I work for an organization that has a standard nondiscrimination policy. They state that they are an Equal Opportunity Employer and list about 20 protected classes on the basis of which they ban discrimination. In our state, Michigan, only race, sex, and religion are protected classes under the law. But my company lists many more protected classes, including marital status, family size, sexual orientation, gender identity, political affiliation, and others. This is an internal policy, not law, but I'm wondering if this internal policy might conflict with the law.

I know from personal experience that many religions require adherents to discriminate on the basis of sexual orientation and gender identity. Thus, nondiscrimination on the basis of sexual orientation and gender identity is against those religions.

According to the law, though, employers cannot discriminate on the basis of religion/religious affiliation. So when my company forbids discrimination on the basis of sexual orientation and gender identity, as it does, it appears to violate the right of employees from certain religious backgrounds to discriminate on the basis of sexual orientation and gender identity.

In other words, my employer - via their nondiscrimination policy - seems to be discriminating against employees whose religion requires them to discriminate on the basis of sexual orientation and gender identity.

So, is it the case that my company's nondiscrimination policy conflicts with the law?

(This situation doesn't impact me directly; I'm religious, but I'm emphatically not from a religion that requires discrimination.)

  • Anti-discrimination laws/policies are there to protect employees, it doesn't mean they must allow discrimination if that discrimination is sanctioned by a religion. Its impossible to create a discrimination policy that doesn't discriminate against somebody. How would you create a non-discrimination policy that allows discrimination based on religion?
    – Ron Beyer
    Nov 14 '19 at 16:27

The theory would be that because of federal law prohibiting employers from discriminating on the basis of religion, an employer would have to make a reasonable accommodation to the religious employee's requirements. Thus if your religion prohibits working on Friday, if it is reasonable to do so, the employer must allow you to work some other day. However, if store is only open on Friday, then it's not reasonable to employ a person who will never show up at work.

Now suppose that a company prohibits employees from discriminating on the basis of family size. That would mean that a manager is not allowed to demote, fail to promote, or favorably promote an employee on the grounds that his family has fewer than members. ("Discriminate" means both favor and disfavor). It would be legal under current law to discriminate this way, and it is also legal for a company to prohibit such discrimination.

Enter the employee with a putative religious obligation to actively discriminate against people with "small" families. The employee discovers that his cubicle-partner Bill has only 8 family members, and he starts loudly denouncing Bill – which disrupts the work environment. A reasonable accommodation might be to stick employee in a cubicle with a different co-worker (one who is religiously acceptable). But the specific circumstances matter, so if employee and Bill are the entire accounting department, this is not a reasonable accommodation. Nor is it reasonable to fire Bill. In that case, employee has to conduct himself politely while on the job. He is free to internally hate Bill, he just is not allowed to act on that hatred based on a claim that his religion requires him to act out.

At some point, the question could end up at the Supreme Court: can a policy against outrageous behavior be overruled (owing to anti-discrimination laws that require religious accommodation) because a person's religion is argued to require the outrageous behavior? I think the court is very unlikely to rule on this, because anti-discrimination laws also generally have "reasonable accommodation" clauses.

  • Ah, I'd forgotten about the "reasonable accommodation" clauses. Thanks.
    – dcacat
    Nov 14 '19 at 21:09

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