Non-permitted discrimination

July 5, 2011 12 Comments
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From the US, a story of religious discrimination. Yes, another one.

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“Growing up in this country where the Bill of Rights guarantees freedom of religion, I felt let down,” Khan, now a college student studying political science, said at a news conference.

Basically they sacked her for wearing it. Now, Abercrombie & Fitch may be being unfair, especially as she says she was wearing the thing when they hired her and told her it was fine as long as it was in company colours before firing her four months later, but I’m not sure that the Bill of Rights’ guarantee of religious freedom means what she thinks it means (my bold).

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Looks to me like what’s been guaranteed is that the federal government won’t establish an official state religion or prevent anyone believing in whatever they want to, but since it doesn’t say a single thing about forcing individuals and private businesses to do likewise it seems you might not be free to practise Religion A on the property of someone who practises Religion B or is determinedly secular. Perhaps I’m reading it wrong and perhaps someone who does actually know something about the US Bill of Rights might correct me, but surely if she’s right then wouldn’t it also allow foam-mouthed Christian lunatics like Pastor Terry Jones, he of Koran burning fame, to walk into his nearest mosque to preach his particular brand of intolerance?

It would seem strange to grant that kind of thing constitutional protection so I guess discrimination is allowed if it isn’t the government doing it. There used to be a word for that, one which is still used a lot but not actually lived up to much these days: freedom. If what Khan says is true then I sympathise with her and I’d agree that Abercrombie & Fitch were being arseholes, but they should be free to be arseholes if that’s what they want. Still, I wouldn’t be at all surprised if there isn’t some kind of law against it anyway. In fact I’d be surprised if there isn’t.

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12 Responses to Non-permitted discrimination

  1. Lord T
    July 5, 2011 at 11:55 am

    On the plus side if enough of these cases come up business people will avoid employing muslims in all but muslim companies just in case.

    • July 5, 2011 at 1:00 pm

      Yes, there’s that, isn’t there. Personally in employment terms I discriminate against everyone for similar reasons – the legal environment is such that it’s too much aggro for me to give anyone work. Not my decision – I’d be happy to hire a muslim, jew, Christian, Buddhist, pastafarian atheist or last Tuesday week-ist of any colour or gender (or hair colour ;-) ) if they wanted to work for a mad libertarian pro-drug abolitionist republican pommie headcase, but almost any potential employee could bankrupt me if they got upset, ill, pregnant or all three. The safest thing is to hire nobody at all and remain my entire workforce. I make much less money but have fewer worries.

      Shame because I really don’t have anything against muslims, and if there’s any truth in what Khan said I’d have a much greater dislike for Abercrombie & Fitch then muslims. But the only people I really hate are Collingwood supporters. My wife told me that they’re all feral and hating them is a condition of my visa, and of course she wouldn’t lie to me about a rival footy club.

      • July 5, 2011 at 5:52 pm

        But the only people I really hate are Collingwood supporters.

        I’m with you there, as a Cats supporter but I doubt too many this side of the world would know what you’re talking about – they’d probably think you were referring to cricket.

        • July 5, 2011 at 6:23 pm

          Ah, then you have extra reason to hate them this year since it looks likely to be Pies and Cats at the end of September. I thought about writing an expat pom’s guide to AFL footy but some of the rules sound so daft people would probably think I was making half of it up. That’s from trying to explain to a recently arrived expat Brit about not being allowed to hold on to the ball while being tackled and why pushing a guy out of the way to get a mark is banned but climbing up the poor bugger’s back and standing on him is not only allowed but gets a massive cheer. I could tell by his face that he thought I was going to start talking about drop bears next.

          • July 6, 2011 at 6:06 am

            Bring back the drop kick. ;-)

          • July 6, 2011 at 7:26 am

            You talking about Eddie McGuire? He’s definitely a drop kick, but you can’t really bring him back as he hasn’t been anywhere. :smile:

  2. July 5, 2011 at 3:15 pm

    You’re right in your interpretation. The restraint is upon Congress establishing a religion etc.

    • July 6, 2011 at 6:03 am

      That’s what I thought. There’s not really any other way to read that bit that I can see, which makes me wonder if Khan actually has read it.

      • July 6, 2011 at 7:19 am

        No need to read it, when others will ‘interpret’ it for you. For a fee, of course.

        • July 6, 2011 at 7:36 am

          I don’t think there’s much room for creative interpretation of that bit and I’m sure that the most liberal (the US meaning) of lawyers would put her straight, and as Bella says there is almost certainly other legislation so no need to try to twist the BoR to make it fit with what she believed it meant. In fairness to the Yanks, and obviously this is only the impression I get from down here, the Constitution in general and the BoR in particular doesn’t seem to come in for all that much creative interpretation with the big exception of the 2nd Amendment and all the arguing over what a militia is and where the comma was supposed to go. It seems to be more deciding whether subsequent legislation is or is not allowed under the Constitution. Potentially every law could be challenged and they have an awful lot of laws, so I suppose it’s inevitable that it’s going to happen a far bit.

  3. July 5, 2011 at 11:07 pm

    She may bring up the Bill of Rights in her defence, but as you point out, it’s not much of a defence.

    However, there are anti-discrimination laws with regard to employment and religion, which provide a much stronger case that she shouldn’t have been sacked for wearing the hijab. She may not know these things herself and bring up the Constitution instead, but she’s in the right (probably) nevertheless, if on other grounds.

    • July 6, 2011 at 6:17 am

      Yes, as I said, I’d be astonished if there isn’t another law covering her situation, and if they did indeed hire her with a hijab on and keep her on for some months while she continued to wear it then it ought to be that mythical Law Of Common Bloody Sense. Not, however, the BoR. I wonder if in the US there’s a tendency for people to jump up and down and yell ‘unconstitutional’ the same way people elsewhere, the UK for instance, bang on about their human rights.

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