims constitute three-quarters of the taxi force) have been refusing to take passengers transporting alcohol. In addition, some Muslim cashiers at Target stores have begun to refuse to scan products containing pork. Experts say, however, that the Muslim religion does not prohibit taxi drivers from taking passengers with alcohol or touching pork. The prohibitions, instead, are against drinking the alcohol and eating the pork.

    Thus, the refusal to take passengers or to scan items is arising from religious status, not religious belief. The message the taxi drivers and cashiers are sending is that they are members of a privileged class, who need not cooperate with the rest of society. The wine-toters can walk and the pork-eaters can scan their own products, thank you very much. When the privilege extends to status, we are at the end of civil society and entering a scary era of Balkanization.

    She goes into more details, but she argues against certain forms of religious accommodation. It’s a good read… I recommend it…

  21. #21 Keanusk
    May 26, 2007

    Personally, I think that motivation–religious, political, or otherwise–shouldn’t matter. When somone in the US offers a service to the public, be it the dispensing of pharmaceuticals, taxi service, drinks, food, pork products or whatever, the motives and beliefs of the buyers of that service shouldn’t enter into the equation, unless the practice of those beliefs at the time of the purchase pose a real danger or threat to other persons. If they do not, then the party offering the service must provide the service. The Constitution does not grant us the right not to be offended by others, only the right to be free of harassment, stalking, or physical harm by others. To me efforts like the Somali Muslim taxi drivers in Minneapolis (cited above), anti-abortion/anti-birth control advocates in pharmacies, or our anti-zionist cashier are all directed at privately punishing others, under the law, for their beliefs. I’ve always thought we can believe and think what we wish. We just can’t always practice it.

  22. #22 Chris' Wills
    May 27, 2007

    If a person in charge of employee selection (a mohammedan let us say) has as part of his criteria that females cannot be employed in positions that would allow them to interact with males not related to them, would that be legal even if it meant that he is effectivelly banning women from working in the company? If he owned the company would it make any difference to the legality.

    On the taxi issue.
    Some sects (possibly as many sects of islam as there are of christianity) of islam do construe the rules to say that a mohammedan cannot transport alcohol. The prohibition applies to production/transport/consumption of alcohol produced for consumption (medical/industrial use is OK in most intepretations); then again some mohammedan sects construe the rules very loosly and allow the consumption of spirits. In either case kaffirs are allowed to produce/transport/consume alcohol allthough the regulations imposed make it very easy to fall foul of the law.

    If I had a taxi and on it had a sign reading “non-muslim driver” is that legal; if not would “non-muslim driver, will transport alcohol, bacon and all haram/bida items” be acceptable, would “will transport alcohol, bacon and all haram/bida items” be OK.

    I ask in all seriousness, in the UK you’ld likely be charged with inciting religious hatred or somesuch and your taxi might accidently catch fire; I just wonder what the situation in the US would be.

  23. #23 daenku32
    May 27, 2007

    I think the religious accommodation laws should be stricken from books. I don’t think certain beliefs should be given legal protection simply because they are part of religion, or are considered ‘religious’. If someone wants to argue for these laws they should do that by including non-religious convictions too.

  24. #24 Poly
    May 29, 2007

    Nichole writes:

    Poly, which of the above posts is “egregiously anti-Catholic”? I would seriously love to know.

    That you will have to determine for yourself.

    On the other thread, by the way, you attacked NonyNony for claiming that anti-Catholic bigotry wasn’t a big problem in the US…

    I never “attacked” NonyNony. Apparently, you see my disagreement with her as an “attack”. Strangely enough, though, you are now going to contradict yourself with this:

    …which is not the same as saying that no one ever says anything bad about Catholics or Catholicism.

    So one saying “bad” things about Catholicism is, in your mind, different from being anti-Catholic – you would assert it isn’t an attack on that religion. But my saying “bad” things about NonyNony is, in your mind, an attack on her. No, that won’t fly.

    —————————–

    Why don’t you address the actual point here, for once, which is that people get special protection for their religious beliefs that no one gets for non-religious beliefs?

    I’m not a legal scholar, but I do think that religion -broadly interpreted – is given somewhat special legal treatment in our founding documents.

    I suppose the “special protection” that you speak of falls into the same illogical conceptual bin as any other civil rights regulations. Sometimes as a society we have to put up with the illogical regulation of our behavior because that regulation addresses a necessary and immediate social issue. If society were perfect, we wouldn’t ever need such regulation at all. But it isn’t.

    There is always a question as to whether the social issues being addressed are so pervasive as to need such a regulatory remedy. That’s a valid question, and needs to be answered.

    But if one asserts that such regulatory remedies are invalid a priori, then one has to be consistent and argue that they all should go – every one of them. And I don’t think you would like that – I certainly wouldn’t.

    So lets stick to the real question and not bring up irrelevant ones.

  25. #25 Leni
    May 29, 2007

    doctorgoo quoted Marci Hamilton:

    Experts say, however, that the Muslim religion does not prohibit taxi drivers from taking passengers with alcohol or touching pork. The prohibitions, instead, are against drinking the alcohol and eating the pork.

    That is interesting. I’m a little fuzzy about the distinction between status and belief though. I wasn’t aware there was one until now. (Of course, I am no lawyer so that is not surprising…)

    Unfortunately, it seems like the whole thing may undone by pointing out that “experts” don’t and probably can’t know what each sect practices or believes. Further, even if you are a member of a sect you personally may practice differently than your leaders. I know a lot of Catholics who take birth control, after all.

    I can see why a Muslim, fearing for his eternal soul, might want to just avoid the alcohol altogether (even while it is being metabolized in the bodies of potential customers), just to be on the safe side. Who are we to argue with him? Isn’t that his decision to make?

    The whole thing is ill-conceived and silly, in a way. Although I find that Amish case she mentioned really fascinating.

  26. #26 nicole
    May 29, 2007

    Poly (Pholy?) said:

    So one saying “bad” things about Catholicism is, in your mind, different from being anti-Catholic – you would assert it isn’t an attack on that religion. But my saying “bad” things about NonyNony is, in your mind, an attack on her. No, that won’t fly.

    Wrong. I’m saying that saying bad things about Catholicism doesn’t necessarily amount to “bigotry.” I have a higher standard for that definition than just “unfavorable.”

    But if one asserts that such regulatory remedies are invalid a priori, then one has to be consistent and argue that they all should go – every one of them. And I don’t think you would like that – I certainly wouldn’t.

    But as I’ve stated elsewhere, I do lean toward this position. In any case, I don’t think there’s any anti-religion hiring practices so pervasive as to need redress the way, for example, racist hiring practices needed redress in the Jim Crow South (as I’ve also stated elsewhere). Anyway.

    Leni said:

    Unfortunately, it seems like the whole thing may undone by pointing out that “experts” don’t and probably can’t know what each sect practices or believes. Further, even if you are a member of a sect you personally may practice differently than your leaders. I know a lot of Catholics who take birth control, after all.

    This is actually an important point. My boyfriend’s mum is a religious studies scholar who testified in a case to exactly this effect, and proceeded to write a book called “The Impossibility of Religious Freedom” – that impossibility being due to the fact that since individual beliefs and practices vary so widely as compared to the stated beliefs and practices of the various sects, it becomes extremely difficult to accomodate all those beliefs and practices.

  27. #27 Poly
    May 29, 2007

    Nicole contends

    … that saying bad things about Catholicism doesn’t necessarily amount to “bigotry.” I have a higher standard for that definition than just “unfavorable.”

    Do you have such a standard? I agree that if we could come up with one that all could more or less consent to, it would be a good thing.

    On the other hand, despite your rationalization, the bottom line is that you were willing to characterize my mere disagreement with someone as an “attack” on that person. And you were not willing to characterize a religious disagreement as an attack on a religion. I think you’ll understand why I consider that to be a double standard.

    So let’s be clear about who is saying what.

    ———————————-

    Nicole asserts:

    In any case, I don’t think there’s any anti-religion hiring practices so pervasive as to need redress the way, for example, racist hiring practices needed redress in the Jim Crow South

    Actually, there have been many cases where religious preferences were illegally used as a job criteria, in hiring, in firing, or in performance ratings. That’s why there is a law prohibiting the practice, flawed though it may be.

    Surprisingly – or maybe not so surprisingly – a significant number of these cases do not involve Christian religious practices or doctrines at all. That may astound some readers of this blog, but the statistics bear it out. In particular, the number of cases alleging anti-Muslim workplace discrimination far outweigh their (estimated) proportion of the American population.

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