Sunday, October 10, 2010

Third-party discrimination hypothetical question

I have been kicking this around in my head recently and in casual discussions with my husband re: the question of whether forbidding same-sex marriage is sex discrimination:

As many of you know, my husband is Jewish, but I am not. So here comes the hypothetical part: imagine that I apply for a job, for which I am qualified, and I am rejected. I learn later that it is because the employer is an anti-Semite. She refuses to hire Jews or individuals like me who are married to Jews. She is, however, willing to hire non-Jewish individuals who hold the same religious beliefs that I do. That is, if I were not married to a Jewish man, she would have hired me. Assume that this employer has enough employees, etc. to be covered under Title VII.

Under current law and doctrine, may I state a claim against her for discrimination on the basis of religion? What if the employer is a state actor -- may I state a claim under the Fourteenth Amendment? Are there any state laws that would reach this situation? As a normative matter, should anti-discrimination law reach this employer's conduct? Why or why not?

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