It's not just employers who would have a license to discriminate, but employees, as well.
The question of how far religious freedom laws and executive orders
should be expanded has come to the forefront this month: Last week, the
EEOC appeared to be withdrawing from a case (EEOC v. Harris Funeral Homes)
in which a business claimed a religious exemption from the 1964 Civil
Rights Act’s prohibition on discrimination on the basis of sex to
justify firing an LGBT employee.
Also last week, a draft of an executive order greatly expanding the right to discriminate against LGBT people based on sincerely held religious beliefs was leaked. A similar bill was passed in Mississippi in 2016, but was temporarily blocked by a district judge in the 5th Circuit.
The proposed First Amendment Defense Act (FADA) serves a similar purpose on the federal level: It would prevent the government from taking action against federal employees or contractors who discriminate based on a religious belief that marriage is only for heterosexual couples, and sex should only happen within marriage.
Neil Gorsuch, the nominee to replace the late Justice Scalia on the Supreme Court, played a pivotal role in expanding the scope of the Religious Freedom Restoration Act of 1993 (RFRA): In a 2014 decision, he sided with Hobby Lobby in its efforts to deny contraception coverage to its employees by finding that corporations are people. He also found, in Little Sisters of the Poor v. Burwell, that virtually any government requirement of a religious organization was an unconstitutional burden upon its religious rights. And in Summum v. Pleasant Grove City, Judge Gorsuch seemed to support the argument that governments may show favortism toward one set of religious beliefs over another.
In several cases, this leads to a situation where employers cannot prevent their employees from expressing their religious views towards LGBT people or prevent them from discriminating against other LGBT employees. Expansion of the ruling in Little Sisters of the Poor to employees could mean that the religious beliefs of workers must be accommodated, and virtually any limitation could constitute an unconstitutional burden.
All of this creates a potential for chaos in the workplace.
Imagine you owned a business, and one of your employees unilaterally decided to stop serving LGBT customers. The bad reviews on Yelp start pouring in, you’re being reviled on social media, and Buzzfeed just left a message on your phone requesting a comment. In short, your brand is in a world of hurt.
However, you wouldn’t be able to prevent this because, under the expanded RFRA, ordering workers not to discriminate would be a violation of their rights. Nor could you stop it once it happened: The RFRA expansion also prevents disciplining employees who discriminate, so you couldn’t fire or move them someplace less damaging to your business.
Another ugly possibility is the effect on insurance: If employees didn’t approve of their employer’s insurance plan covering birth control, same-sex partner benefits, transgender health care, or in-vitro fertilization, they could claim that paying into such a plan burdens their religious rights. That could force employers to offer dozens of different plans to avoid lawsuits—driving up the per-employee cost of premiums and increasing overhead exponentially. (Even if a company did juggle a multitude of plans, they could still be at risk: If one plan cost more than the others, it could be seen as a form of religious discrimination.)
And finally, the inability to prevent religious-based discrimination in the workplace opens the door to an HR nightmare: Company equal-opportunity policies would become unenforceable. This would drive away talent, and create a hostile workplace environment for everyone not protected by the expanded RFRA. Employees could make expensive, time-consuming and outrageous demands—such as getting rid of any chair a woman might have sat on, or not having to breathe the same air as an LGBT employee—and they’d have to be accommodated.
But an expansion of RFRA to employees appears to be a key goal for some at the state and federal level. Many businesses seem unaware of the hazard both in terms of talent and financially. As one senior HR manager told me, “Oh my God, that’s horrible. I’d quit and find a new career if that happened.”
Read more articles from NewNowNext, here.
Also last week, a draft of an executive order greatly expanding the right to discriminate against LGBT people based on sincerely held religious beliefs was leaked. A similar bill was passed in Mississippi in 2016, but was temporarily blocked by a district judge in the 5th Circuit.
The proposed First Amendment Defense Act (FADA) serves a similar purpose on the federal level: It would prevent the government from taking action against federal employees or contractors who discriminate based on a religious belief that marriage is only for heterosexual couples, and sex should only happen within marriage.
Neil Gorsuch, the nominee to replace the late Justice Scalia on the Supreme Court, played a pivotal role in expanding the scope of the Religious Freedom Restoration Act of 1993 (RFRA): In a 2014 decision, he sided with Hobby Lobby in its efforts to deny contraception coverage to its employees by finding that corporations are people. He also found, in Little Sisters of the Poor v. Burwell, that virtually any government requirement of a religious organization was an unconstitutional burden upon its religious rights. And in Summum v. Pleasant Grove City, Judge Gorsuch seemed to support the argument that governments may show favortism toward one set of religious beliefs over another.
In several cases, this leads to a situation where employers cannot prevent their employees from expressing their religious views towards LGBT people or prevent them from discriminating against other LGBT employees. Expansion of the ruling in Little Sisters of the Poor to employees could mean that the religious beliefs of workers must be accommodated, and virtually any limitation could constitute an unconstitutional burden.
All of this creates a potential for chaos in the workplace.
Imagine you owned a business, and one of your employees unilaterally decided to stop serving LGBT customers. The bad reviews on Yelp start pouring in, you’re being reviled on social media, and Buzzfeed just left a message on your phone requesting a comment. In short, your brand is in a world of hurt.
However, you wouldn’t be able to prevent this because, under the expanded RFRA, ordering workers not to discriminate would be a violation of their rights. Nor could you stop it once it happened: The RFRA expansion also prevents disciplining employees who discriminate, so you couldn’t fire or move them someplace less damaging to your business.
Another ugly possibility is the effect on insurance: If employees didn’t approve of their employer’s insurance plan covering birth control, same-sex partner benefits, transgender health care, or in-vitro fertilization, they could claim that paying into such a plan burdens their religious rights. That could force employers to offer dozens of different plans to avoid lawsuits—driving up the per-employee cost of premiums and increasing overhead exponentially. (Even if a company did juggle a multitude of plans, they could still be at risk: If one plan cost more than the others, it could be seen as a form of religious discrimination.)
And finally, the inability to prevent religious-based discrimination in the workplace opens the door to an HR nightmare: Company equal-opportunity policies would become unenforceable. This would drive away talent, and create a hostile workplace environment for everyone not protected by the expanded RFRA. Employees could make expensive, time-consuming and outrageous demands—such as getting rid of any chair a woman might have sat on, or not having to breathe the same air as an LGBT employee—and they’d have to be accommodated.
But an expansion of RFRA to employees appears to be a key goal for some at the state and federal level. Many businesses seem unaware of the hazard both in terms of talent and financially. As one senior HR manager told me, “Oh my God, that’s horrible. I’d quit and find a new career if that happened.”
Read more articles from NewNowNext, here.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.