Transgender Woman Sues After Muslim Refuses Body Waxing Service

[ronburgundy]

BTW Tom, in contrast to your usual wonderfully hilarious sarcasm, this might be the most in depth serious argument I've heard you make.

Is it because you are a particularly hairy Canadian?

 

[ronburgundy]

No, you are absolutely incorrect. There are other ways to mitigate this.

If you hire someone who isn't willing or capable of doing the job they are hired to do, then it is the employer's responsibility to make certain someone is available to perform these tasks, if for no other reason... not to lose business.

Like I said, there are only two logical options, either she be fired and no Muslim's with similar views be allowed to be hired in such a job, or the employer goes out of business hiring extra people that do nothing most of the time. I assumed that even you couldn't be absurd enough not accept that alternative, but I was wrong.

Hiring those extra people does nothing to bring in more business, it massively cuts profits by about 1/3. If there were enough trans and males desiring the service to actually pay for another person, that person would already be hired and no need for the law to do anything about it. The company only has the one person besides the Muslim, because 99% of the time that is enough to serve all customer, and there are so few male customers. Likely that one person who will service men, actually spends 99% of their time servicing women. In a typical week, they are there and can service the rare male client. But this one week they were out sick. Hiring a third employee who is not needed hardly ever but only just to cover for the rare week when one person is out is a surefire way to go out of business. You should avoid making any major financial decisions if you can't grasp that.

The only alternative would be to require them to hire twice as many employees as they actually need, just in case 1 is out sick one day.

Actually, just one other person would have done.

First of all, just 1 additional could easily equal a 50% increase in employees. A small waxing company could have just 2 workers, both whom service females (because they are 99% of clients) and 1 who also services males. So, 1 additional employee is a 50% increase with nothing for that extra person to do 90% of the time but wait around just in case 2 males request the service at the same time.

That is nice and all, but as has been pointed out, there was supposed to be two people on staff. So clearly, this wouldn't have broken their business model.

Um, there are normally 2 people on staff, because that is enough to service all their customers. Hiring a third person means 3 people on staff for no reason other than to ensure at least 2 when one gets unexpectedly sick. it would increase their labor cost by 50%, which is most of their expenses.

 

[Emily Lake]

So, let me see if I understand your argument. You're saying that if a guy goes into an accounting office and is told "I'm sorry, the only accountants working today are part of the KKK. If you want someone who'll do taxes for black people, you'll need to come back tomorrow", there is no issue with that. Because he isn't being refused service because of his race, he's only having it delayed and the business is willing and has every intention of providing tax services to that customer, everything about the situation is fine and there should be no legal issues involved?

I don't think this is a reasonable analogy. In your case, only one of the parties involved is protected against discrimination - it's illegal to discriminate on the basis of race. Membership in the KKK isn't a protected attribute, so there's a very clear line here.

In the case referenced in the OP, however, both parties have protected attributes. That transgender patron is protected on the basis of gender, and the employee is protected on the basis of religion. That's what makes this a bit more tricky of a situation. Which attribute is "more" protected? Which of the parties involved should have their rights violated? Because at the end of the day, that's what's being asked for: That one party's rights trump the rights of the other on the basis of attributes that are otherwise equally protected.

In this specific case, I think I fall very slightly more on the side of the employee. For the patron, waxing would have been delayed but not denied. The employee, however, faces some risks that I think may be a bit glossed over by many of the participants in this thread. It's an unfortunate truth that many practicing muslims are quite sexist, and that physical contact with a male outside of her family could very feasibly result in bodily harm to the employee. In this case, it's not merely her religious freedom that is at risk, but potentially her health and wellbeing. To me, the risk of harm outweighs the risk of not getting waxed today.

I also, however, understand that the transgender patron wishes to be accepted and viewed as a woman. And as such, the employee's insistence that she is male would be seen as offensive. There's a pragmatic element to this, but I don't know the answer: Was the patron actively presenting as a woman, and could the patron effective pass as a woman?

While the patron may identify mentally as female, unless they can pass, then I think the muslim woman's objection to a clear violation of her religious precepts is both understandable and acceptable. Not because I share her views, but because I acknowledge that identity and presentation are not fungible.

 

[James Madison]

Yes, and the business was accommodating that in 99 out of 100 cases, as I stated. When you get to that 1 out of 100 cases, however, someone needs to lose out. The person who loses should never be the customer, however, since their right to receive services absent discrimination should be the thing that wins. If you have two cake makers in a shop, the anti-gay bigot can avoid making cakes for same sex weddings all he wants until the other guy doesn't show up when such a couple comes in and then the cake shop finds itself in a legal situation.

If you can't perform all the duties required of you in a job, you should not keep that job.

But these facts and your hypo doesn’t involve a refusal of service but instead a delay in service. A delay in service is not a refusal of service. The same sex couple can still get their cake and will still get their cake.

Here, there wasn’t a refusal, the person could’ve obtained a wax, it would’ve just been delayed. The business was willing and had every intention to provide a wax to the person.


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So, let me see if I understand your argument. You're saying that if a guy goes into an accounting office and is told "I'm sorry, the only accountants working today are part of the KKK. If you want someone who'll do taxes for black people, you'll need to come back tomorrow", there is no issue with that. Because he isn't being refused service because of his race, he's only having it delayed and the business is willing and has every intention of providing tax services to that customer, everything about the situation is fine and there should be no legal issues involved?

Under your example, no. Why? Oh, plenty of reasons. I’ll begin by discussing one in this post.

First, your example is different from the facts in the OP article. The OP article involved a religious belief of the employee, a protected characteristic (member of KKK is not), and the employer apparently sought to accommodate the employee’s religious belief. There are other significantly different facts I’ll mention below. The difference in facts is important because Canadian law requires accommodation of employees’ religious beliefs.

Under Canadian law, public accommodations are prohibited from discriminating in employment on the basis of religion. This ostensibly includes religious beliefs. Furthermore, as I suspected, employers MUST accommodate religious beliefs of applicants and cannot refuse to hire when the religious belief can be accommodated by the employer or there is an agreement to accommodate, so long as the accommodation doesn’t create an undue hardship for the employer.

Here, the business accommodated the religious belief of an employee, as required by law. The business achieved this accommodation by employing someone who would wax males. There is presently no evidence the business alleged an undue hardship associated with the accommodation.

Now, in complying with one part of Canadian law requiring employers to accommodate the religious beliefs of its employees, through no fault of its own, the business has a temporary gap in offering its services because one employee is sick.

The temporary inability of the business to offer a service was not the product or result of any malice, animus, ill will, disgust, disapproval, or moral condemnation of transgenders or because of gender. The temporary inability to offer service was a consequence of A.) compliance with the law to accommodate a religious belief of employee, B) other employee who would perform the service to accommodate the religious belief was out sick.

However, you want to condemn and deride a business owners’ sincere attempt to meet the demands of Canadian law by accommodating the religious belief of an employee as discrimination when a situation develops, partly out of the business’ control, when they temporarily cannot offer a service.

The fact the business is damned if they do, damned if they don’t doesn’t factor into your myopic calculus. The business, by your logic, should just choose whether it wants to be an appetizer for Scylla or Charybdis.

You want to compare these facts to someone hiring members of the KKK and who then refuse to service on the basis of race, go ahead. But your hypo isn’t parallel to a business seeking to accommodate a religious belief of an employee, has made arrangements to do so, and is then unfortunately confronted with a situation in which they temporarily cannot provide a service, which was not a result of any desire, intention, ill will, or disgust towards transgender or because of gender.

Now, to answer your hypo in the abstract, the answer is maybe, depending on the law and facts. There may be some instances where service delayed is service refused but in your example service could be given and would be given the next day. The goal of public accommodation law isn’t to immediately provide service when demanded or for the time demanded. The purpose is to ensure the service is at some point given by the business.

 

[Jimmy Higgins]

So, let me see if I understand your argument. You're saying that if a guy goes into an accounting office and is told "I'm sorry, the only accountants working today are part of the KKK. If you want someone who'll do taxes for black people, you'll need to come back tomorrow", there is no issue with that. Because he isn't being refused service because of his race, he's only having it delayed and the business is willing and has every intention of providing tax services to that customer, everything about the situation is fine and there should be no legal issues involved?

Under your example, no. Why? Oh, plenty of reasons. I’ll begin by discussing one in this post.

First, your example is different from the facts in the OP article. The OP article involved a religious belief of the employee, a protected characteristic (member of KKK is not), and the employer apparently sought to accommodate the employee’s religious belief.

Not exactly complete there. The defense wouldn't be "in the KKK", it'd be religious reasons why they can't service the blacks (see Loving v Virginia). The difference is that SCOTUS has said, and I'm paraphrasing, ~'That is a bullshit excuse.' This is why the whole KKK angle is relevant here, because at one point, the argument supporting people in the KKK was based on 'religious values'. That has since been denied.

Since then, it took quite a while to move on and include gays in there too, despite the petulant whining of Justice Scalia. This will eventually cover Transgenders as well.

There are other significantly different facts I’ll mention below. The difference in facts is important because Canadian law requires accommodation of employees’ religious beliefs.

Under Canadian law, public accommodations are prohibited from discriminating in employment on the basis of religion. This ostensibly includes religious beliefs. Furthermore, as I suspected, employers MUST accommodate religious beliefs of applicants and cannot refuse to hire when the religious belief can be accommodated by the employer or there is an agreement to accommodate, so long as the accommodation doesn’t create an undue hardship for the employer.

Here, the business accommodated the religious belief of an employee, as required by law. The business achieved this accommodation by employing someone who would wax males. There is presently no evidence the business alleged an undue hardship associated with the accommodation.

Now, in complying with one part of Canadian law requiring employers to accommodate the religious beliefs of its employees, through no fault of its own, the business has a temporary gap in offering its services because one employee is sick.

Other than under hiring? Are there just two employees for this company?

The temporary inability of the business to offer a service was not the product or result of any malice, animus, ill will, disgust, disapproval, or moral condemnation of transgenders or because of gender. The temporary inability to offer service was a consequence of A.) compliance with the law to accommodate a religious belief of employee, B) other employee who would perform the service to accommodate the religious belief was out sick.

Now this seems to be the case. What is unknown is the interaction between the customer and the owner on the phone. The customer could potentially be an absolute arse and wasn't accepting no for an answer as the owner tried to explain the situation and offer alternatives so the customer, while not getting the services immediately, could get them promptly. Or the owner might have been a jerk and said, 'hey, we can't do it, you are on your own.' This interaction would be pretty important to understand fully.

You want to compare these facts to someone hiring members of the KKK and who then refuse to service on the basis of race, go ahead. But your hypo isn’t parallel to a business seeking to accommodate a religious belief of an employee, has made arrangements to do so, and is then unfortunately confronted with a situation in which they temporarily cannot provide a service, which was not a result of any desire, intention, ill will, or disgust towards transgender or because of gender.

A question could be asked as to whether the religious objection holds water for a transgender person. Unfortunately, religious holy books have sucked in the long form of creating rules to deal with these sorts of things. It used to be acceptable to arrest people for inter-racial marriage on religious grounds... until it wasn't. Just because something was, doesn't mean it will always be. Certainly, there appears to be no malice on the part of the employee... but how much should that count for the consumer?

 

[Toni]

And from that same link

Carruthers said he called her back and explained that the female employee working that day was a practising Muslim who refrains from physical contact with males outside of her family.

So, it's not an issue about genitals. It's an issue about making physical contact with a certain group of customers from an employee who's job it is to make physical contact with customers. Given that this is the religious restriction she has in place, do you feel that she would have been fine providing the service if she'd been asked to do an arm or back wax? It sounds to me that she would still not be willing to do so and that's what I have a problem with.

Now, Brazilian waxes for men and women are different services and I have no issue with someone only providing one or the other and if that is why they denied the service, I'm on the spa's side. That wasn't the stated reason for denying the service, however. That stated reason was that this was due to a religious restriction and that religious restriction was that she could not make contact with men in general, not only specific parts of men. Denying services to a customer on the basis of their gender should be as illegal as denying it because of their race or their sexual orientation.

The customer wasn’t denied services on the basis of her gender but because she requested a service this business does not provide, according to the business owner.

We do not know what would have happened if the customer had requested a back waxing. The business normally would have someone to fax a back or arms of a man—except that that staff member was ill. A customer does not have the right to demand that a specific staff member provide service.

Both customer and service provider have rights to have their own particular sense of privacy respected. A male does not have the right to services from a female if she objects nor does he have to accept services from a woman if he objects. A woman does not have the right to demand services from a male if he objects nor does she have to accept services from a male if she objects.

 

[ronburgundy]

So, let me see if I understand your argument. You're saying that if a guy goes into an accounting office and is told "I'm sorry, the only accountants working today are part of the KKK. If you want someone who'll do taxes for black people, you'll need to come back tomorrow", there is no issue with that. Because he isn't being refused service because of his race, he's only having it delayed and the business is willing and has every intention of providing tax services to that customer, everything about the situation is fine and there should be no legal issues involved?

I don't think this is a reasonable analogy. In your case, only one of the parties involved is protected against discrimination - it's illegal to discriminate on the basis of race. Membership in the KKK isn't a protected attribute, so there's a very clear line here.

In the case referenced in the OP, however, both parties have protected attributes. That transgender patron is protected on the basis of gender, and the employee is protected on the basis of religion. That's what makes this a bit more tricky of a situation. Which attribute is "more" protected? Which of the parties involved should have their rights violated? Because at the end of the day, that's what's being asked for: That one party's rights trump the rights of the other on the basis of attributes that are otherwise equally protected.

In this specific case, I think I fall very slightly more on the side of the employee. For the patron, waxing would have been delayed but not denied. The employee, however, faces some risks that I think may be a bit glossed over by many of the participants in this thread. It's an unfortunate truth that many practicing muslims are quite sexist, and that physical contact with a male outside of her family could very feasibly result in bodily harm to the employee. In this case, it's not merely her religious freedom that is at risk, but potentially her health and wellbeing. To me, the risk of harm outweighs the risk of not getting waxed today.

I also, however, understand that the transgender patron wishes to be accepted and viewed as a woman. And as such, the employee's insistence that she is male would be seen as offensive. There's a pragmatic element to this, but I don't know the answer: Was the patron actively presenting as a woman, and could the patron effective pass as a woman?

While the patron may identify mentally as female, unless they can pass, then I think the muslim woman's objection to a clear violation of her religious precepts is both understandable and acceptable. Not because I share her views, but because I acknowledge that identity and presentation are not fungible.

I disagree with the basis of your argument, though I agree that it is an invalid analogy for the reasons I argued in this prior post.

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

The issue is not her religion, but whether her employer can be allowed to hire someone who, for any reason, doesn't want to look at, touch, get near, the genitals of strangers of the opposite sex. Given the inherent physical intimacy of the job and how that inherently ties into gender, it seems reasonable the we might give an exception here as we arguably should with prostitution and treat it as a specific exception to rules designed to generally prevent an employee from refusing service based on gender. Note that this would not be special rights for some people but a right given to all people when in that particular circumstance, no matter their stated reason for not wanting to touch the genitals of one sex versus the other.

 

[Emily Lake]

I'm curious what you guys' views would be if we turned the tables. What if the transgender person was the employee and the muslim woman was the patron? If the muslim woman had come in for a waxing and was presented with a transgender but apparently male employee to perform the service, and had refused service on the basis of her religion proscribing contact with a male outside her family... where would you fall?

I'm wondering if this is really a case of one protected right being considered "better" than another... or if it's at heart a case of employee obligation versus patron's expectation.

 

[Angra Mainyu]

This isn’t a typical refusal. This is not an instance in which the business refused to ever provide the service. Rather, this scenario is more akin to the business willing to provide the service but unable at the precise moment to provide the service, but is willing to provide the service at a another time and/or date and time.

I don't know whether a refusal like that would be allowed. "I'm sorry, but the person who provides service for men is on sick leave". Is that allowed? I hope so, but what do I know?
Anyway, if you take a look at the onwer's comments, it was a definitive refusal: they just don't perform wax services on male genitals, which is what was asked. I don't know whether that's compatible with Canadian law. I hope so.

In any case, I did not know whether it was a definitive refusal or a temporary one, but the point I was trying to make was of a different sort, and I realize I haven't been clear. I was speculating on how the court could rule in a way that avoids the minefield of different left-wing identity-politics tabboos. I didn't mean to predict an outcome, though if the events happened as the complainant claims, I think the company is in trouble for the outing.

But these facts and your hypo doesn’t involve a refusal of service but instead a delay in service. A delay in service is not a refusal of service. The same sex couple can still get their cake and will still get their cake.

Here, there wasn’t a refusal, the person could’ve obtained a wax, it would’ve just been delayed. The business was willing and had every intention to provide a wax to the person.

I thought so at first, but that is not what the owner says. He says they refused because they do not perform waxes on male genitals. The person who wax males (and was sick), only does so in other parts of the body. In light of the owner's comments, it seems that the fact that one of the employees was sick is irrelevant to the case. He probably told the complainant about the employee out on sick leave before he was aware that the complainant wanted a wax service on male genitals. Or else, he is lying about something - whatever that is. But regardless, the owner is saying the refusal was definitive, and it's very improbable that he's lying about that.

Here's a case from Australia that seems similar, if the owner's description in the Canadian case is roughly correct:
https://www.buzzfeed.com/lanesainty/trans-woman-brazilian-wax?utm_term=.lmZOaBkrR#.ju9QavqNO

https://www.pinknews.co.uk/2016/07/...se-she-hasnt-had-gender-reassignment-surgery/

 

[Loren Pechtel]

There's more information, some of it, the CEO's side of the story here:
https://www.google.com/amp/windsors...uman-rights-complaint-against-windsor-spa/amp

Assuming he's describing it accurately the salon did nothing wrong. The woman was seriously out of line and should be subject to a defamation suit.

 

[Emily Lake]

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

I see what you're saying, and at a high level it certainly makes sense. I'm just not so sure that in application it's reasonable. As a very attenuated example, consider a restaurant that hires an orthodox jewish person as their dessert maker (I don't know what the fancy name is). Let's assume, for the sake of argument, that the dessertier was hired with a full understanding that they were an orthodox jew, and that they would not be dealing with any pork or shellfish, and everyone is happy. Now imagine that one of the other chefs is out sick, and there is a need for some employee to taste a dish that contained bacon. By your argument, if the orthodox jew (who was hired with the understanding that they were jewish and would not handle pork or shellfish) refused to taste the bacon-containing dish... that would be grounds for firing them. And that doesn't really seem to make any sense to me.

 

[Loren Pechtel]

Frankly, I think that at least some posters are responding to this thread in the way that they are because the staff member is female and/or a Muslim.

As it was initially presented she was refusing to work on a trans woman because she was "male". As such, discrimination.

However, according to the owner the requested service was a Brazilian. She was being asked to work on a penis. I have no problem with her not doing that.

That aside, the skill set for performing a Brazillian wax on males and on females is not the same. It would be unwise for anyone to insist on service from someone not trained and experienced in delivering the type of wax they require. And beyond foolish for a service provider to attempt to do so. This would open the service provider up to a potential law suit.

It seems like this was a win/win situation for the complainant with an opportunity to file suit no matter what.

If she actually knew the situation I would agree. I think it's more likely she's simply trying to take advantage--but either way she's in the wrong.

 

[dismal]

they just don't perform wax services on male genitals, which is what was asked. I don't know whether that's compatible with Canadian law. I hope so.

Obviously you've missed some indoctrination. This case involves a female's genitals. If the shopowner had said "we don't wax scrotums" instead of "we don't wax male genitals" maybe he'd have a policy leg to stand on.

 

[Jason Harvestdancer]

they just don't perform wax services on male genitals, which is what was asked. I don't know whether that's compatible with Canadian law. I hope so.

Obviously you've missed some indoctrination. This case involves a female's genitals. If the shopowner had said "we don't wax scrotums" instead of "we don't wax male genitals" maybe he'd have a policy leg to stand on.

I can just picture it now. "We don't care if you are male or female, if you have a vag we will wax it and if you have a dick we won't. So men or women with vags come get your waxing."

 

[James Madison]

So, let me see if I understand your argument. You're saying that if a guy goes into an accounting office and is told "I'm sorry, the only accountants working today are part of the KKK. If you want someone who'll do taxes for black people, you'll need to come back tomorrow", there is no issue with that. Because he isn't being refused service because of his race, he's only having it delayed and the business is willing and has every intention of providing tax services to that customer, everything about the situation is fine and there should be no legal issues involved?

I don't think this is a reasonable analogy. In your case, only one of the parties involved is protected against discrimination - it's illegal to discriminate on the basis of race. Membership in the KKK isn't a protected attribute, so there's a very clear line here.

In the case referenced in the OP, however, both parties have protected attributes. That transgender patron is protected on the basis of gender, and the employee is protected on the basis of religion. That's what makes this a bit more tricky of a situation. Which attribute is "more" protected? Which of the parties involved should have their rights violated? Because at the end of the day, that's what's being asked for: That one party's rights trump the rights of the other on the basis of attributes that are otherwise equally protected.

In this specific case, I think I fall very slightly more on the side of the employee. For the patron, waxing would have been delayed but not denied. The employee, however, faces some risks that I think may be a bit glossed over by many of the participants in this thread. It's an unfortunate truth that many practicing muslims are quite sexist, and that physical contact with a male outside of her family could very feasibly result in bodily harm to the employee. In this case, it's not merely her religious freedom that is at risk, but potentially her health and wellbeing. To me, the risk of harm outweighs the risk of not getting waxed today.

I also, however, understand that the transgender patron wishes to be accepted and viewed as a woman. And as such, the employee's insistence that she is male would be seen as offensive. There's a pragmatic element to this, but I don't know the answer: Was the patron actively presenting as a woman, and could the patron effective pass as a woman?

While the patron may identify mentally as female, unless they can pass, then I think the muslim woman's objection to a clear violation of her religious precepts is both understandable and acceptable. Not because I share her views, but because I acknowledge that identity and presentation are not fungible.

I disagree with the basis of your argument, though I agree that it is an invalid analogy for the reasons I argued in this prior post.

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

The issue is not her religion, but whether her employer can be allowed to hire someone who, for any reason, doesn't want to look at, touch, get near, the genitals of strangers of the opposite sex. Given the inherent physical intimacy of the job and how that inherently ties into gender, it seems reasonable the we might give an exception here as we arguably should with prostitution and treat it as a specific exception to rules designed to generally prevent an employee from refusing service based on gender. Note that this would not be special rights for some people but a right given to all people when in that particular circumstance, no matter their stated reason for not wanting to touch the genitals of one sex versus the other.

In both countries, Canada and U.S., employers are required by statutory law to accommodate the religious beliefs of an employee.

In this instance her religion is relevant to the extent the business seeks to accommodate her religious belief, which is required by law. The business didn’t complain the accommodation created an undue hardship. These laws strike a rational balance between employment, religion, and business interests.


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[James Madison]

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

I see what you're saying, and at a high level it certainly makes sense. I'm just not so sure that in application it's reasonable. As a very attenuated example, consider a restaurant that hires an orthodox jewish person as their dessert maker (I don't know what the fancy name is). Let's assume, for the sake of argument, that the dessertier was hired with a full understanding that they were an orthodox jew, and that they would not be dealing with any pork or shellfish, and everyone is happy. Now imagine that one of the other chefs is out sick, and there is a need for some employee to taste a dish that contained bacon. By your argument, if the orthodox jew (who was hired with the understanding that they were jewish and would not handle pork or shellfish) refused to taste the bacon-containing dish... that would be grounds for firing them. And that doesn't really seem to make any sense to me.

Your gut hunch is correct. Under federal law, those facts would strongly suggest the employer should accommodate the religious belief of the employee.


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[ronburgundy]

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

I see what you're saying, and at a high level it certainly makes sense. I'm just not so sure that in application it's reasonable. As a very attenuated example, consider a restaurant that hires an orthodox jewish person as their dessert maker (I don't know what the fancy name is). Let's assume, for the sake of argument, that the dessertier was hired with a full understanding that they were an orthodox jew, and that they would not be dealing with any pork or shellfish, and everyone is happy. Now imagine that one of the other chefs is out sick, and there is a need for some employee to taste a dish that contained bacon. By your argument, if the orthodox jew (who was hired with the understanding that they were jewish and would not handle pork or shellfish) refused to taste the bacon-containing dish... that would be grounds for firing them. And that doesn't really seem to make any sense to me.

It would be equally unreasonable to fire that chef whether or not they were jewish and no matter what their reason for not wanting to taste the bacon dish. The unreasonableness stems from the fact that it is a rare one-time situation that doesn't impact their long term ability to perform their job at a high level.

However, if the chef worked at a bbq pork place and it was standard expectation that the chef regularly taste the dishes, then it would no less reasonable and no more unjust or illegal to not hire or fire a person who claimed a religious reason for not doing so than one who simply said they don't like pork. Their reason is irrelevant. It only matters that they refuse to perform a regular duty of the job the employer is hiring the person to do.

 

[ronburgundy]

I disagree with the basis of your argument, though I agree that it is an invalid analogy for the reasons I argued in this prior post.

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

The issue is not her religion, but whether her employer can be allowed to hire someone who, for any reason, doesn't want to look at, touch, get near, the genitals of strangers of the opposite sex. Given the inherent physical intimacy of the job and how that inherently ties into gender, it seems reasonable the we might give an exception here as we arguably should with prostitution and treat it as a specific exception to rules designed to generally prevent an employee from refusing service based on gender. Note that this would not be special rights for some people but a right given to all people when in that particular circumstance, no matter their stated reason for not wanting to touch the genitals of one sex versus the other.

In both countries, Canada and U.S., employers are required by statutory law to accommodate the religious beliefs of an employee.

In this instance her religion is relevant to the extent the business seeks to accommodate her religious belief, which is required by law. The business didn’t complain the accommodation created an undue hardship. These laws strike a rational balance between employment, religion, and business interests.


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First, the accommodation only must be made if it does not have an impact on the employers ability to run a profitable business and serve their customers. Her refusal to serve males objectively costs the company money and makes it impossible for them to serve potential customers whenever to only other employee who can provide that service is out for any reason.

Second, even that accommodation for non-impactful religious observances is a clear and direct violation of the US 1st Amendment and the principle of government neutrality on religious views. It is not a "a rational balance" but inherent government endorsement of some religious views over others. What the neo-theocrats in robes have ruled is irrelevant to the inherent logical reality that such accommodations favor particular religious views over others.
There is no such thing as a view that is objectively "religious" versus not. Any and every preference can be religious, and the only distinction is whether the person with the preference says "it is religious". A religious view the came into being a minute ago and is held by a single person is no less a religious view by any rational definition than one held by millions for centuries. The whole point of the 1st Amendment is the protection of individuals against the majority, not to give preference to traditional or more widely held views.
Any determination by the law that only some views qualify is the very definition of state endorsement of some religious views and bias against other views.
In addition, saying that religious reasons are more important and worthy of accommodation that non-religious reasons is an inherent endorsement of religion.

Neutrality with regard to whether an act is religious is the only position that does not violate the 1st Amendment and the principle of secular government. That means a firing specifically because an act is motivated by a religion is not allowed, but considering religious motivations rather than just the act itself is also not allowed.

 

[James Madison]

I disagree with the basis of your argument, though I agree that it is an invalid analogy for the reasons I argued in this prior post.

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

The issue is not her religion, but whether her employer can be allowed to hire someone who, for any reason, doesn't want to look at, touch, get near, the genitals of strangers of the opposite sex. Given the inherent physical intimacy of the job and how that inherently ties into gender, it seems reasonable the we might give an exception here as we arguably should with prostitution and treat it as a specific exception to rules designed to generally prevent an employee from refusing service based on gender. Note that this would not be special rights for some people but a right given to all people when in that particular circumstance, no matter their stated reason for not wanting to touch the genitals of one sex versus the other.

In both countries, Canada and U.S., employers are required by statutory law to accommodate the religious beliefs of an employee.

In this instance her religion is relevant to the extent the business seeks to accommodate her religious belief, which is required by law. The business didn’t complain the accommodation created an undue hardship. These laws strike a rational balance between employment, religion, and business interests.


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First, the accommodation only must be made if it does not have an impact on the employers ability to run a profitable business and serve their customers. Her refusal to serve males objectively costs the company money and makes it impossible for them to serve potential customers whenever to only other employee who can provide that service is out for any reason.

Second, even that accommodation for non-impactful religious observances is a clear and direct violation of the US 1st Amendment and the principle of government neutrality on religious views. It is not a "a rational balance" but inherent government endorsement of some religious views over others. What the neo-theocrats in robes have ruled is irrelevant to the inherent logical reality that such accommodations favor particular religious views over others.
There is no such thing as a view that is objectively "religious" versus not. Any and every preference can be religious, and the only distinction is whether the person with the preference says "it is religious". A religious view the came into being a minute ago and is held by a single person is no less a religious view by any rational definition than one held by millions for centuries. The whole point of the 1st Amendment is the protection of individuals against the majority, not to give preference to traditional or more widely held views.
Any determination by the law that only some views qualify is the very definition of state endorsement of some religious views and bias against other views.
In addition, saying that religious reasons are more important and worthy of accommodation that non-religious reasons is an inherent endorsement of religion.

Neutrality with regard to whether an act is religious is the only position that does not violate the 1st Amendment and the principle of secular government. That means a firing specifically because an act is motivated by a religion is not allowed, but considering religious motivations rather than just the act itself is also not allowed.

The legal standard under the statute is “undue hardship” and not “ability to serve customers...run a profitable business.”

Her refusal to serve males objectively costs the company money and makes it impossible for them to serve potential customers whenever to only other employee who can provide that service is out for any reason.

There aren’t any facts to suggest the company is losing money because of her employment, or any meaningful amount to factor as an undue hardship. If the amount of lost money is de minimis, then the allegation of undue hardship is more difficult to substantiate on such a basis.

The “impossible for them to serve whenever” argument is not demonstrably an undue hardship since it is possible those customers could be scheduled at another time and willing to do so.

Second, even that accommodation for non-impactful religious observances is a clear and direct violation of the US 1st Amendment and the principle of government neutrality on religious views. It is not a "a rational balance" but inherent government endorsement of some religious views over others.

This is factual false, both in the U.S. and Canada. The federal statute is applicable for all religious beliefs and doesn’t single out any particular religion or religious belief for protection under the statute.

A religious view the came into being a minute ago and is held by a single person is no less a religious view by any rational definition than one held by millions for centuries.

This is not necessarily true under the law. It’s possible but more a remote possibility.

Neutrality with regard to whether an act is religious is the only position that does not violate the 1st Amendment and the principle of secular government

The 1st Amendment doesn’t prohibit the government from achieving a compelling state interest that employers fire or refuse to hire a person because of a particular religious belief when they can be employed without being an undue hardship to the business. That is a logical balance.

In addition, saying that religious reasons are more important and worthy of accommodation that non-religious reasons is an inherent endorsement of religion.

The statute doesn’t determine whether religious beliefs are “more important” than non-religious beliefs, and interpreting an anti-discrimination statute as stating religious beliefs as more important than non-religious beliefs is untenable.


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[Emily Lake]

The law should (and the US Constitution does, when properly applied) only protect religion from being directly discriminated against purely due to its particular religious nature. It shouldn't and doesn't give people special rights to do things that anyone else cannot do for other non-religious reasons. Requiring that an employee do job X is only illegal if X itself is an illegal. The fact that they don't want to do it for religious reasons should enter it no more than if they don't want to do it for any other reason. In fact, the KKK is religiously rooted and asserts, quite correctly, that their xenophobic bigotries are grounded in the Bible and religious tradition. Given the strong discriminatory, bigoted nature of all Abrahamic religions, motives based in religion are actually more likely to be morally and legally unacceptable than non-religious reasons.

In sum, if it is legal for an employer to hire a person to do task X, then it is legal for them to fire/not-hire the person who refuses to do task X, no matter what that person's excuse is. Any exemptions for religion inherently gives people with select religious views more political and legal rights than other people, which is what actually does violate the 1st Amendment.

I see what you're saying, and at a high level it certainly makes sense. I'm just not so sure that in application it's reasonable. As a very attenuated example, consider a restaurant that hires an orthodox jewish person as their dessert maker (I don't know what the fancy name is). Let's assume, for the sake of argument, that the dessertier was hired with a full understanding that they were an orthodox jew, and that they would not be dealing with any pork or shellfish, and everyone is happy. Now imagine that one of the other chefs is out sick, and there is a need for some employee to taste a dish that contained bacon. By your argument, if the orthodox jew (who was hired with the understanding that they were jewish and would not handle pork or shellfish) refused to taste the bacon-containing dish... that would be grounds for firing them. And that doesn't really seem to make any sense to me.

It would be equally unreasonable to fire that chef whether or not they were jewish and no matter what their reason for not wanting to taste the bacon dish. The unreasonableness stems from the fact that it is a rare one-time situation that doesn't impact their long term ability to perform their job at a high level.

However, if the chef worked at a bbq pork place and it was standard expectation that the chef regularly taste the dishes, then it would no less reasonable and no more unjust or illegal to not hire or fire a person who claimed a religious reason for not doing so than one who simply said they don't like pork. Their reason is irrelevant. It only matters that they refuse to perform a regular duty of the job the employer is hiring the person to do.

It seems as if you feel that the muslim employee's refusal to wax the transgender person is something that would merit her firing. But to me, that scenario seems much closer to the situation that I used as an illustration. This was also a very rare, one-time situation that doesn't impact her long-term ability to perform her job at a high level.