Kim Davis Musings: When Employment Discrimination Is Responsible And Ethical—But Still Illegal

Kim Davis

It’s Kim Davis Day, when we will find out whether the recalcitrant clerk will step aside, allow her deputies to do her job, obey the judge, and not interfere with American couples who want to get married in Kentucky, or, as many expect, will again take her marching orders from God, defy the Supreme Court, start speaking in tongues, or find some other way to make a public nuisance of herself. The latter, we can only hope, will send her back to jail, and give Mike Huckabee, Ted Cruz, Bobby Jindal and some other Republicans an opportunity to grandstand.

The issue this raises for me is: Why would any employer  hire someone who reveals themselves as a Davis-level religious zealot?

One answer, of course, is that the law—you know, that thing Davis and her ilk think they can veto with a wink and a nod from God—forbids it. In the abstract, workplace anti-discrimination laws makes sense. Core American values like freedom of worship and equal protection under the law don’t mean a lot if employers can use categories like race, gender, age and religious beliefs to reject qualified job applicants. Yet what about when one or more of those qualities in extreme measures makes someone unqualified in real and tangible ways?

A religious zealot like Davis, for example, is a constant threat to find reasons in the Bible not to do her job. The argument, and I agree with it, behind anti-discrimination laws is that matters like external organs, color of one’s skin and what deity one was raised to believe in have no relevance to most jobs. That argument breaks down with zealots like Davis. If a job applicant arrives for the final interview wearing a giant cross and quoting Corinthians every other sentence, there is every reason for a responsible employer to think, “Uh-oh!” The job of someone running a business is to make the business run. Is it fair and rational to make a manager hire someone who gives strong indications that they are going to be an active disruption? You can’t ask a job applicant that question: that smacks of bias and discrimination. Now what? If your applicant has a sterling resume but dresses all in black and keeps saying, “Blessed be!”, can you not consider the possible liability issues if she turns a customer into a newt?

It isn’t just the religious who pose these quandaries. I am still bitter about a woman I hired when I was running a research foundation. A major project had lost its manager, and I had to hire a strong replacement, fast. The applicant seemed perfect. I explained that I needed someone who would be willing to really grind out the work fast to make up for lost time, that this was a crucial project to the foundation and also to the project funder, who was an important and powerful organization supporter. She assured me that she was committed and ready.

Two days after I hired her, she told me that she was pregnant, and that in addition to usual leave, she had to have reduced hours and special work arrangements as a result of prior problems with her pregnancies. She even had a note from her doctor.

I had no budget to take on extra staff to cover the responsibilities and time requirements she would not be able to fulfill. “You lied to me,” I said to her. “Not really,” she protested. “And I needed to find a job to cover my insurance before I started to show.”

That project crashed, and we lost a large yearly grant as a result. Two other employees on my staff lost their jobs; the new manager resigned shortly after she returned to work.

After that, I was a lot more careful, but careful cannot legally consist of manufacturing reasons not to hire someone when the real reason is that you suspect they are planning to get pregnant, or that they indicate that they are primed and ready to find racial offense in normal workplace interactions, or are likely to start taking orders from God.

I don’t see an obvious solution to this problem: it is another example of how laws passed to deal with ethics are clumsy, blunt instruments that can cause as many problems and injustices as they solve. Nonetheless, there is no question that choosing not to hire a potential employee who indicates that she or he is a likely Kim Davis is sensible and fair discrimination.

Unfortunately, it is illegal, and likely to stay that way.

Blessed be.

 

34 thoughts on “Kim Davis Musings: When Employment Discrimination Is Responsible And Ethical—But Still Illegal

  1. Unfortunately in Kentucky, she was elected! Rather then hired making it a bigger mess! One can only hope she does not get the vote of confidence from the citizens of that county again!

  2. For the record, I think all govt. employees should follow the law or resign and work to change the law, but Kim Davis was elected, not hired, and at the time she was elected there was no Supreme Court ruling on same-sex marriage. So, her religious beliefs would not have been a factor. In sanctuary cities, would choosing not to hire an employee who has staunch anti-illegal immigration views be “sensible and fair discrimination”? On college campuses, would choosing not to hire a qualified professor whose personal political views are of a conservative viewpoint be “sensible and fair discrimination”? Do you really believe such one-sided discrimination is not already rampant?

    • “In sanctuary cities, would choosing not to hire an employee who has staunch anti-illegal immigration views be “sensible and fair discrimination”?”

      Not an accurate analogy. The accurate analogy in this case would be “In cities that actually follow immigration laws opposite of some of the Left-opias that actively flaunt the law, would choosing not to hire an employee who is a virulent Leftist opening constantly harping on our immigration laws”

      ” On college campuses, would choosing not to hire a qualified professor whose personal political views are of a conservative viewpoint be “sensible and fair discrimination”?”

      No, but there is another false analogy. The role of professor and the role of law-enforcer is incredibly different, though I wouldn’t want my professors to be hyper aggressive about their views like you find most Leftist professors so enabled because they are supposed to inculcate dialogue and thought, not indoctrination.

      “Do you really believe such one-sided discrimination is not already rampant?”

      Oh, it is…especially in the Leftist Big Media, Big Law, Big Education, Big Entertainment complex.

  3. Another lawyer I know is the hiring partner for one of the major firms in NJ, obviously I won’t say which one, and he told me during coffee talk during a CLE conference that he interviews about 20 prospective associates each year, of whom they usually hire one or two depending on their needs. He also told me that he looks at hands, ties, lapels, etc., when deciding who is going to make the cut, although of course none of this is written anywhere. A young woman with a wedding ring, anyone with an ethnic pattern tie, or anyone with any kind of cause-oriented lapel pin is very unlikely to make the cut, the first to prevent just the kind of situation you described, where someone suddenly goes out on maternity leave, the second to prevent race huckstering, the third to avoid even a whiff of disruption in the office. On top of that there is also a policy posted in the break room that no jokes about any subject are allowed, since humor is unnecessary to doing the job and risky.

    On the subject of religion in the workplace, I think we are fast approaching the point where all religions are equal, but some are more equal than others. No workplace in their right mind would even think of denying a Jewish employee the high holy days off or pushing them into a position where they would have to work with products not deemed kosher (if they keep kosher). A lot are now taking the attitude of “the Muslims? Give them whatever they want,” from extended lunch breaks on Friday to wearing obvious clothing that might get in the way to refusing to deal with alcohol, dogs, whatever. However, if a Christian voices an objection to doing something against their principles, or wants Good Friday off (which you don’t necessarily get automatically), they get shot down as zealots.

    • On the subject of religion in the workplace, I think we are fast approaching the point where all religions are equal, but some are more equal than others. No workplace in their right mind would even think of denying a Jewish employee the high holy days off or pushing them into a position where they would have to work with products not deemed kosher (if they keep kosher). A lot are now taking the attitude of “the Muslims? Give them whatever they want,” from extended lunch breaks on Friday to wearing obvious clothing that might get in the way to refusing to deal with alcohol, dogs, whatever. However, if a Christian voices an objection to doing something against their principles, or wants Good Friday off (which you don’t necessarily get automatically), they get shot down as zealots.

      I wonder why that is.

      • Hmmm, because Jews tend to get litigious and Muzzies tend to get violent if they don’t get what they want? Just remember – where Muzzies are the minority, they are obsessed with minority rights; where Muzzies are the majority, there ARE no minority rights.

        • In a word, FEAR! Fear of an irrational, violent response to a rational, un-violent situation. If there is going to be such a response, it’s going to more than likely come from a Muslim male, aged 18-25.

              • If only one side is shooting then the other side will soon be dead. The next president needs to be taking the war on terror back into the Muzzie lands and the authorities need to be taking the war on cops back into the ghettos. And those of us who are bullied need to start taking it to the other side.

                • Agreed. But let’s not forget that we are the good guys. Yes, the barbarians are at the gates, but let’s make sure that he isn’t us.

                    • So far, it has not been. The Army, in particular, has repeatedly frowned on it. However, we have an administration that does NOT frown on it, will not even define the barbarians as barbarians, so the future looks a bit bleak.

    • There was a court case that answers the question of why Christians are ignored. The United Methodist Church was sued for discrimination because they required workers in the upper levels at the global headquarters to be members of the United Methodist Church. This limited the promotion opportunities for non-Methodists. The church showed precedents that the Catholic Church is allowed to require employees over a certain level to be Catholics. The Methodists lost the case. The judge explained that he could find no instance of the United Methodist Church attacking, torturing, or killing people over theological differences. He did find examples of that in the Catholic Church. Since the United Methodist Church doesn’t attack or kill people who disagree with them, their beliefs must not be important and therefore don’t need to be protected or respected.

      The courts, the media, the government, and the public at large cannot understand a religion of peace and forgiveness because it is too far from their own nature. They can only mock it and present examples of hypocritical and misguided Christians because to acknowledge the truth about Christianity would be to admit that their outlook on life is wrong.

      • (I’d like more details, but I can’t find it on Google. What’s the name of the case?)

        A government telling a religious institution how to run its own headquarters? That seems to me like it would violate the separation of church and state. So it’s a business enough that it can be regulated by the government but it’s a religion when it comes to requiring its employees to act in accordance with its values? I call foul. Never mind that the judge’s reasoning makes no sense, legally or otherwise.

        And what kind of pathetic person goes to work for a religion they don’t believe in and then complains because they don’t get the top jobs?

        If this keeps up, the affirmative rhetorical phrase, “is the Pope Catholic?” will be used to mean, “we’re not allowed to ask.”

  4. “On top of that there is also a policy posted in the break room that no jokes about any subject are allowed, since humor is unnecessary to doing the job and risky.”

    I wish I’d seen that forty years ago when I was applying to law schools in an effort to better support my family than I was able to as a high school English teacher. What else do you need to know about lawyers and law firms.

  5. I don’t really see what the difference is between Kim Davis and our current Justice and State Departments. I noticed the State Department defied a judges order, yet again, to turn over the documents they were ordered to turn over and the court did nothing. How many times have they done this? How many times did the IRS lie before Congress and the courts about their illegal activities involving Lois Lerner and the Justice Department? How many people are implicated in these illegal actions? A few thousand? More? The only difference between Kim Davis and the Justice and State Department employees is the gods they serve. Our government employees don’t serve the law and the people, they serve Hillary Clinton and Barack Obama as gods and even the courts are too afraid of these gods to act.

    Who is doing the most harm here? Some gay couples are being inconvenienced, without a doubt, by Kim Davis’ illegal actions. How many people have been harmed by turning the IRS into a tool for political revenge? How many people have been harmed by Hillary Clinton hinding her e-mail from the law, but exposing it to all of our enemies? Now look at the country’s priorities. Out of all of these people, who has been held accountable for their illegal actions?

  6. I used to sit next to the manager of our college’s sales force, and still remember a day he was discussing a recent interview. He admitted to his college that the fellow had a good set of skills, but pointed out that his most recent position was that of a pastor, and he had no interest in hiring any devout Christians onto the sales force. Apparently, no matter how qualified they were, the onus of constant lying and pressure wore too heavily on Christians, and they always either quit or had to be fired because they couldn’t keep their numbers up.

    I remember it because even his college was a bit taken aback, asking for verification several times to be sure she had heard him correctly.

          • I know the University of Phoenix (so called) uses boiler room sales operations but I guess I had assumed not for profit schools just had admissions people.

            • I am mildly amused by this article, Tex. When I got out of the Army and went back to school, my part time job and my VA Educational benefits got me through nicely. I finished my undergraduate degree and my graduate degree \and left UT/Austin without owing a single dime. But, then, my degree’s allowed me to go into private practice, and make a pretty good living, as well. Guess I shoulda borrowed a million bucks and majored in Underwater Basket Weaving.

              • Mildly is right. I’m not amused. The writing on the wall has been here for a century. Arbitrarily create a false demand or a forced supply where no naturally arising value is sought or needed and you screw up the system.

                No doubt my favorite progressive Krug-bot will be on shortly to tout that the system is perfectly fine. Ooh look over there, Trump is being a moron!

                Your VA Ed benefits in no way parallels the massive student loan crap we face.

                • That student-loan crap is a direct result of lack of responsibility and poor judgment. Also qualities we are not teaching anymore. And the VA benefits, at the time, were paid by the VA, they were not an account I had paid into during my enlistment.

                    • Sorry, buddy! I’m absolutely in agreement with you. What I was saying is that student loans should not be necessary, and very definitely should never be granted for majors that produce an unemployable degree. From what I can see, student loans are simply made so the student can afford to party while in college.

  7. Is it possible to write contracts wherein a person specifically agrees not to take particular actions, thus negating their potential threat? For example, agreeing not to take maternity leave until after a certain time, or participating in a company mediation program before attempting a lawsuit? Or is that in and of itself somehow unfair discrimination? I don’t get how people can genuinely believe it unfair to differentiate between people based solely on whether or not they do a job and are harmonious in the workplace. They must use many rationalizations.

  8. So, we have a federal employee who refuses to answer Congress’s questions about setting up an e-mail server that violated government policies. This server was used to violate several federal laws (Putting highly classified documents were on the server. Putting them there was against the law. There is no question that the law was broken). He states that he will not incriminate himself by testifying. So, we have a government employee who refuses to cooperate in an investigation about illegal activity involving national security in which he is a part. He has that right. He does not have a right to continue on in that job. Why is no one demanding that this guy be fired?

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