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- Was American Apparel’s Lawsuit Against Former CEO Dov Charney Brought “By Reason of the Fact” That He Was Its CEO, Such That It Must Advance His Legal Fees?
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The AmLaw Daily
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Saints, Sinners, and Job Interviews
If you’ve had any sort of a working life, then you’ve been asked at least one odd question on a job interview. My personal favorite is why manhole covers are round.  But the oddest interview question I’ve ever been asked was: “Who was Saint Thomas Aquinas?” In my panic and surprise, my mind confused its files labeled “English Religious leaders named Thomas from the Middle Ages,” and I described for my interviewer Sir Thomas More. My interviewer – a leading lawyer at a very prestigious New York firm – sat silently for a moment, and then lectured me on how I apparently didn’t have the liberal arts background necessary to work at his firm.
Setting aside how happy I am, in retrospect, that I didn’t wind up working for someone who would grill me about medieval history, it is rare that any job interview question involves saints or other facets of religious belief. Most employers don’t delve into that subject with candidates – either they don’t care to inquire, or they don’t believe religion (or lack of it) has any bearing on the quality of an employee’s work.
Some employers see it differently – and expressly ask interview candidates very personal questions about religious beliefs. It should come as little surprise that these sorts of questions can lead an employer right into a hornet’s nest of legal issues. I’ll explain what some of those issues are in a minute.
But first let’s see how these problems arise. Our subject: the Voss Lighting Company of Tulsa, Oklahoma. Voss’s website says it has a business mission – to sell “premier lighting products” – and a biblical mission: “to ‘sell’ our lighting products so that we may ‘tell’ everyone we can about God’s soul-saving, life-transforming gospel message as Jesus instructed believers to do.”
Ed Wolfe applied for a job as an operations supervisor with Voss. Wolfe learned that Voss was hiring from a friend that had seen a posting about the job on a church website. After doing very well in an initial interview, Wolfe was passed on to a Voss branch manager for another interview. This is where religion got involved: that manager asked Wolfe to identify every church he had ever attended, where and when he was “saved,” and if Wolfe would mind coming in to work early for non-compensated Bible study. According to the complaint filed by the Equal Employment Opportunity Commission against Voss [link prior], the branch manager “expressed overt agitation and disapproval at Wolfe’s responses to his religious line of questioning.” Needless to say, Wolfe didn’t get the job. The EEOC’s complaint alleges that he was qualified for it, but that Voss’s failure to hire him “constitute[s] unlawful discrimination on the basis of religion,” and seeks back pay and other damages for Wolfe and an order preventing Voss from continuing to discriminate in its hiring.
Can an employer discriminate in its hiring based on religion? The short answer is: no. In very clear terms, Federal law – in Title 42, section 2000e-2(a)(1), to be precise – prohibits the refusal to hire a person “because of such individual’s race, color, religion, sex, or national origin.”
There is at least one limited exception to this general principle, and it applies when religious entities themselves are doing the hiring. This “ministerial exception” allows religious institutions to hire ministers and other employees with “religious duties” to hire employees that have theological views in line with the institution. And that makes sense: no one argues, for example, that a Presbyterian church has to hire an Episcopalian minister. The Supreme Court clarified the boundaries of this rule in January, holding in a case titled Hosanna-Taylor Evangelical Lutheran Church and School v. EEOC that teachers whose duties include religious functions fall within the ministerial exception.
But that isn’t a very common case – and it doesn’t help Voss Lighting here, because Voss is in the business of selling electric lighting fixtures, not showing theological “light” to unbelievers. There’s some evidence alleged in the EEOC’s complaint against Voss that the company was discriminating on the basis of religion: Ed Wolfe says he was told by the first interviewer that he was qualified and would be hired – but the second (superior) interviewer was the one who grilled Wolfe about his religious beliefs, and then declined to hire him.
Of course, there’s always another side to the story, and we’re curious to see what facts Voss Lighting Company raises in its defense. If the facts as the EEOC has plead them are true – that Wolfe was otherwise qualified and told he’d be hired until he was asked about being “saved” – then we’ll also be very curious to see what Voss Lighting’s arguments will be, in addition to any facts it can marshal in its defense.
Cases like EEOC v. Voss Lighting tend to turn on the strength of the evidence – the burden is generally on the applicant to either show religious discrimination “prima facie” (“at first blush”), or other direct evidence of discrimination (More on this from my colleague Jason Knott here). Meeting those standards can be difficult, because a disappointed applicant may not have been hired for any one of many legitimate reasons. For example, in Fischer v. Forestwood Company, the Tenth Circuit Court of Appeals held that a former employee demonstrated that a company refused to hire him back because he had left the Mormon church – but the employee had a tape of the company’s president saying that the employee wouldn’t be hired for that very reason. Additionally, if the employer can show a legitimate, non-discriminatory reason for not hiring the applicant, the employer can defeat the job applicant’s claim of religious discrimination in hiring. This was the case in Aron v. Quest Diagnostics, where the applicant alleged that he wasn’t hired because his religious beliefs would keep him from working on Saturdays, but Quest successfully argued that it required some Saturday time from all of its employees to keep up with its business, and making an exception would hurt morale.
Voss is one of the cases we’ll keep an eye on – especially as the evidence develops.
In the meantime, the takeaway for employers and their hiring executives wishing to stay on the safe side is: unless you are in the “religion business,” don’t ask job applicants about religion – and if you are in the religion business, use care even then.
For job applicants, remember that your religion doesn’t and shouldn’t matter to your prospective employer under federal law (unless you’re applying to work for a religious entity). And, it can’t hurt to remember the difference between Sir Thomas More and St. Thomas Aquinas.
 The Internet suggests that there are a variety of “correct” answers to this question, but my answer is that if the covers were square, they could easily be picked up, turned ninety degrees, and thrown down the manhole, thus leaving the manhole open for all sorts of calamities. I’m sticking to that answer, even though it suggests an evil twist of mind and/or a lawyerlike focus on negative outcomes. What’s your answer? See more of them here.