I saw a news report last night about an unwed mother who was working for a church.  She was employed as a preschool teacher for the First Baptist Church of Dallas.  When it was discovered she was pregnant, and the church obviously knew she was unmarried, they called her to the carpet and asked a lot of questions employers aren’t allowed to ask, they reduced her wages, and even forced her to sign a statement that said she wouldn’t have sex anymore until she was married.

Here’s the quandary: She’s suing them for employment discrimination based on her gender and pregnancy.  Here are my thoughts based on a comment I left on Slacker’s site in response to his post on the topic.  He’s torn as I was last night.  He also made the comparison to why Hooters can discriminate but the church can’t in this case.  This is what I said:

When I saw this on the news last night, I was with you: I was torn between religious freedom and anti-discrimination/equal employment.  Thankfully, I’ve had time to sleep on it and think about it more, and now I feel the religious freedom aspect must yield to the discrimination/employment claim.

You brought up Hooters and I’m glad you did since it’s a perfect example.  They can’t be sued for discrimination based on their hiring policies since the people they hire are integral parts of the product they sell.  The same is true for gentlemen’s clubs (e.g.,  a male stripper can’t sue them to get a job dancing there) and orchestras (e.g.,  someone who plays the spoons can’t sue them to get a seat on the stage) and many other businesses.  Chinese restaurants are another good example (as well as most ethnic eating establishments).  Capitalism trumps equal employment and anti-discrimination when employees are part of the product sold.  Think sports teams: Can a person in a wheelchair sue a basketball team to get a place on the court?  We know people thus handicapped can play the sport, so why is this discrimination allowed?  It comes down to this: Your product is your product, and any product that requires a specific kind of person (extremely selective hiring) is still a product despite whatever discrimination appears to be taking place.

Now, churches are different for two reasons: they’re protected by religious freedom and they aren’t businesses (under the law, although they really are).  These are important points.  Freedom of religion doesn’t negate political and campaign laws (which is why churches are forbidden from promoting candidates lest they lose their tax-exempt status as a result).  Church members aren’t allowed to burn down other churches simply because their faith tells them to do so.  A church that hires someone still has to pay the employment taxes and provide liability insurance while that person is on the premises.  The point is that religious freedom isn’t a get-out-of-jail-free card, and it’s not an exemption from following the law.  If a church wants to give up tax exemption and claim itself a business, it can then claim the people it hires are a part of the product it’s selling and can easily discriminate on those grounds (so long as they’re able to prove the discrimination is in fact based on product requirements).  But churches aren’t considered businesses and certainly won’t admit they’re selling a product, so anti-discrimination and equal employment laws should apply.

My main contention with the church’s view in this matter is the use of freedom of religion as a blunt object rather than the narrow tool it’s defined as in the Constitution.  People are guaranteed the right to practice whatever belief they want and are guaranteed the state won’t push any religion over another, but that’s as far as it goes.  When acting in the bounds of the non-religious world (e.g.,  as an employer), laws should apply the same way they do to everyone else.

So there’s my take on it.

I realize there are many who will think the church’s religious views actually take precedent over all other considerations, but I beg to differ based on my arguments above.  The ability to perform the job and the requirement of certain employee traits as part of the product both rule out the Hooters comparison.  Likewise, the religious freedom argument doesn’t hold water in my view based solely on the fact that the school is acting as an employer and doesn’t get to negate the law based on their faith.  If they chose not to pay employment taxes for their employees, would we dismiss it as being covered by their religious freedom?  No.  If the preacher stood behind the pulpit and made clear the church was supporting a specific political candidate, would we dismiss it as religious freedom despite it being illegal?  No.  So why should this case be different?  I don’t think it should.  Unless they want to become a business and define their employee requirements as part of the product they’re selling, I see no reason why she shouldn’t win as her claim is valid.