Save America's Workers from the Church of Wokeness |
Woke corporations in America today think they can fire employees for their politics without legal liability. They're mistaken.
Last month, Disney fired actress Gina Carano after she compared Nazi persecution of Jews to the persecution of conservatives in America today on social media. The company called her post "abhorrent and unacceptable," declining to explain why her co-star Pedro Pascal remains employed despite his own posts comparing Trump supporters to Nazis. Distinguished science reporter Donald McNeil was recently ousted from The New York Times for vocalizing the n-word when answering a high school student's question about whether a classmate deserved to be suspended for saying it. Emmanuel Cafferty, a Latino truck driver for San Diego Gas & Electric Company, was fired for accidentally—yes, accidentally—making the "OK" hand gesture used by some white supremacists.
Last week, Coca-Cola reportedly provided online training to its employees teaching them to "try to be less white," claiming that "to be less white is to: be less oppressive, be less arrogant, be less certain, be less defensive, be less ignorant, be more humble," and that "white people are socialized to feel that they are inherently superior because they are white." Coca-Cola later said the video was "not a focus of our company's curriculum."
Other examples abound, and they are all cases of religious discrimination—but not in the way you might think.
It's well established that an employer violates Title VII if it fires an employee because of his religious beliefs. But was Ms. Carano expressing religious beliefs through her social media post? Very unlikely. Nor was Mr. McNeil when he uttered the racial slur, nor was Mr. Cafferty, who said nothing at all. But that's not the end of the matter.
Often forgotten is that Title VII protects not only religious employees from being fired for their beliefs, but equally protects nonreligious employees from being fired for refusing to endorse an employer-mandated religion. "What matters in this context is not so much what [the employee's] own religious beliefs were," the Seventh Circuit federal court of appeals said in the 1997 Venters v. City of Delphi. What matters is whether the employee was "fired because he did not share or follow his employer's religious beliefs."
The real question, then, is whether wokeness in America today qualifies as a religion under Title VII. If it does, Ms. Carano has a straightforward claim of religious discrimination—she was fired for refusing to follow an employer-mandated religion.
Surprising as it may seem, the answer to that legal question is almost certainly yes. The Supreme Court's definition of religion used to require a belief in God, but the Court abandoned that position 60 years ago in Torcaso v. Watkins. Today, the Equal Employment Opportunity Commission (EEOC)—which administers Title VII—employs a much more expansive definition: "A belief is 'religious' for Title VII purposes if it is...a 'sincere and meaningful' belief that 'occupies a place in the life of its possessor parallel to that filled by...God.'" "Religious beliefs include . . . non-theistic 'moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.'"
Most secular beliefs don't qualify because they are only, as the Third Circuit explained in 2017 in Fallon v. Mercy Catholic Medical Center, an "isolated moral teaching"—like objections to the flu vaccine—rather than a "comprehensive system of beliefs about fundamental or ultimate matters," including ones that give adherents a sense of purpose or a moral code.
Employing these definitions—which fit wokeness to a tee—courts have repeatedly found non-theistic belief systems to be religious. For example, in Peterson v. Wilmur Communications, the court held that "Creativity," a non-theistic worldview that adheres to white supremacy as its main axiom, counted as a religion. According to the court, Creativity teaches that its adherents should "live their lives according to the principle that what is good for white people is the ultimate good and what is bad for white people is the ultimate sin." If Creativity, professing white supremacy, is a religion, then wokeness, professing the opposite, must be too.
Or consider "Onionhead." In 2007, a company called CCG adopted a program known as "Harnessing Happiness" or "Onionhead" to boost morale and cooperation. Onionhead is a nontheistic positive-thinking belief system. CCG employees had to attend positivity sessions where they were taught, among other things, that "choice, not chance, determines human destiny," just as employees at woke corporations today are forced to attend "diversity and inclusion" sessions where they are taught that systemic oppression determines human destiny. Employees at CCG who rejected Onionhead beliefs were fired, and the EEOC successfully sued on their behalf under Title VII, claiming this was religious discrimination even though CCG insisted Onionhead was secular. In the 2016 case EEOC v. United Health Programs, the court agreed with the EEOC, finding that Onionhead was indeed a religion.
Creativity and Onionhead aren't legal one-offs. The Supreme Court has called even Secular Humanism a religion for legal purposes. "If there is any doubt about whether a particular set of beliefs constitutes a religion," stated a federal district judge in United States v. Meyers, "the Court will err on the side of freedom and find that the beliefs are a religion." If Secular Humanism is a religion, surely wokeism is too.
This doctrine protects woke employees from being fired for their woke beliefs. That's intuitive, but legally it also means woke employers can't fire employees for failing to adopt those same beliefs. Yet that's the essence of what's happening across corporate America today.
Further strengthening the legal case that wokeness is a religion is the uncomfortable fact that, well, wokeness really is a religion. As Joshua Williams argues, Americans "have not lost their religion" but "relocated their religion to the realm of politics." Like most religions, wokeism is comprehensive and indivisible; just as no good Christian can pick his or her favorite five commandments, no woke practitioner can pick and choose which parts of the LGBTQ or BIPOC acronyms to like or dislike. Wokeism doesn't give suggestions; it gives affirmative commands. You can't just be "not racist," but must be "anti-racist."
And like any good religion, wokeness has its catechisms, clothing guidelines (no cultural appropriation) and taboo words. Mr. Cafferty's sin was the accidental use of a prohibited hand gesture. Mr. McNeil's was that he vocalized an unspeakable word, akin to blasphemy.
Ritualized confession and excommunication are hallmarks of religion, and wokeness has cornered the market in both. Mr. McNeil learned as much when he was obliged to recite a repentant shibboleth for his sin before being banished from his institution. For the truly faithful, the greatest sin is not nonbelief, but apostasy. That's why J.K. Rowling was excommunicated with a special vengeance reserved for traitors. When she said that Dumbledore was gay, she became an LGBTQ ally and was baptized to great celebration. But when she said transgender women aren't women, she became an apostate—a sin even greater than being a deplorable.
Indeed the word "woke" itself forges an explicit connection to past American "great awakenings"—periods of renewed religious fundamentalism. With its new versions of blasphemy and heresy, its new doctrine of original sin (exemplified by the 1619 Project), its claims to ultimate truth and its mandatory catechisms of professed belief, wokeness has become America's newest creed—more religious in character than Creativity, Onionhead or Secular Humanism.
Ms. Carano and others like her weren't just fired for having the wrong politics. They were fired for refusing to bow at the woke altar. The law gives them recourse, just as it would if they were fired for refusing to bow before a cross.
Americans shouldn't have to choose between speaking their minds freely and putting food on the table. Today's creedal firings are not just ill-advised. They are illegal. Our Founding Fathers and civil rights activists gave us the legal toolkit we need to defend against dogmatic orthodoxies seizing control of our institutions. Aggrieved plaintiffs should take their cases to court now—not just to save themselves, but to protect fellow Americans who will soon face the same fundamentalism.
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