Monday, December 19, 2022

Your religion isn’t a license to discriminate (but we may need to accommodate you anyway)

Pronouns confuse me. It's not that I want to misgender anyone. In fact, quite to the contrary, I try really hard to get people's pronouns correct when addressing them or speaking about them. To me, it's a simple matter of common decency. My efforts to get them correct, however, doesn't mean that they still don't confuse me. When I grew up, I learned that "they" refers to a group of people. Thus, when someone refers to someone else as "they," my brains says, "more than one." It's just difficult, but I still try to get it right.

Which brings me to the story of Vivian Geraghty, a middle school teacher. She is suing her former employer after being told either to use the preferred pronouns of her students or resign. She chose the latter, and claims in her lawsuit that the school's mandate discriminated against her Christian beliefs, which the school should have accommodated. Geraghty says the school instead should have explored potential accommodations such as moving her to another classroom or addressing students by their last names

I have thoughts. 

First, everyone has the right to their own belief structures. Yet, shrouding a discriminatory belief structure in a cloak of "religious liberty" is dangerous. It's a slippery slope between the religious freedom to refuse to use another's preferred pronoun, to firing an LGBTQ+ employee, to firing an African American or Jewish employee, all in the name of "it's against my religious beliefs."

Yet, sometimes an employer must find a reasonable middle ground. In this case, if Vivian Geraghty's allegations are correct, I worry that her employer did not find it. 

I am drawn to the words of former EEOC Commissioner Chai Feldblum, who wrote the following on this issue several years ago, in a piece entitled, What I Really Believe About Religious Liberty and LGBT Rights.

When dealing with individuals, the government should respect a statement by a religious person that complying with a non-discrimination law or some other law will place a burden on that person's religious beliefs, unless there is a good reason to believe that statement is false. If there is a way to accommodate the person and still achieve the compelling purpose of the law, the government should do that. If there is no way to accommodate the person, and still ensure that the compelling purpose of the law is achieved, then the accommodation should not be made. That is what nuance means.

Ms. Feldblum advocates for an reasonable middle ground. Sometimes the path of least resistance is not only the easiest thing to do, but its also the legal thing to do. In this case, it seems as if this employer may have failed on both accounts.