Can American employers legally discriminate against humanists?

There’s an interesting article making the rounds about a workplace discrimination case brought in the UK that saw an employment tribunal officially recognizing “humanism” as what we in the United States would call a “protected class.” A protected class is any group of citizens against whom it would be unlawful to discriminate, whether it be in hiring, firing, serving at a bar or restaurant, or placing on ballots for election. Protected classes can include religious identities, ethnicities, veterans (and non-veterans); they aren’t limited specifically to religious or philosophical positions.

In the UK case, a musician who voiced political opinions against playing a concert with an Israeli orchestra, and was later suspended for six months over it, alleged in her complaint that among other things she was discriminated against for being a humanist. While she lost the case for lack of evidence, the tribunal held in no uncertain terms that humanism is a protected class where UK labor law is concerned.

This raises the question of whether or not American humanists would be likewise protected. Fortunately, unlike twisted miasma of European discrimination law, which is becoming redefined almost daily as the interplay between national and regional courts settles down, American law is very clear on this point. Title VII is the law we’re looking for, and it states in part that employers may not discriminate based on (among other things) “religion” in hiring decisions (with rare exceptions below), and that “religion” means:

(j) The term “religion” includes 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.

The qualifying language in the second half of the definition is designed to protect such legal absurdities as a Catholic church being sued for refusing to hire a practicing Orthodox Jew, or a toll booth being sued for not letting a Muslim worker lay a prayer mat down on the interstate five times a day.

So, does “religion” on this definition also include “non-religion?” Both the plain text of the act and existing case law is very clear in establishing that, yes, Title VII protects atheists. “Religious belief” is deliberately broad; it is meant to give courts as much room as possible to protect people based on their Constitutional rights to religion, non-religion, and conscience. I don’t think it’s a stretch to say that atheism is a “religious belief” insofar as it is a “belief about religion,” namely that most or all religions are wrong.

The courts have agreed. The most straightforward citation is to Akers v. Pena (you’ll need a Westlaw account to read the full article). Now, the atheist who brought this workplace discrimination suit lost the case, but not for being an atheist, just for lack of evidence. Much like the case in the article above, the appeals court in Akers went out of its way to say that

Here, appellant has alleged discrimination on the basis of religion because of his belief that there is no supreme being. He has alleged various forms of mistreatment which have occurred because of his atheism. Therefore, applying the case law mentioned above, we find that the agency improperly rejected appellant’s claim of religious discrimination for failure to state a claim.

Scrubbing out the gobbledygook, this is pretty plain language holding that a lower court’s holding held that one could not even claim discrimination over being an atheist (one would be “failing to state a claim” if one stated the claim that they were discriminated against for being an atheist) was wrong, that being discriminated against for being an atheist is actually an actionable claim. This is just part of the abundant caselaw on this question, which goes all the way up to a huge settlement by CitiGroup for discriminating against an atheist employee who happened to be the director of Tennessee’s branch of American Atheists. Clearly, their lawyers knew that discrimination against atheists was legally relevant; otherwise, they wouldn’t have settled!

The thornier question is whether or not “secular humanism” is likewise covered. We know that secular humanism has some kind of legal recognition; courts have at least found that humanism-based discrimination can at least go from the employer downward. In Taylor v. National Group, a court was considering a discrimination claim by a woman who said that she was sexually harassed, and that her employer was handing out books promoting secular humanism. The court, again, recognized that secular humanism was a legally-cognizable group for purposes of humanism, and dismissed this part of the woman’s claim only for lack of evidence (again).

But not all philosophies are treated equally. Veganism doesn’t cut it, for example. The common thread seems to be that some kind of perspective about religion or the supernatural must be in or near the nucleus of the sincerely-held opinion. While humanism has a moral and ethical component that is completely unrelated to religion, its opposition to religious thinking and claims is likewise a crucial component of secular humanism. The word “secular” is in there for a reason, after all. In sharing this particular commonality with all of the other groups that have tried and won under Title VII, secular humanism is almost certainly protected under VII’s definition of “religion,” if for no other reason than because secular humanism is philosophically inextricable from atheism, which is known to be protected. Furthermore, probably nobody would ever actually discriminate against a humanist for anything other than its atheism component, so any discrimination against secular humanism is likely to be legally tantamount to discrimination against atheists, just as someone who discriminated against people who wear turbans would have identical legal troubles to someone who discriminated against Sikhs.

Seemingly the only legally relevant obstacle to full rights for atheists is the several states whose constitutions deny atheists the right to serve in public office, but those are a joke. They are plainly at odds with the Constitution’s ban on religious tests for public office, and the courts have recognized that. The one time one of these little inquisitors’ codes was tested, it was struck down by a unanimous Supreme Court. All in all, I think it’s a foregone conclusion that American secular humanists enjoy just as many legal protections as the UK tribunal has just now confirmed that British humanists do.


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One Response to “Can American employers legally discriminate against humanists?”

  1. Employment Law Says:

    Employment Law…

    […]Can American employers legally discriminate against humanists? « Skeptic-At-Law[…]…

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