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.