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In California, I'm pretty sure employers aren't allowed to discriminate based on religion (e.g. you can't not hire someone just because they're Jewish). In other words, religion is a "protected class".

So Eric the Employer hires Chris the Christian. Afterwards, Chris goes to his personal social media and posts

I believe in the Bible, which says "The woman shall not wear that which pertaineth unto a man, neither shall a man put on a woman's garment: for all that do so are abomination unto the LORD thy God." - Deuteronomy 22:5

The public sees this as extremely transphobic, and it leads to a huge backlash against Eric's company (and Eric personally may find such views repugnant). Does Eric have any grounds to fire Chris, or is Chris protected from being fired over it?

To be clear, Chris isn't just spouting things like "I hate trans people" or calling for violence against them or anything. He is explicitly making religious statements that link directly to his commonly-accepted religion.

While I gave a random specific example here, my question is more general. If any religion has any views (e.g. homophobia, or they don't like pineapple on pizza, or what have you) that are controversial, is an employer not allowed to discriminate based on that?

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  • " it leads to a huge backlash against Eric's company" Why? Did Chris do anything on a company account, or showing his company badge or wearing a company shirt? Is his private social media page somehow linked to the company?
    – nvoigt
    Mar 23, 2023 at 10:34
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    @nvoigt "Why?". Just because it has nothing to do with the company isn't an excuse. If Bob goes outside and starts screaming that women are inferior and all minorities should be killed, Bob's company has every right and reason to terminate him, even if it was all things done in his "private" life with no relation to the company.
    – chausies
    Mar 23, 2023 at 11:50
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    Well, if you already know that for a fact, I guess you don't need further answers. /shrug
    – nvoigt
    Mar 23, 2023 at 13:03
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    @nvoigt the point is the religion/protected class aspect. It's not about someone doing things in their private life. I wasn't asking a question about that. It's about someone publicly stating their religion/things pertaining to their religion. That's completely different than the argument you made.
    – chausies
    Mar 23, 2023 at 13:52
  • @nvoigt in the last ~5 years in the US, there have been many incidents where companies were pressured to fire their employees other the employee's private conduct. See for instance this article (not all instances involve workplace misconduct). Whether one think that’s a good return to old close-knit communities practices (look up the etymology of "boycott") or a bad thing ("mob rule"), it happens, or at least it’s more publicized.
    – KFK
    Mar 23, 2023 at 16:17

3 Answers 3

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The fact pattern that

The public sees this as extremely [objectionable], and it leads to a huge backlash against Eric's company

gives cover to Eric to fire Chris. That decision would be, provably, based on the expected impact on the company business, not on Chris’ views. The exact nature of the statement does not matter. For example, any of the following could conceivably snowball into a social media uproar:

  • "homosexual sex is sinful"
  • "pineapple does not belong on pizza"
  • "dogs are better than cats"

Of course, that is only the theoretical view when everyone agrees on what happened. In the real world, Chris would argue that Eric fired him for his views, Eric would argue that it was because of the public backlash, and the finder of fact would have to decide which is more credible. Some factors in play would be :

  • if the "social media uproar" is five Twitter accounts with ten followers each, Eric's defense of "there was an angry mob, I had to fire him" will not seem very credible.
  • if Eric unwisely wrote to Chris that they are fired "because of their statement", or worse, "because of your fundamentalist Christian views", that will make Eric’s lawyer job much harder.

On a side note (not asked in the OP but raised in comments), Chris’s statement is undoubtedly protected speech under the First Amendment. That means the government cannot take legal action against Chris. However, other people can: Eric can fire him, Twitter can ban him, his buddy can stop going to the pub with him, his girlfriend can dump him, etc. As the trope goes, freedom of speech does not mean freedom from consequences.

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    "As the trope goes" that's not a trope, it's an adage. Should point out that all the consequences listed are exercises of the First Amendment Right to Freedom of Association. The Government can no more punish Chris, than it can force Eric to employ Chris.
    – hszmv
    Mar 23, 2023 at 11:17
  • I'm no PhD in logic, but (1.) Eric should say he's firing Chris because of the impact on his business. (2.) Eric should not say he's firing Chris because of his statement. (3.) The impact on the business is literally due to Chris's statement.... I'm pretty sure something isn't adding up here @.@. (Or this is just the usually BS that lawyers have to deal with).
    – chausies
    Mar 23, 2023 at 12:00
  • @chausies Your logic is faulty. Compare "I’m firing you because you have a big nose" (permissible under at-will employment laws) with "I’m firing you because you have a big nose, as could be expected from a Jew". The latter is going to get you in legal trouble (not because of the antisemitic stereotype, but because it is evidence that you are firing due to the protected class).
    – KFK
    Mar 23, 2023 at 12:54
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    Well, we’re getting off-topic, but legally that would be a difference between proximate causation (i.e. X was the direct cause of Y, and Y was unavoidable given X) vs. but-for causation (i.e. if X did not happen, then Y would not have happened). The statement is a but-for cause of the business impact, but arguably not the proximate cause (nobody can reliably predict that a tweet will go viral)...
    – KFK
    Mar 23, 2023 at 14:07
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    ...but anyway, that’s not directly relevant. The question that a judge will have to answer is "did Eric fire Chris because Chris belongs to a protected class?". Evidence for or against that proposition comes in various degrees. "I fired you because you are Catholic" is very direct evidence; "I fired you because you keep tweeting Bible verses on your personal account" is less direct; "I fired you because of [some specific statement that cause backlash]" even less so; and "I fired you because I want to appease the crowd" much less so.
    – KFK
    Mar 23, 2023 at 14:10
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I think just posting that quote cannot be the grounds for a backlash, since it undoubtedly exists. Of course it is transphobic, but it's also around 3000 years old. It will depend on what you make out of it.

When Chris says that he hates trans people or even calls for violence against them, that's certainly worse than when he just (based on this quote) expresses his opinion that people must not wear clothes of the opposite sex. That opinion is certainly protected by his freedom of speech, while calling for violence against someone is probably not.

Now if Chris really calls for violence and other illegal activities against trans people, and that backfires on Erics company, that would be a reason to fire him. Not because he's Christian, but because he's calling for violence (which, btw, is highly unchristian).

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    Calling for violence or even murder is protected, unless it is to incite imminent lawless action as the Brandenburg test tells. See also law.stackexchange.com/questions/90142/…
    – Trish
    Mar 23, 2023 at 8:51
  • @Trish Yea, things are difficult in the US, but for the sake of the question I'm assuming it incites action (as there seems to be an uprising).
    – PMF
    Mar 23, 2023 at 8:55
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    Also, just because something is protected speech, it doesn't mean that it can't be grounds for firing you. Using social media to post statements about how bad your company is and how filthy your bosses are, isn't likely to keep you in that position for long.
    – PMF
    Mar 23, 2023 at 9:03
  • Just thinking... A transgender woman wearing a dress isn't wearing clothes of the opposite sex.
    – gnasher729
    Mar 23, 2023 at 17:12
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Religious belief is not a protected class

Anti-discrimination law does not cover religion at either the state or Federal level. Efforts by the conservative Commonwealth government to do so foundered prior to their loss in the 2022 election.

However, this is probably not grounds for dismissal.

If the employee is protected against unfair dismissal under the Fair Work Act, an employer "should not dismiss an employee if it is harsh, unjust or unreasonable".

Dismissal would almost surely be "harsh" as an "extreme response to the situation" with a "very big ('disproportionate') impact on the employee’s economic and personal situation." This may not be the case if the employee were a 'face' of the organisation i.e. someone whose role involves representing the organisation and its values to the public; such a breach might reach the level where dismissal is not "harsh".

The employer would certainly be within their rights to investigate the matter and counsel the employee about their behaviour and establish appropriate boundaries. Should the employee continue to make posts that are against the employer's policy, dismissal may be warranted.

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