If you stay in the legal trenches long enough, you learn a central fact of our cultural conflict: Intolerant overreach often breaks the law. An effective legal response to such intolerance often takes time to generate, but when it comes, it can break waves of discrimination and lawlessness.
The most recent example of legal triumph over illiberalism is the shattered ruins of the campus-speech-code regime. The most recent example of an important counterattack is the defamation verdict against Oberlin College administrators who joined a woke student mob. And the time is growing ripe for opening yet another legal front in the war against intolerance: a defense of woke institutions’ religious employees.
The weapon of choice here is Title VII of the Civil Rights Act of 1964, the federal law that prohibits workplace discrimination on the basis of “race, color, religion, sex, or national origin.” Under the statute, “religion” is defined to include “all aspects of religious observance and practice, as well as belief.”
I thought of Title VII today while reading a post from Rod Dreher that describes the increasing prevalence of corporate “equality pledges,” some of which ask employees to affirm that “lesbian, gay, bisexual, and transgender identities are within the spectrum of normal human experience and are not . . . sinful.” He attached this example:
While an employer can certainly ask a doctor to treat all patients on an equal basis, it may not require an employee to sign an affirmation that explicitly seeks to contradict basic Christian theology, and it may not punish an employee who refuses to sign.
Dreher’s example was “voluntary,” though it will be interesting to see what “voluntary” truly means. At the heart of religious discrimination in the modern workplace is the pernicious idea that religious disagreement creates a risk of workplace misconduct. In other words, the very existence of orthodox religious views is presumed to create an unacceptable workplace environment for LGBT employees.
Let’s take two recent, prominent cases.
In the first case, the city of Atlanta fired fire chief Kelvin Cochran after he wrote a self-published book that articulated a thoroughly orthodox Christian view of sex and marriage. The book wasn’t even focused on sex or sexuality; only six out of 162 pages dealt with the topic at all. Cochran’s on-the-job performance was exemplary; he’d never faced a discrimination complaint. But that didn’t stop Atlanta’s mayor from condemning him at length or the city from firing him without due process.
In the second case, the Georgia Department of Public Health fired Dr. Eric Walsh a devout Seventh-day Adventist after it became aware of his religious beliefs. To investigate Walsh, the Department’s director of human resources actually had Walsh’s co-workers listen to the sermons he’d delivered at church to help it evaluate his beliefs, in a clear violation of his rights.
Both Walsh and Cochran sued and won. Walsh received a $225,000 settlement, and Cochran received $1.2 million.
It’s worth noting the sheer bigotry behind these workplace reprisals. They simply presume that because a person holds traditional religious beliefs that they can’t treat LGBT employees with dignity or respect, in spite of the existence of a host of other traditional religious beliefs that mandate kindness and love.
I recall a job interview many years ago at Cornell Law School. The interviewer correctly intuited from my CV that I was a religious conservative. How, she asked, could I teach gay and lesbian students?
The question was unlawful: Inquiring about religious beliefs at a job interview is a textbook Title VII violation. But rather than assert my legal rights, I sensed that the question was asked in good faith, so I answered, “My Christianity teaches me that every person is created in the image of God and should be treated with dignity and respect. I’ll treat all my students well, but I can’t guarantee that they’ll treat me well when they find out about my faith.”
She accepted my answer, I got the job, and we later became friends, but I couldn’t help but wonder: How many CVs are tossed aside because an obviously Christian candidate is presumed to be a bigot? Every year I talk to anxious young Christian lawyers and professionals who seek guidance on which items to include on their resumés and which to omit.
Yes, there are some Christians who behave in bigoted ways, but an employer cannot simply presume that a Christian will engage in workplace discrimination based on the existence of Christian beliefs.
Moreover, if employees are so triggered by Christianity that they cannot abide a Christian colleague, then they are bigots, not the Christian. Their actions are akin to those who can’t abide working alongside a woman or person of a different race.
It is a simple fact that progressive Americans and traditional religious Americans can live and work side by side. They can treat each other as friends and colleagues in spite of deep ideological and religious differences. It happens every day in workplaces across the United States. Woke capitalism and woke academia doubt this reality. And when their doubt turns to discrimination, they violate the law.
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