Althouse: "Suppose an employer just doesn’t want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish..."

February 25, 2015

"Suppose an employer just doesn’t want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish..."

"... and the employer doesn’t know he’s Jewish. No absolute certainty, and certainly Mr. Goldberg doesn’t say anything about being Jewish, but the employer just operates on an assumption that he’s Jewish, so no, he doesn’t get the job. Is that a violation?"

29 comments:

Sharc said...: If Congress wanted to provide protection for individuals "regarded as" being members of a particular religion by their employers, it would have said so in Title VII. Congress did provide exactly such protection for individuals who are "regarded as" disabled by their employers in the ADA.; 2/25/15, 9:15 PM
RecChief said...: how does one "look jewish"?; 2/25/15, 9:21 PM
William said...: Can A&F draw the line at burqas?......I think the scarf caught on as a way to advertise one's rejection of western values. I guess you can phrase that rejection as a support for modest dress. But then why work at A&F.?They're all into nude camping trips and many other activities that are not supportive of the high ideals of Islam.......Can a pork butcher demand that his employees not wear yarmulkes and scarves when selling his product?; 2/25/15, 9:22 PM
David said...: The worst thing for Abercrombie is their failure to show marketing skill or fashion sense. In the time that this case has been pending, the head scarf has become a fashionable accessory, even for non-muslims, in good parts of the fashion forward community. The girl in question is pretty, has a nice smile and could easily have fit into an Abercrombie image conscious photo.

On the other hand, I think that she was clueless (or is lying) in assuming that her scarf was not seen to have any religious significance, or any impact on hiring. She was 17 at the time, so cluelessness is a possibility.

My question is, what happens if a girl comes in a full Burka. If the court rules as the pundits seem to be predicting, that can't be far behind. How could someone not take the opportunity.

How would an employer "accommodate" for that. For the woman, it's either Burka or blasphemy, no middle ground. (I am assuming sincerity here.) What's a progressive, fashion forward employer to do?

Sounds like an exam question to me, or an element of one.

Multiculturalism is hard.; 2/25/15, 9:29 PM
Fritz said...: You can always mop floors in a head scarf.; 2/25/15, 9:32 PM
Sebastian said...: Easy.

Jews don't need to be accommodated, Muslims do.

After all, we know jobs for Muslims are the only way to stop ISIS.; 2/25/15, 9:39 PM
Michael K said...: "how does one "look jewish"?

The members of a Synagogue in Japan have been asking that question for years.; 2/25/15, 9:40 PM
Michael K said...: How about an employee who refuses to check out bacon and pork for a customer in the food store where she works ?

I guess you can have a "halal" checkput line.; 2/25/15, 9:44 PM
Revenant said...: This problem could be avoided by getting rid of the Constitutionally unsupported federal laws against private religious discrimination.; 2/25/15, 9:51 PM
MayBee said...: the head scarf has become a fashionable accessory, even for non-muslims, in good parts of the fashion forward community.

I don't believe this is true.; 2/25/15, 10:29 PM
MayBee said...: I really don't have a ton of patience for the head scarf. It's a way to self-otherize, isn't it?

I don't think it's a coincidence that the girls in the UK who have run away to join ISIS are head scarf wearers. They've separated themselves from the society they live in, yet crave social acceptance and romance. ISIS gives them that.; 2/25/15, 10:33 PM
Titus said...: The company was stupid giving any specifics as to why she wasn't hired.

The correct response is "we selected a candidate that most closely fit the requirements of the position".

But then again this is retail and Oklahoma...so they are dumb.; 2/25/15, 10:35 PM
Gahrie said...: "how does one "look jewish"?

Walk on the beach in Miami in pulled up Bermuda shorts, and socks and sandals.; 2/25/15, 10:43 PM
Bay Area Guy said...: Yes, it's a violation. Often the law has a "known or should have known" standard. Here it would be "known or reasonably believed" standard.; 2/25/15, 10:50 PM
mccullough said...: I think th court of appeals was right. There's no way employer's should be expected to know what religious accommodations are needed. She was a teenager at the time, so it's understandable she would assume that the employer must know that her religious beliefs required it. But the employee has to raise the issue. There are too many religions and variations within religions and individual beliefs within religions. The burden on employers to investigate the varieties of religious experience and then to educate their employees with hiring authority about the myriad potential religious accommodations would be overwhelming.

And Kagan and Ginsburg look kinda Jewish but Breyer not so much.; 2/25/15, 10:56 PM
Unknown said...: Suppose a woman applies for a job in the cosmetics section of a department store and insists on wearing a full burka, obscuring her entire face?; 2/25/15, 10:58 PM
Achilles said...: Because forcing all women to wear head coverings is progressive...

What happens when a doctor refuses to do clitoridectomies requested by Muslim parents?; 2/25/15, 11:08 PM
D.E. Cloutier said...: A Chinese woman in a cheongsam, a male Texan in blue jeans and cowboy boots, an Arab man in a thawb (thobe) and a bisht -- every person should reflect his or her heritage/culture at work.

Business is theater. We live in the age of globalization. Companies should exploit diversity. The message: We are a group of people from different cultures working together to serve you and make a better world.

- DEC (Jungle Trader); 2/25/15, 11:08 PM
Michael K said...: I examine applicants for the military. Today I saw a guy named Singh applying for the reserves. He is a great big guy built like a weight lifter and with very short hair. I said, "You are a pretty short haired Sikh." He laughed and said yeah. He also commuted on his build that, in the County Jail where he works as a guard, you have to be tough or they will roll right over you.

I asked him about female prison guards, about whom there have been quite a few stories lately. He just shook his head.; 2/25/15, 11:17 PM
Michael K said...: "Commented" God damn autocorrect !; 2/25/15, 11:17 PM
Beloved Commenter AReasonableMan said...: When Republican voters refuse to hire any Jewish congressman, are they in violation of federal laws against private religious discrimination?; 2/25/15, 11:56 PM
Anonymous said...: When white Democrats refuse to vote for black House and Senate members, are they violating racial discrimination laws?; 2/26/15, 3:22 AM
Larry J said...: Blogger Unknown said...
Yes, it's a violation. Often the law has a "known or should have known" standard. Here it would be "known or reasonably believed" standard.

That's about as absurd as the wife who says, "If you loved me, you'd know what I want!" People aren't mind readers.; 2/26/15, 5:33 AM
Hammond X. Gritzkofe said...: That was the problem, Justice Ginsburg responded. “They don’t have to accommodate a baseball cap,” she said. “They do have to accommodate a yarmulke.”

I'm gonna go get me a yarmulke and apply for a job at the kosher deli. If they don't hire me, I'll SUE SUE SUE!; 2/26/15, 5:38 AM
Hammond X. Gritzkofe said...: Nobody - not any bureaucrat, not any judge - nobody but the employer, whose money and business it is, should dictate who the employer must hire.

I can find no compelling public interest for it. To use the force of Government for that purpose is, like "affirmative action," to treat citizens unequally before the law.; 2/26/15, 6:05 AM
rhhardin said...: It's a structurally unstable path for the law to take.

Freedom of association works and is supposedly guaranteed.

The exception is monopoly businesses or private violence, both of which result in widespread loss of competition and need a legal remedy.

The idea that businesses didn't want to serrve blacks is wrong. They would be subject to violence if they served blacks.

If they're required to serve blacks, the threat of violence no longer works and the problem is solved, by forcing them to do what they'd want to do anyway.

That's a nice compromise on competing interests, leaving everybody mostly better off.

As for not liking Jews, work someplace else. The guy puts himself at a competitive disadvantage so it's not going to take over the market.; 2/26/15, 6:07 AM
Bobber Fleck said...: Are prospective employers required to provide a reason why job applicants were rejected?; 2/26/15, 6:24 AM
Lost My Cookies said...: If I don't get that job at the deli because of my neo-nazi face tattoo, I'm sueing the bastard!

Expect a call from Goldberg, Goldberg, and Lincoln, Mr Wang, you fascist!; 2/26/15, 6:37 AM
Laura said...: "A spokeswoman for the Equal Employment Opportunity Commission, which sued Abercrombie on her behalf, said Ms. Elauf was declining interview requests. . . . She was saving, she said, to open her own boutique. It would sell 'really fashion-forward stuff, cute stuff,' Ms. Elauf said."

Case study: How to finance a business on retail wages.

Unanswered question: Would Ms. Elauf be just as forthcoming with prospective employers about her observance of salat times, or are some tenets expendable?; 2/26/15, 10:14 AM