Madison, Wisconsin just passed an ordinance extending defense against religious discrimination to the non-religious. What does that mean for atheists around the country? Based on how courts have treated the issue, it’s hard to say.
The capital of Wisconsin’s decision to defend the nonreligious comes just weeks after Indiana and Arkansas enacted bills to protect religious freedoms, landing both states’ representatives in hot water. The law, which is the first of its kind, protects atheists from discrimination in the areas of employment, housing, and public accommodations. But it’s far from the final say on how atheists are protected.
The topic Atheism has been on the legal rise in recent years. As Christina Stoneburner noted in a post for the Employment Discrimination Report, it’s increasingly being recognized as a valid position:
What if an atheist complained about hearing [“bless you”] every day? What if when the receptionist was confronted with the complaint, the receptionist said that the employer should accommodate her religious beliefs and allow her to keep saying the phrase? Whose religious beliefs trump in this case?
If your first response was “atheism is not a religion,” ah, not so says the Federal Government. The Government, as reported by Forbes, recently took the position that atheists would qualify for a religious tax break.
As the AP reports, the statute didn’t spring from any sort of reaction to complaint, but rather an attempt to set precedent for down the road:
In what is believed to be the first statute of its kind in the United States, Madison banned discrimination against the non-religious on 1 April , giving them the same protections afforded to people based on their race, sexual orientation and religion, among other reasons.
It’s hardly surprising that such a statute would originate in Madison, an island of liberalism in a conservative-leaning state and the home of the Freedom from Religion Foundation. But the ordinance’s author, Anita Weier, said it didn’t arise from an actual complaint about alleged discrimination based on a lack of religious faith.
“It just seems to me that religion has spread into government more than I feel comfortable with,” said Weier, who left the council after the statute passed. “It just occurred to me that religion was protected, so non-religion should be, too.”
…Patrick Elliott, a Freedom From Religion Foundation attorney, said the city that’s also home to the University of Wisconsin has recently seen an increase in religiously owned rental housing. While it had not yet created a conflict, the foundation wants to be sure there can be no discrimination, he said.
“Whether someone could have brought a case, we don’t know,” Elliott said. “It seemed that way, but we didn’t have any precedent to support that.”
But just because there’s no problems in Madison doesn’t mean atheists haven’t faced issues elsewhere. Six states in the U.S. still have laws on the books that prevent non-theistic people from holding office, while only 45 percent of the U.S. respondents in one survey said they felt comfortable voting for a qualified, atheist candidate.
But so far, the courts have been not favorable to atheists’ point of view. In New York last year atheists lost a battle over prayers at public meetings, and just last month a California court ruled against a “sun-worshipping atheist” who sued over religious discrimination when his beliefs (eight hours of sleep and worship time in the sun) clashed with his employer’s requirements (overtime shifts). Emily Grannis and Daniel Pasternak write on the decision:
All joking aside, it would be incorrect to read too much into the court’s decision here. It certainly does not mean that only traditional religions are protected under anti-discrimination laws. It does, however, make clear that simply believing strongly in something does not make it a religion. Religious creeds, according to the court, try to comprehensively answer questions of life, death, and human existence. Sun Worshipping Atheism, by contrast, appeared to the court to be a compilation of scientific suggestions for healthy living – and, of course, avoiding mandatory overtime.
For now, there’s little agreement on what proper treatment of atheists looks like. But as employment lawyer Donna Ballman writes on her blog, Madison’s new statute could at least give employers a hint:
Whether you like them or not, it’s illegal for employers to discriminate against atheists. Further, if an atheist asks for a religious accommodation like being excused from a religious invocation at the beginning of staff meetings, the employer must grant the accommodation.
If a believer of any religion proselytizes to an atheist employee and the atheist asks them to stop, continued proselytizing could be illegal religious harassment. If an atheist employer goes to HR and reports this kind of harassment, HR needs to treat it the same as any other kind of religious harassment and nip it in the bud.
The reason I think this ordinance is a positive step is that many employers don’t realize atheists are legally protected. I hear, “That’s not a religion,” all too often. At least in Madison, it will be clear to employers that they can’t discriminate against those with no religion.
It’s an interesting—albeit, bizarre—development. In the battles in Indiana, Arkansas and elsewhere, we hear frequently about the so-called “war on religion.” Though it seems paradoxical, Wisconsin is making it clear: even the total absence of religion counts as one, and businesses and employers better respect that fact.