Connecticut Bar Journal
82 CBJ 365.
DISCRIMINATON ON THE BASIS OF RELIGION IS PROHIBITED! BUT WHAT IS RELIGION
Connecticut Bar JournalVolume 82, No. 4, Pg. 365DECEMBER 2008DISCRIMINATON ON THE BASIS OF RELIGION IS PROHIBITED! BUT WHAT IS RELIGION?By Bernard E. Jacques(fn*)Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice to discriminate on the basis of religion.(fn1) The Connecticut Fair Employment Practices Act makes it illegal to discriminate on the basis of an employee's religious creed.(fn2) Discrimination includes the failure to reasonably accommodate the employee's religious observances or practices.(fn3) But what is religion? What is a religious creed?(fn4)
On Sunday, March 19, 2000 an article appeared in the Milwaukee Journal Sentinel describing the World Church of the Creator, including an interview with one of its adherents, Christopher Lee Peterson.(fn5) The World Church of the Creator preaches beliefs that it labels "Creativity."(fn6) Among the tenets of Creativity are that people of color are "savage" and intent on "mongrelizing the White race, that African-Americans should be "shipped back to Africa," and that Jews control the nation and have instigated all of the wars in this century.(fn7) Creativity considers itself a "religion," but it does not espouse a belief in God or a Supreme Being, nor does it believe in an afterlife.(fn8) It derides such beliefs as "nonsense about angels and devils and gods and . . . silly spook craft."(fn9)
The article also featured a picture of "Reverend Peterson" holding a tee-shirt bearing a picture of Benjamin Smith, who had targeted African-Americans, Asian-Americans and Jewish-Americans in a two-day shooting spree before killing himself.(fn10) In the picture Mr. Smith was carrying a copy of The White Man's Bible, one of the two central texts of the World Church of the Creator, which offers a vision of a white supremacist utopian world of "beautiful, healthy [white] people, free of disease, pollution, fear and hunger."(fn11) According to the precepts of this "church," this vision can only be realized through the degradation of all nonwhites.(fn12 )Therefore, members, called "Creators," should live their lives according to the principle that what is good for white people is the ultimate good and advancing their interests at the expense of nonwhites is virtuous.(fn13)
On the day that the article was published, Christopher Lee Peterson was employed as a manager by Wilmur Communications, responsible for supervising eight other employees, three of whom were nonwhite.(fn14) In his six years of employment, Mr. Peterson had been disciplined once for a data entry mistake but had never been disciplined in connection with his role as a supervisor.(fn15) The day after the article was published, he was suspended without pay.(fn16) Two days later, he was reinstated but demoted to a lower paying position without supervisory duties.(fn17) In the written demotion notice, his employer referred to the article and characterized the World Church of the Creator as a "White supremacist political organization."(fn18) The letter stated:. . . It is your responsibility to train, evaluate, and supervise telephone solicitors. Our employees cannot have confidence in the objectivity of your training, evaluation, or supervision when you must compare Whites to non-whites.
Because the company, present employees, or future job applicants cannot be sure of your objectivity, you can no longer be a supervisor . . . (fn19)
Mr. Peterson sued, claiming that his employer had demoted him because of his religion in violation of Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's . . . religion."(fn20 )The statute defines "religion" to include "all aspects of religious observance and practice, as well as belief."(fn21) The statute imposes an "affirmative duty" on an employer to reasonably accommodate the "religious observance and practices of its employees, unless the employer can demonstrate that such an accommodation would cause undue hardship to the conduct of its business."(fn22) Thus, actions alleging employment discrimination on the basis of religion can be divided into two types: (1) that religion was a factor in an adverse employment decision, in which case religious discrimination claims are analyzed according to the traditional and well recognized standards of burden shifting found in McDonnell Douglas Corp. v. Green;(fn23) or (2) that the employee faced a conflict between his religious practices and the employer's dictates and the employer failed to reasonably accommodate the employee's religious practices.(fn24)
The threshold issue in Peterson was whether Mr. Peterson's beliefs constituted a "religion," as that term is understood in Title VII jurisprudence, or whether those beliefs constituted his personal views on race relations, which are not protected.(fn25) Determining whether a belief is religious is "more often than not a difficult and delicate task" and one to which courts are ill-suited.(fn26) Distinguishing a religion from other forms of belief has proven to be contentious and problematic.(fn27) In addition, the Supreme Court has cautioned courts that they must avoid making theological pronouncements or doctrinal interpretations under the guise of rendering judicial decisions.(fn28)
To avoid being drawn into a constitutionally dubious process whereby a court determines if the content of the employees' belief warrants the conclusion that those beliefs are a religion and the necessary predicate of that conclusion -an inquiry into the substance of those beliefs, courts have used a functional test. Courts inquire not into what the beliefs are, but, rather ask whether those beliefs "function as" a religion in the life of the individual.(fn29) By focusing on the function that the beliefs play in the life of the individual, courts avoid determining whether those beliefs are true or valid, which they cannot do.(fn30) If the beliefs "occupy the same place in the life of the [individual] as an orthodox belief in God holds in the life of one clearly qualified," courts should treat those beliefs as a religion.(fn31) To satisfy this test, plaintiff must show that the belief at issue is sincerely held and religious in his or her own scheme of things.(fn32) Further, courts must afford great weight to plaintiff's own characterization of his or her beliefs as religion.(fn33) As long as the belief is sincerely held and is religious in the individual's approach to life, the belief is religious regardless of whether it is "acceptable, logical, consistent or comprehensible to others."(fn34 )Therefore, to be a religion, a belief system need not have a concept of a God or a Supreme Being, or afterlife.(fn35) Purely "moral and ethical beliefs" can be a religion, provided that "they are held with the strength of religious convictions."(fn36)
Thus, the court in Peterson began its analysis by asking whether plaintiff had a "sincere belief" in Creativity and whether those beliefs were religious in his scheme of things.(fn37 )It found both undisputed. There was no evidence that plaintiff 's beliefs were not sincere and Creativity played a central role in his life. He was a minister in the World Church of the Creator and upon becoming a minister took an oath obligating him to adhere to all of the tenets of Creativity and live his life according to its precepts. The oath read, in part:I will fervently promote the creed and Program of Creativity as long as I live; that I will follow the Sixteen Commandments and encourage others to do the same; that the World Church of the Creator is the only pro-White organization of which I am a member so that my energies may not be divided; that I will remain knowledgeable of our sacred Creed, particularly of the books, Nature's Eternal religion and the White Man's Bible; that I will always exhibit high character and respect; and lastly, that I will aggressively convert others to our faith and build my own ministry. Plaintiff believed that, having taken this oath, he was required to put the teachings of Creativity into practice every day, which he claimed he did. Thus, Creativity for the plaintiff occupied the same place in his life as a belief in God would occupy for more mainstream theistic religions.
The employer in Peterson argued that plaintiff's beliefs could not be considered a religion because they were immoral and unethical directing the court's attention to the regulations of the Equal Employment Opportunity Commission ("EEOC"), which defines religious beliefs as "moral or ethical beliefs as to what is right and wrong."(fn38) Further, the employer argued, religious beliefs rest on notions of goodness, morality and the highest ideals of man, not on exclusion, hatred or killing.(fn39) The court was unpersuaded. It reasoned that the law protects religious beliefs, whether the employer, the court or society judges those religious beliefs to be moral or ethical.(fn40) Rather, the regulations ask whether the religious beliefs of the individual provide a mechanism for distinguishing right from wrong.(fn41) Creativity does so. It teaches that followers should live their lives according to what will best foster the advancement of white people and the denigration of...