united-states employment california discrimination religion
Religion is a &quot;protected class&quot; in California. Does that extend to things like homophobia/transphobia due to religion?
<p>In California, I'm pretty sure employers aren't allowed to discriminate based on religion (e.g. you can't not hire someone just because they're Jewish). In other words, religion is a &quot;protected class&quot;.</p>
<p>So Eric the Employer hires Chris the Christian. Afterwards, Chris goes to his personal social media and posts</p>
<blockquote>
<p>I believe in the Bible, which says &quot;The woman shall not wear that
which pertaineth unto a man, neither shall a man put on a woman's
garment: for all that do so are abomination unto the LORD thy God.&quot; -
Deuteronomy 22:5</p>
</blockquote>
<p>The public sees this as extremely transphobic, and it leads to a huge backlash against Eric's company (and Eric personally may find such views repugnant). Does Eric have any grounds to fire Chris, or is Chris protected from being fired over it?</p>
<p>To be clear, Chris <strong>isn't</strong> just spouting things like &quot;I hate trans people&quot; or calling for violence against them or anything. He is explicitly making religious statements that link directly to his commonly-accepted religion.</p>
<p>While I gave a random specific example here, my question is more general. If any religion has any views (e.g. homophobia, or they don't like pineapple on pizza, or what have you) that are controversial, is an employer not allowed to discriminate based on that?</p>

<p>The fact pattern that</p>
<blockquote>
<p>The public sees this as extremely [objectionable], and it leads to a huge backlash against Eric's company</p>
</blockquote>
<p>gives cover to Eric to fire Chris. That decision would be, provably, based on the expected impact on the company business, not on Chris’ views. The exact nature of the statement does not matter. For example, any of the following could conceivably snowball into a social media uproar:</p>
<ul>
<li>&quot;homosexual sex is sinful&quot;</li>
<li>&quot;pineapple does not belong on pizza&quot;</li>
<li>&quot;dogs are better than cats&quot;</li>
</ul>
<p>Of course, that is only the theoretical view when everyone agrees on what happened. In the real world, Chris would argue that Eric fired him for his views, Eric would argue that it was because of the public backlash, and the finder of fact would have to decide which is more credible. Some factors in play would be :</p>
<ul>
<li>if the &quot;social media uproar&quot; is five Twitter accounts with ten followers each, Eric's defense of &quot;there was an angry mob, I <em>had</em> to fire him&quot; will not seem very credible.</li>
<li>if Eric unwisely wrote to Chris that they are fired &quot;because of their statement&quot;, or worse, &quot;because of your fundamentalist Christian views&quot;, that will make Eric’s lawyer job much harder.</li>
</ul>
<hr />
<p>On a side note (not asked in the OP but raised in comments), Chris’s statement is undoubtedly protected speech under the First Amendment. That means the <em>government</em> cannot take legal action against Chris. However, <em>other people</em> can: Eric can fire him, Twitter can ban him, his buddy can stop going to the pub with him, his girlfriend can dump him, etc. As the trope goes, freedom of speech does not mean freedom from consequences.</p>

<p>I think just posting that quote cannot be the grounds for a backlash, since it undoubtedly exists. Of course it is transphobic, but it's also around 3000 years old. It will depend on what you make out of it.</p>
<p>When Chris says that he hates trans people or even calls for violence against them, that's certainly worse than when he just (based on this quote) expresses his opinion that people must not wear clothes of the opposite sex. That opinion is certainly protected by his freedom of speech, while calling for violence against someone is probably not.</p>
<p>Now if Chris really calls for violence and other illegal activities against trans people, and that backfires on Erics company, <em>that</em> would be a reason to fire him. Not because he's Christian, but because he's calling for violence (which, btw, is highly unchristian).</p>

<h2>Religious belief is not a protected class</h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<p>Anti-discrimination law does not cover religion at either the <a href="https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/discrimination/what-is-discrimination.html" rel="nofollow noreferrer">state</a> or <a href="https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/discrimination/what-is-discrimination.html" rel="nofollow noreferrer">Federal</a> level. Efforts by the conservative Commonwealth government to do so <a href="https://www.abc.net.au/news/2022-02-10/religious-discrimination-bill-transgender-protection-explained/100818484" rel="nofollow noreferrer">foundered</a> prior to their loss in the 2022 election.</p>
<h2>However, this is probably not grounds for <a href="https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal/about-unfair-dismissal/what-unfair-dismissal" rel="nofollow noreferrer">dismissal</a>.</h2>
<p>If the employee is protected against unfair dismissal under the Fair Work Act, an employer &quot;should not dismiss an employee if it is harsh, unjust or unreasonable&quot;.</p>
<p>Dismissal would almost surely be &quot;harsh&quot; as an &quot;extreme response to the situation&quot; with a &quot;very big ('disproportionate') impact on the employee’s economic and personal situation.&quot; This may not be the case if the employee were a 'face' of the organisation i.e. someone whose role involves representing the organisation and its values to the public; such a breach might reach the level where dismissal is not &quot;harsh&quot;.</p>
<p>The employer would certainly be within their rights to investigate the matter and counsel the employee about their behaviour and establish appropriate boundaries. Should the employee continue to make posts that are against the employer's policy, dismissal may be warranted.</p>
