Religion in the dock

robindch

Is there enough material and interest for a thread discussing what happens when religious systems and legal systems go head to head? Let's see

This case is interesting - a woman who works/worked as teacher in a catholic-controlled school in Indiana took off time from work for in vitro fertilization treatment. The church then fired her, claiming that IVF is contrary to its "ethos". The church did not, however, fire a man who'd undergone male-directed fertility treatment. The woman took a case alleging discrimination on grounds of sex - one of the few exemptions not permitted the church. So the church responded by making the extraordinary claim that the provision for "religious liberty" means that the church is immune from legal proceedings. Even more extraordinarily, the church also seems to be making the claim that, under the same provision, the state has no legal power even to investigate discrimination, let alone prosecute it.

So there you have it - the church seems to believe that the law only applies to other people.

http://www.motherjones.com/politics/2014/11/catholic-school-fires-teacher-using-ivf-unusual-religious-freedom-defense

keane2097

Good idea for a thread, not sure I'll stay subscribed though as there's only so much I'm willing to allow my blood to boil.

Kivaro

robindch wrote: »

..... Even more extraordinarily, the church also seems to be making the claim that, under the same provision, the state has no legal power even to investigate discrimination, let alone prosecute it.

Didn't they think the same way about investigating child abuse?

I believe that the church's definition of religious "liberty" is different to our definition.

lazybones32

Did this woman sign a morality clause - like all diocesan employees - freely agreeing that she would live in accordance with Catholic Teaching? Was she fired or was her contract not renewed 12 - 18 months after treatment?

Was the claim about "religious liberty" an attempt by the Diocese to close the case, or a response from the Diocese arguing that "opening the entire diocese to investigation was unduly burdensome and a violation of religious freedom protections."* (The lady and her lawyer wanted to review 5 years of records from the Diocese's 81 parishes and 41 schools to see how well the morality clause was implemented)



I'm sure there's plenty of 'material' to support a thread like this...as long as you don't give a balanced picture, right?

*LSN

Absolam

Really interesting piece... and an even more interesting addendum from Lazybones32!
Fascinating to see how a presentation of accurate facts can so significantly alter how you see something.

Peregrinus

Mother Jones is not exactly positioning itself as a dispassionate newspaper of record. They proudly own labels like “left”, “pinko” and “progressive”. All of which is fine. No problem at all. But it does mean that, if your seeking to make a judgment about particular events, you probably want to be reading more than just Mother Jones before you do.

As Mother Jones presents it, the notion that they “have absolute immunity from going to trial” is one the Catholic church has come up with, “because religious liberty”. The actual facts are that the plaintiff is suing under Title VII of the Civil Rights Act; Title VII contains two explicit exemptions for religious employers; the diocese explicitly denies that these exemptions give it a blanket immunity, but it does argue that these exemptions do cover the claim being brought by the plaintiff - i.e. it says that this particular case comes within both exemptions.

You can reasonably have opinions as to whether these particular exemptions should exist at all, but the fact is that they do. And they are not the result of church lobbying, but of the American conception of the separation of church and state. (Unless you think that “separation of church and state” is itself the result of church lobbying, of course.)

And you can have opinions - if you care to look into the detailed facts and arguments - as to whether the diocese is correct in arguing that the exemptions protect it in this case. But even if you disagree with the diocese’s position (and, for what it’s worth, based on a fair degree of ignorance, I do disagree with it, at least in part) it’s neither helpful nor accurate to suggest that the diocese is simply inventing a supposed general immunity for itself grounded vaguely in “religious liberty”. The diocese isn’t claiming a general immunity, and what they do claim is not grounded in “religious liberty” but in the explicit wording of the legislation that the plaintiff has invoked.

The issue really comes down to this. Title VII, the law that the plaintiff is suing under, contains two possibly relevant exemptions. One refers specifically to religious schools (the plaintiff in this case was employed as a teacher in a Catholic school) and says that it’s not unlawful to make employment decision based on the employee being “of a particular religion”. The second, and broader, exemption, says that the law in question “shall not apply” to a religious entity “with respect to employment of individuals of a particular religion”. This difference is that if you rely on the first exemption, you have a defence to any action that is brought - there’ll be a trial, and you will win - but, if you rely on the second exemption, you can object to the action being brought at all, since the law concerned does not apply to you. There’ll be no full trial.

The diocese is saying that the facts of this case are within both exemptions. The outrage seems to be based on an expectation that they would plead the “school” exemption, so there would be a trial, but not the wider exemption.

As far as I can see, the core issue is whether an exemption referring to “employees of a particular religion” extends to a case in which you fire an employee for failing to observe the precepts of that religion. They cite various past cases in which the courts have upheld, under these exemptions, decisions to fire employees for failure to adhere to religious tenets. I haven’t read those cases, but my guess would be that these would have to be fairly central, defining tenets of the religion concerned before you could say that breaching them meant you could no longer be regarded as having that particular religion. (This is where I suspect the church may lose.)

But if the church wins on that issue, it looks to me as if they’re right to say that they come within both exemptions. Both exemptions revolve around the question of whether an employee is “of a particular religion”. I don’t easily see how they could come within one but not the other.

Hotblack Desiato

lazybones32 wrote: »

Did this woman sign a morality clause - like all diocesan employees - freely agreeing that she would live in accordance with Catholic Teaching?

So what if she did? Why should such an unreasonable contract enjoy the protection of the law? Many jurisdictions place restrictions on the enforceability of unfair contracts.

The whole point of employment law is that the relationship between employer and employee is not an equal one - employers have more power and most societies recognise that employees therefore deserve some protection from the law in regard to fair recruitment, a fair wage and fair dismissal.

Such protection should not be dependent on the religious views or otherwise of one's employer, or whether one is paid from the public purse or not.

In Ireland, we have the worst of both worlds - religious employers free to discriminate in hiring and dismissal, yet these 'employers' don't even pay the wages of the employees, the state pays them from our taxes.

(The lady and her lawyer wanted to review 5 years of records from the Diocese's 81 parishes and 41 schools to see how well the morality clause was implemented)

It's perfectly fair to examine how other employees in similar situations were treated. This crops up quite often in employment appeals in Ireland e.g. a high profile case from a few years back where it was common for employees in an office to circulate offensive jokes by email, but only a small number of those caught doing so were disciplined. The employer's prohibition on that use of their email system was not unfair but the way they applied punishment was found to be unfair.

Peregrinus

"Morals clauses" aren't universal for Cathoilic church employees (or, SFAIK, the employees of other churches) in the US. Some dioceses require them; some do not. And, where they are required, the terms and content of the morals clause varies from diocese to diocese.

They are by no means confined to religious employments. They are common in contracts of employment for professional athletes, spokespersons, television presenters. They are almost universal in celebrity sponsorship contracts. (As we speak, among the many lawsuits that Lance Armstrong faces are claims for the return of sponsorship payments for breaches of morals clauses in his sponsorship contracts.)

Enforceability is always a problem. As in, there's always a lot of doubt over whether an employer can successfully enforce them. Their main value to employers, in fact, probably lies not in the extent to which they will enable a firing, but the value they have in setting expectations and creating a culture.

A wild guess here says that the diocese is not relying on any morals clause in the teacher's contract to justify their firing, precisely because in this case success on that ground is doubtful. Enforcing a morals contract which relates to someone's public or campaigning activities is one thing; enforcing a morals contract over medical treatment that someone has sought is quite another. My guess is that they'd be shot down in flames. That's why instead they are claiming to come within the Title VII exemptions. They think their chances are better.

lazybones32

Hotblack Desiato wrote: »

So what if she did? Why should such an unreasonable contract enjoy the protection of the law? Many jurisdictions place restrictions on the enforceability of unfair contracts.

"So what?" if someone reneges on their contracts: Are you defending such behaviour?* She was free to agree or disagree with it and she agreed and now that she dishonours it, there should be no ramifications?
Take your phony 'concern' about worker protection elsewhere...it's fooling no-one.

Hotblack Desiato wrote: »

In Ireland, we have the worst of both worlds - religious employers free to discriminate in hiring and dismissal, yet these 'employers' don't even pay the wages of the employees, the state pays them from our taxes.

What instances of discrimination have been experienced? There was something in the news about a year ago about RC schools having the ability to 'discriminate' in their hiring process but are there cases of this being actually implemented?





* Hypothetical Q: I'm not interested whether you agree with honouring contracts or not...unless we have to do business together.

Cantremember

Extraordinary to see the church claim that it is immune from legal proceedings. Still living in the past obviously. Inevitably given that revelations 3000 to 2000 years ago govern everything for them. A sorry organisation.

CelticRambler

Hotblack Desiato wrote: »

So what if she did? Why should such an unreasonable contract enjoy the protection of the law? Many jurisdictions place restrictions on the enforceability of unfair contracts.

... but the majority do not. Take, for example, the EU's Working Time Directive. Your employer can ask you to opt out of the 'reasonable' provisions of that directive and work 36-hour shifts that add up to more than 100 hours a week.

Similarly, some employers have zero-tolerance of drinking while on duty or off duty but identifiable as a company employee or being over-the-limit the morning after a night before. P45 and perfectly legal.

Just because some sections of the population don't agree with the ethos of a certain work-place environment doesn't invalidate a contract willingly entered into.

Cantremember

CelticRambler wrote: »

... but the majority do not. Take, for example, the EU's Working Time Directive. Your employer can ask you to opt out of the 'reasonable' provisions of that directive and work 36-hour shifts that add up to more than 100 hours a week.

Similarly, some employers have zero-tolerance of drinking while on duty or off duty but identifiable as a company employee or being over-the-limit the morning after a night before. P45 and perfectly legal.

Just because some sections of the population don't agree with the ethos of a certain work-place environment doesn't invalidate a contract willingly entered into.

Interesting on contract law but it's not about some sections of the population. It's whether the contract violates a more fundamental law: the rule of law of the state having priority over the make believe laws of fantastical organisations.

CelticRambler

It really doesn't matter two hoots how fantastical are the beliefs of the organisation, if they lay down terms and conditions and you agree to them just to get a job there, then you entered into a binding contract on that basis.

My own "day job" prevents me from doing plenty of things that would (allegedly) "bring the profession into disrepute". Like if I choose to have my own businesses premises, the sign over the door can't have letters more than 6 inches high. The fact that my colleagues in the rest of the world can work behind or under a 10-foot-high flashing advertisement doesn't make it any more or less illegal for me to do the same here.

The Church is the same, in this case: it's a corporate employer that requires it's staff to comply with behavioural standards that protect them from accusations of hypocrisy. It's really not any different to Microsoft prohibing their employees from using Apple technology or Mozilla software. How many MS workers would succeed in an unfair dismissal case if they were found to be preferring Firefox to IE?

I am unsure how it is discrimination to agree to something when you want a job, then violate the agreement. I think when we sign a contract for a job we are bound to it if we want to keep the job?

Hotblack Desiato

If you're a non-believer and want to be a primary teacher in Ireland, and don't lie in the interview, 96% of schools won't employ you.

Could Microsoft really fire an employee for using Firefox on their own computer in their own time ?

This woman took time off for medical treatment, the nature of that treatment is none of her employer's business.

Absolam

Hotblack Desiato wrote: »

If you're a non-believer and want to be a primary teacher in Ireland, and don't lie in the interview, 96% of schools won't employ you.

If you do lie, I don't imagine you can have a reasonable expectation of not getting fired if you're found out though.

Hotblack Desiato wrote: »

Could Microsoft really fire an employee for using Firefox on their own computer in their own time?

Presumably they could if it violated the terms of a legal contract of employment?

Hotblack Desiato wrote: »

This woman took time off for medical treatment, the nature of that treatment is none of her employer's business.

Unless it violates the terms of her contract.....

Peregrinus

Hotblack Desiato wrote: »

This woman took time off for medical treatment, the nature of that treatment is none of her employer's business.

Absolam wrote: »

Unless it violates the terms of her contract.....

Mmm. But there must be an argument that it is contrary to public policy to allow enforcement of a term in an employment contract which purports to cut across the doctor/patient relationship, and to allow the employer to dictate what medical treatment an individual may or may not accept.

I suspect the church is running the immunity argument here because, if the case is hear on the merits, they reckon they will lose.

CelticRambler

You're getting points confused here. The relationship between an employer and an employee is a private arrangement, so that is protected from the vague remit of "public policy" and the sanctity of a contract willingly entered into takes precedence.

Secondly, specific to this case, there is a difference between necessary medical treatment (e.g. blood transfusion) and voluntary, optional intervention. There is no public interest in granting everyone the right to have a foetus created on demand.

In this situation, the employer in question has a policy regarding assisted conception which is widely published and discussed in the public domain so the employee will have a hard time claiming to have been ignorant of the T&Cs. The only potential discrimination would be in respect of the tolerance of in vivo over in vitro treatments.

robindch

This one's less about religion in the law, but religion attempting to immunize itself from the law.

In this case, MLA Paul Givan, a DUP member and a creationist who's on a number of school boards, has introduced a bill to exempt religious people in the north from equality legislation.

http://www.pinknews.co.uk/2014/11/23/northern-ireland-dup-to-introduce-bill-to-exempt-religious-people-from-equality-laws/

Pink News wrote:

A DUP politician in Northern Ireland has unveiled plans to introduce a ‘conscience clause’ – which would allow religious people to ignore equality laws and discriminate against gays. Asher’s Baking Company made headlines this year when it refused the request of a gay rights activist for a cake showing the message ‘Support Gay Marriage’, above an image of Sesame Street’s Bert and Ernie.

The Equality Commission has since stated that this act broke anti-discrimination laws – but the bakery says it will make a stand for its ‘Christian’ principles. Today, MLA Paul Givan has pledged to introduce a private member’s bill which would effectively void parts of equality laws – by allowing religious people freedom to discriminate against gays based on their ‘conscience’. He said: “This clause will enhance equality legislation.

“Equality is about ensuring that everybody in society is allowed to live out their lives. “We now are heading towards a community where it’s not just about live and let live – people are now saying, ‘you need to affirm my particular lifestyle and if that goes against your conscience, you have to do that’. “That’s not equality; that’s intolerance.”

He has the backing of First Minister Peter Robinson, who told delegates at the DUP conference: “I have become increasingly alarmed at the uneven pitch upon which rights and equality issues are played out. More and more the balance is tipped against people of faith. “This has been recently demonstrated by the treatment meted out to the Ashers Baking Company.

“I believe in freedom of conscience. There will often be competing rights and freedoms but, nobody should be compelled or coerced into supporting, sanctioning or promoting views or opinions which conflict with their strongly held religious convictions.” “The publicly-funded Equality Commission has launched an unjustified attack on a small Christian family business. This is simply bullying. “I contend that the Equality Commission is seeking to use the Ashers case to add a further layer of restrictions on Christian behaviour and practice.

In an unprecedented move, Mr Robinson also called for DUP members to come forward to contribute to the bakery’s legal costs. Mr Givan is expected to shortly introduce a consultation on introducing a ‘conscience clause’ provision. Northern Ireland already lags far behind the rest of the UK on equality measures – banning same-sex marriage and refusing to lift the lifetime ban on gay men giving blood.

Vivisectus

Funny:

A woman has IVF treatment and is fired for actions that are "against the catholic ethos".

One of the responses is "Lots of companies will fire someone if they show up drunk, or drink while being visible as a member of the company, or when they arrive with a hangover"

That is not an equal comparison, though: it is reasonable to expect a worker to be fully compos mentis, functioning and responsible while representing the company. All these things directly impact someone's ability to do a job: they cannot represent a company while drunk. it is not a moral consideration, but a practical one that can be directly linked to performance at work and impact on the company.

In this case even the representation angle would not work: it is not something visible that would impact that way people view the organisation in question.

In Ireland, the law is really quite simple:

The Employment Equality Act 1998 outlaws discrimination in employment on nine distinct grounds:
• Gender
• Family status
• Marital status
• Age
• Disability
• Sexual orientation
• Religion
• Race
• Membership of the traveller community.

The scope of the legislation is comprehensive and covers discrimination in relation to:
• access to employment
• advertising
• conditions of employment
• equal pay for work of equal value
• promotion
• collective agreements
• training
• work experience.

This law would not allow me to offer a contract that makes a person promise not to date people with a different skin-color: we are not allowed to demand discriminatory conditions of employment. Even if someone signed such a contract, we could force the employer to change it. So the "They are in breach of their contract" line of reasoning does not really hold: the contract has parts in it which the law (here in Ireland at least) explicitly forbids.

And yet, we see contracts with conditions of employment that discriminate based on religion all the time, and because of the religious nature of the organisations this is not considered to be breaking the law. If you are gay, you can simply be sacked by a catholic school for no other reason that being gay and having a relationship. I am sure the ole "Catholic Ethos" cover-all can be easily applied to IVF treatment too.

Freedom of religion, in this case, is treated as more important than equality. Oddly enough, you can discriminate based on religion in the name of religious freedom!

Freedom of political affiliation is not granted this special status. For example, we do not protect far-right political groups in this way: they are not allowed to have a white Irish-only hiring policy, and if they would try to add anything like that to their contracts of employment they would be challenged in court and penalized.

Brian Shanahan

Vivisectus wrote: »

Freedom of religion, in this case, is treated as more important than equality. Oddly enough, you can discriminate based on religion in the name of religious freedom!

Freedom of political affiliation is not granted this special status. For example, we do not protect far-right political groups in this way: they are not allowed to have a white Irish-only hiring policy, and if they would try to add anything like that to their contracts of employment they would be challenged in court and penalized.

But the thing is that this conception of "freedom" of religion isn't really freedom, it is the allowance of certain religions to opress others who do not share their beliefs. Freedom of religion in a proper constitutional and judicial sense means that everybody is free to exercise their beliefs or lack thereof in any way that they wish in their private lives, providing that such exercise doesn't harm or otherwise impede other people in the goings about of their private lives. Allowing certain religious denominations get outs from contract law, and equality law is the exact opposite of freedom of religion, as it is properly recognised.

Vivisectus

That is the amazing result: you can be discriminated against (and thus have your freedoms curbed) because of your religious beliefs, in the name of freedom of religion.

Try to stop it? Evidence of oppression and how religious freedom is under attack!

CelticRambler

Vivisectus wrote: »

One of the responses is "Lots of companies will fire someone if they show up drunk, or drink while being visible as a member of the company, or when they arrive with a hangover"

That is not an equal comparison, though: it is reasonable to expect a worker to be fully compos mentis, functioning and responsible while representing the company. All these things directly impact someone's ability to do a job: they cannot represent a company while drunk. it is not a moral consideration, but a practical one that can be directly linked to performance at work and impact on the company.

This argument falls down when the contract states that you can be fired for being identifiable with the company, whether or not you are actively representing your employer at the time. It's not a question of whether or not you can do your job, but whether or not your employer extends its definition of "representation" into your private life. That is considered "reasonable" in many professions (and there are many people who find themselves unemployable having forgotten what they signed up to years beforehand).

Vivisectus

CelticRambler wrote: »

This argument falls down when the contract states that you can be fired for being identifiable with the company, whether or not you are actively representing your employer at the time. It's not a question of whether or not you can do your job, but whether or not your employer extends its definition of "representation" into your private life. That is considered "reasonable" in many professions (and there are many people who find themselves unemployable having forgotten what they signed up to years beforehand).

I have not seen anything of the kind here in Ireland - what companies have those clauses? None of the ones I have worked for have had any such clauses, nor am I aware of anything like that being enforced?

Absolam

robindch wrote: »

This one's less about religion in the law, but religion attempting to immunize itself from the law.
In this case, MLA Paul Givan, a DUP member and who's on a number of school boards, has introduced a bill to exempt religious people in the north from equality legislation.

But there's a wonderful flip side to this story too! Mr Givan obviously sees some political capital in claiming he's going to bring forward the bill (which wouldn't actually exempt religious people in Northern Ireland from equality legislation, but insert a freedom of conscience clause in the legislation which prevents people from being compelled or coerced into supporting, sanctioning or promoting views or opinions which conflict with their own convictions) given the current reactions to a looming court case in Northern Ireland.
Essentially a bakers in Northern Ireland is likely to be prosecuted as a result of refusing to ice a slogan they disagreed with on a cake.
Whilst initially the Equality Commission said they intended to prosecute them for illegal discrimination against a customer based on sexual orientation, they now appear to have broadened their scope; the latest legal threat covers discrimination based on sexual orientation, religious belief, and political opinion. You could easily form the impression that the EC are determined to prove the bakers are guilty of something, they just don't know what yet...

Brilliant the way there's often more than one side to a story

Peregrinus

CelticRambler wrote: »

You're getting points confused here. The relationship between an employer and an employee is a private arrangement, so that is protected from the vague remit of "public policy" and the sanctity of a contract willingly entered into takes precedence.

Not at all. Private contracts entered into between individuals are frequently rendered void or unenforceable on the grounds of public policy. Contracts of gambling, for instance; you can’t sue to enforce a bet (even with a licensed bookmaker). Contracts for sexual services; there’s nothing criminal about a contract of prostitution, but it is contrary to public policy a prostitute (or a client) can change their minds, and the contract cannot be enforced nor can any other remedy be claimed. Indeed, contracts of employment generally are unenforceable in that you can’t compel somebody to turn up and work for you as agreed - you can just sue him for damages for failing to do so. Compelling somebody to work is contrary to public policy - it’s too much like slavery.

CelticRambler wrote: »

Secondly, specific to this case, there is a difference between necessary medical treatment (e.g. blood transfusion) and voluntary, optional intervention. There is no public interest in granting everyone the right to have a foetus created on demand.

Depends on what you mean by “necessary” medical treatment. Infertility isn’t usually a fatal medical condition, but it’s certainly a medical condition for which people can and do seek treatment, and which may not resolve without treatment. Unless you think medical treatment is only “necessary” for fatal conditions, I’d say treatment of infertility is just as “necessary” as, say, treatment for irritable bowel syndrome or migraine or erectile dysfunction. And there’s an obvious public policy issue in allowing employers to dictate what medical treatments employees may or may not seek for the medical conditions from which they suffer.

Peregrinus

Vivisectus wrote: »

I have not seen anything of the kind here in Ireland - what companies have those clauses? None of the ones I have worked for have had any such clauses, nor am I aware of anything like that being enforced?

Actually, there is some scope in Irish law (and common law generally) for this. If you're employed in a position where your character, etc, is important, and character defects can reflect badly on the business, then character defects that emerge in your private life are your employer's concern. There was a case a couple of years ago of a district justice who was found to have forged a will when a solicitor in private practice. As it happens, she resigned, but clearly that would have been grounds for removing her, even though her dishonesty was never manifested in anything she did in the course of her office as a district justice. Similarly there's a case in which a partner in a professional firm - I forget which profession - was thrown out of the partnership after being convicted for taking a (private, not work-related) train journey without buying a ticket; that was held to be justified. And while these two cases both deal with illegal acts, there's no general rule that it's only illegal acts that can reflect badly on your employer or injure your ability to fulfill the role you have taken on.

So, yes, if you are employed in a position in which character and/or and representation of the firm/instutution is an issue, what you do in your private life can definitely be a legitimate concern for your employer. And "teacher" is such a position.

But the courts have to strike a balance balance between the professional role someone takes on and respect for private life. You could argue that it's hypocritical to take a job as a teacher in a Catholic school but not abide by Catholic moral teaching but, still, I think the courts will take the view taht seeking medical treatment is private and personal in a way that forging a will or riding a train without a ticket is not, and so it entitled to a greater degree of protection from interference by employers.

Besides, look what happened here. This teacher told her employers that she was receiving fertility treatment because, I assume, she needed medical leave and had to offer an account of why. But nobody else would have known of the nature of the treatment she was seeking if the diocese hadn't fired her, and said why. In the circumstances they must at least share responsibility for any embarrassment to the school or any weakening of its mission, and it seems harsh to fire her for a situation which they helped to create.

Vivisectus

I could object that it seems a very different proposition: we are comparing adherence to religious rules to committing criminal offenses - and even in that case I have to say the case of sacking for not buying a train tickets seems very strange to me! Do you have more details?

It is like we are treating religious rules, which are essentially private things (neither the US nor Ireland are theocracies!) the same way we are treating criminal law, which we consider universally applicable. Forging a will is not grounds for sacking from some justice departments in the country of your example. These people are not being sacked because that particular justice department has a religious creed and they want to exclude people who do not adhere to it, as is the case of the school.

We still have not dealt with the problem that it is essentially unequal: I could also open up Ireland's first Male Chauvinist bakery and then state that it would be hypocritical for anyone who does not believe in inequality of the sexes to join, and say that there is scope for firing anyone when I decide they have not been sexist enough. I do not think equality laws would let me do this, either here or in the states.

Peregrinus

Vivisectus wrote: »

I could object that it seems a very different proposition: we are comparing adherence to religious rules to committing criminal offenses - and even in that case I have to say the case of sacking for not buying a train tickets seems very strange to me! Do you have more details?

Not immediately, I’m afraid. I’m speaking from memory, and I don’t have access to a cite. It was a pretty old case. The gist of it was that the guy concerned had been convicted and the conviction was reported in the papers; this would call his honesty and integrity into question; any lack of honesty and integrity would reflect on the firm - presumably his role in the business was one which required him to display honest and integrity; therefore they were justified in giving him the heave.

Vivisectus wrote: »

It is like we are treating religious rules, which are essentially private things (neither the US nor Ireland are theocracies!) the same way we are treating criminal law, which we consider universally applicable.

I think this misses the point. The issue here is whether the employer can discipline the employee because of something that the employee has done in his or her private life. It doesn’t matter whether the concern arises from religious reasons, or from secular ethical reasons, or because the matter concerned is a crime, or for any other reason. The problem might be neither religious nor criminal and still be a legitimate concern - somebody employed as a spokesman or educator for a responsible drinking campaign is revealed to be a binge-drinker, for example.

Just to be clear; I don’t think the church will (or should) succeed in saying that the employees private medical decisions are a legitimate concern for it. I’m just saying that position is not a complete slam-dunk; an employee’s private life can be a legitimate concern of an employer if there is a tension between what the employee does privately and the message they express on behalf of their employer. I think the court’s strike a balance between the employee’s right to privacy and the employer’s right to fidelity, loyalty and consistency. I happen to think that this case falls well to the wrong side of the balance. But the argument that the church would be running here isn’t something they have pulled out of the air. And it absolutely isn’t something that is only available to religious employers.

Vivisectus wrote: »

We still have not dealt with the problem that it is essentially unequal: I could also open up Ireland's first Male Chauvinist bakery and then state that it would be hypocritical for anyone who does not believe in inequality of the sexes to join, and say that there is scope for firing anyone when I decide they have not been sexist enough. I do not think equality laws would let me do this, either here or in the states.

Let’s assume that your male chauvinist bakery isn’t offending by e.g. refusing to sell to women. If it were, it wouldn’t be around long enough to have to worry about disciplining employees who were insufficiently chauvinist.

If you’re just running a conventional bakery but your policy is only to employ people who commit to the principles of male chauvinism, you’re cactus; it’s not a relevant criterion when employing somebody for a baking or sales job. Your policy will undoubtedly lead you to acts of indirect discrimination against, e.g., women, and you won’t be able to justify it by pointing to a legitimate requirement of the job. “Male chauvinism” is an arbitrary bolt-on to the business of bakery, and a “male chauvinist bakery” is not a good analogy for a “catholic diocese”, where Catholicism is pretty well intrinsic to the concept of “diocese”.

Take a closer analogy; you found the Male Chauvinist Society, dedicated to propagating the principles of male chauvinism, and you employ an educator who turns out to be egalitarian in his attitudes. Can you fire him?

Before you rush to judgment, turn the question around. You found the Egalitarian society, dedicated to promoting equality between the sexes and between persons of different sexual orientation. You employ an educator who turns out to have markedly chauvinist attitudes. Can you fire him?

I don’t think the answer to the question can depend on whether you or I prefer chauvinism or egalitarianism. If advocacy for chauvinism is lawful - and it is - then chauvinists have the same rights as employers as egalitarians do. I think the relevant issue here is not whether chauvinism or egalitarianism is more to our tastes, but whether the way in which the employee’s deviant attitudes (in either case) manifest themselves, whether they do so in a way which reflects on their ability to do the job they have been hired for, and whether they do so in a context in which, for reasons of privacy or otherwise, we feel employers should be forbidden to interest themselves in.

CelticRambler

Vivisectus wrote: »

I have not seen anything of the kind here in Ireland - what companies have those clauses? None of the ones I have worked for have had any such clauses, nor am I aware of anything like that being enforced?

Peregrinus has given some examples from Ireland. I can give you one general one from France: if you practise as a solicitor in France, you cannot be the director of a company. As a junior solicitor, employed by the senior partners, you decide you want to expand your horizons and sign up for membership of a UK not-for-profit association. In time, you get asked to stand as chairman of the regional division, on a voluntary basis, and you think this will look good on your CV, so you say yes, and sign the forms, overlooking the fact that the UK not-for-profit association is actually a corporate entity like any other and you have just taken on a directorship. A year or two later, someone's making enquiries for no particular purpose and your name pops up as a director, a fact that you didn't disclose to the senior partners. You're fired and face disciplinary proceedings.

No, this hasn't happened to me, but the situation is real and it happens, mostly due to a genuine lapse of judgement.

A quick scoot around Google will reveal plenty of not-so-genuine lapses, thanks to Facebook. Here are three that fit the description of 'what I do/say in my private life' but still got their doers/sayers fired:
http://www.iol.co.za/news/world/teacher-fired-over-facebook-pic-1.1023313#.VHSKdMn-vjY
http://www.ajc.com/news/news/local/snellville-youth-football-group-in-upheaval-over-c/nQnsh/
http://www.foxnews.com/story/2008/11/06/patriots-cheerleader-fired-after-facebook-swastika-photo/
Religion has nothing to do with it ...

Vivisectus

Well, religion does have something to do with in this case, but I do accept the point that there are other reasons why people get fired for associations that are deemed to reflect badly on an organisation.