Locus, Policy, and Free Will

A host of recent controversies raise basic questions about the nature and extent of employees' religious rights while on the job. Responses to this topic will answer the following question: How would you describe religious rights on the job? 

By: Scott M. Hamberger

Before responding to the questions concerning business and religious freedom, I find it useful to make some observations about the behavior in the two cases cited: the resignation of Brendan Eich as Mozilla CEO, and Abercrombie and Fitch’s (A&F) firing of Samantha Elauf for wearing a hijab. We must consider: i) whether the behavior occurred within the workplace and was connected to job responsibilities; ii) whether the behavior was known to conflict with workplace policy; and iii) whether the subject individual entered (or sought to enter) willingly into an employment relationship conditioned by limitations.

With regard to the locus of the behavior:

- In the case of Mr. Eich, the subject behavior (free expression on a socio-political matter) took place outside of work and had no connection to his job. By “connection” I mean direct connection, in that the activity neither arose from nor interfered with his duties to his employer. Further, I mean indirect connection, in that there seems to be no evidence that his private views resulted in prejudice in the execution of his duties with regard to his employer’s policies.

- In the case of Ms. Elauf, the subject behavior (wearing the hijab) would have occurred (since she was not hired it never actually occurred) in the workplace and would have had a connection to her job. Her prospective employer specifically, and openly, links personal appearance and attire to the job duties. 

With regard to whether the behavior was known to conflict with workplace policies:

- In the case of Mr. Eich, Mozilla had no policy in place that pertained to the private expression of socio-political viewpoints and Mr. Eich had no reason to expect that his behavior would present a problem. 

- In the case of Ms. Elauf, A&F had a clear policy in place with respect to personal appearance. Further, Ms. Elauf knew about these policies. Indeed, she knew that A&F might have concerns about her behavior and she sought to minimize those concerns during her interview.

With regard to whether the subject individual entered (or sought to enter) willingly into an employment relationship conditioned by limitations:

- Mr. Eich had been employed by Mozilla for years prior to the discovery (again, inasmuch as there was no policy, this must have been a discovery of such policy after the fact) of a conflict of personal behavior with company policy. Indeed, Mr. Eich was a co-founder of the company, so one could say that his relationship with the company actually predated any limitations on employment. Thus, conditions of the employment relationship changed around Mr. Eich in a manner that could not be said to be willing on his part.

- Ms. Elauf willingly sought to enter into an employment relationship that she knew to be conditioned by limitations that could affect her behavior. Knowing this, she could have applied elsewhere (one sees no evidence of coercion to apply for a job at A&F) but she chose to apply at A&F anyway.

I make these observations as a thought exercise in order to arrive at a response. To be clear, I do not make them for legal reasons, as those more erudite in such matters than I will argue Ms. Elauf’s case to the Supreme Court, and Mr. Eich has not sought legal recourse. Rather, I draw them in order to develop an ethical framework to analyze how an employer and employee can look at these questions in the employment relationship. Allow me to explain.

Locus matters:

- An employer, in the form of an executive acting on behalf of the company, has a strict duty to the company. That duty matters. After all, the company provides for the wherewithal of every family attached to it. The company provides the opportunity for personal and professional growth for each employee. The company provides goods and services that people need and rely upon it to make available to them. The company provides for the wherewithal of its vendors and the families and employees attached to them. I would submit that these facts indicate that executives should view themselves as stewards of a social good, if not a sacred trust, in their roles.

- As such, the most basic question about any employee must be whether or not the subject individual can and will perform. If so, then one must encourage and develop that performance. If not, then one must work toward separation in a way that recognizes the dignity of the individual but also recognizes that one’s company does not provide them the opportunity to realize their own potential.

- Beyond this basic question, an executive ought to be neutral about the personal choices of employees that do not affect work. While one may or may not personally agree with what an employee does outside of work, it is not within one’s purview as an executive to have an opinion. Should an employee seek to engage personally and share information about his or her life outside of work, then one can do one’s best to listen and respond as a fellow human being, but one must make it clear that such a private conversation has no bearing on professional roles.

Policies matter:

- The employment relationship is exactly that: a relationship. It is incumbent upon an executive to clearly define expectations within the context of what the company offers in terms of opportunity, culture, and compensation of all kinds. After all, employers compete for labor in a free market and people choose to work for them or not. For employees, having been given those expectations, it is incumbent upon them to accept them or to reject them. If they accept them, then they should abide by them (although they have every right to question them within appropriate channels). Else, they should seek employment elsewhere, as the free market provides.

- While the rules of the game may change over time, as any business must adapt to the rapidly changing conditions of the market, it is incumbent upon executives to properly communicate those changes and to allow for employees to adjust to them or to opt out.

Free will matters:

- Within the context of the employment relationship we must recognize that free will runs as a two way street. One does not seek to hire or to retain against the free will of employees. Nor should the employees seek to enter into an employment relationship expecting to force change on the employer. Yes, dynamic tension can be a good thing and one should want employees to challenge and question. But the employee should recognize that his or her ability to challenge does not equal an entitlement to change.

- So, at the end of the day, an employee has a right to go elsewhere and the employer must bear the risk of accepting that decision or choosing to accommodate that which the employee seeks.

To conclude, I submit that employers and employees would be well served to evaluate the matter of religious freedom and employment based on a common sense approach in which both parties make rational decisions undertaken on the basis of free will. 

Scott M. Hamberger is president and CEO of Integrus Holdings, Inc. 

This piece was originally authored on January 12, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

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