A reader writes:
Say an employer/business owner — who happens to be an Orthodox Christian — interviews a prospective female employee for a job opening. During the interview she let’s it be known that she is a married mother with young children and is planning on putting them into day care if she gets the job. The employer does not give her the job because, according to his religious convictions, he thinks that such a mother should be at home raising her children.
Would this violate Title VII’s prohibition on gender discrimination (under the disparate treatment theory)? At first, it seems like an easy answer — an easy yes. But I think it all depends on how narrowly the statute is interpreted. He could argue he wasn’t discriminating against her on the basis of gender per se — perhaps he ended up hiring a woman who wasn’t in such a position — perhaps one whose children were grown up. . . .
Under Title VII, the easy answer is in fact the correct one: This is sex discrimination, because the employer is treating a woman with children differently than how he would treat a man with children (I assume that this is what he’s doing, given the fact pattern). Courts have considered this general issue, under the rubric of “sex-plus” discrimination — i.e., the discrimination is based on sex plus some other factor — in contexts very similar to those that the reader asks about (I think they generally involved discrimination against married women, so the “plus” was marital status, but some might have in fact involved discrimination against women with children), and found that such practices were discriminatory.
And this, I think, is the only sensible interpretation of the statute. True, the employer isn’t refusing to hire all women; but much discrimination is discrimination based on a prohibited factor plus something else. An employer who says “I’ll hire any white/male/non-Jewish candidate who passes my minimum criteria, but I’ll only hire a black/female/Jewish candidate only if the candidate’s credentials are stellar” is discriminating based on race/sex/religion (or national origin) plus something else; yet that’s quintessential employment discrimination, and the very sort of thing that the text of Title VII prohibits, and that Title VII was meant to prohibit.
If the employer actually believes that his religion prohibits him from hiring married women who would then put their children in child care (e.g., because he thinks that he would then be complicit with behavior that he think God frowns on), then he would be able to raise a Religious Freedom Restoration Act defense, since Title VII is a federal statute and RFRA still applies to federal statutes. But courts would, I think, reject the defense, because they would conclude that there is a compelling government interest in preventing job discrimination based on sex; that’s what the precedents strongly suggest (see, e.g., Roberts v. U.S. Jaycees).
(Note that this is a discussion of Title VII law as it is, and of how Title VII should be interpreted. There are lots of fascinating philosophical questions about whether we should have Title VII at all, what exceptions there should be to it if we do have it, whether preferences for women or nonwhites should be allowed, and so on; I’m too swamped to get into that now. This is a post about current law.)
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