Culture Wars and Protected Classes: White Supremacy vs. Religion

After the flap over Miss California’s answer to a question about gay marriage in the Miss USA beauty pageant, I did a post on culture wars and protected classes. I predicted that if the Employment Non-Discrimination Act (ENDA) passes to make sexual orientation (and maybe bisexuality and transgender status) a protected class, the culture wars and employment law would merge — or clash.

Arguably, they already clash. An inquiry of an applicant or employee about gay marriage wouldn’t violate ENDA (since it hasn’t been enacted yet). It might, however, violate Title VII of the Civil Rights Act of 1964 if it’s viewed as an inquiry into one’s religious beliefs.

A recent article in Slate Magazine caused me to think about this matter again. The article names six distinct white supremacy groups as identified by the Department of Homeland Security: neo-Nazi, Ku Klux Klan, Christian Identity, racist skinhead, Nordic mysticism, and Aryan prison gang. Christian Identity and Nordic mysticism are said to be religious sects.

Presumably, most employers wouldn’t want to hire or retain a white supremacist. It would be difficult for such a person to be part of a racially and ethnically diverse team. It would set the stage for discrimination and harassment claims. Plus, there’s no employment law protecting white supremacy. But there is a law protecting religion: Title VII.

I don’t know of employers that ask applicants whether they’re members of a white supremacist group, and I’m not suggesting that this question be asked. But what if it were? Could it violate Title VII, because it inquires into a possible religious affiliation? In order to be a violation, would the applicant have to be a member of Christian Identity or Nordic mysticism?

What if an employer finds out that a current employee is a white supremacist and fires him to head off anticipated trouble? A violation of Title VII? A violation only if the employee is a member of Christian Identity or Nordic mysticism?

The bottom line of this post is to raise the same question I raised in my original post on culture wars and protected classes. Is it possible for one protected class to be trumped by another or to be trumped by well-accepted antipathy toward a non-protected group like white supremacists?

You may accuse me of presenting a far-fetched notion. Perhaps I am. But that’s what makes employment law so interesting, even frustrating. Far-fetched notions end up in court and sometimes cause unexpected results.

1. 

   kent says:

   May 8, 2009 at 5:25 pm

   It’s happened.

   First, Peterson v. Wilmur Communs., Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002).
   as described at http://www.eeonews.com/news/religious/whitesupremacist.html :
   “A white supremacist was demoted from a supervisory position because his employer feared he would not evaluate and discipline fairly. The Court ruled for the employee because an employer “cannot avoid liability for taking an adverse employment action based on the employee’s pure religious beliefs, unaccompanied by acts.”"

   or, at http://www.splcenter.org/intel/intelreport/article.jsp?aid=79 :
   “Under this test, the court ruled, the WCOTC creed was a religion for Peterson. … But when the result in a case is as bizarre as it is in the Peterson lawsuit, other courts are unlikely to follow it. In future employment discrimination cases involving the WCOTC, employers will be much more careful than the telemarketing firm in the Peterson case to present admissible evidence that the racial attitudes of members have influenced their actions.”

   and compare Wiegand v. Motiva Enterprises (NJ 2003) no. 02-3979(JBS) upholding an employee fired for running a “mail order neo-Nazi skinhead music company,” which I described at http://www.lawroom.com/story.asp?STID=979
2. 

   Amy Cann says:

   May 18, 2009 at 11:21 am

   I believe the right for an individual to be employed in a hostility-free work environment supersedes the right of an individual’s personal beliefs, whether religious or not.

   Personal beliefs are just that…”personal”. Believe what you want, just keep it out of work.

   I do agree that in general, employers should not take employment actions against individuals for something that might happen. but I believe there must be exceptions to this, specially related to any potential workplace violence incidents.