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excerpted from:  Lawrence D. Rosenthal, Title VII's Unintended Beneficiaries: How Some White Supremacist Groups Will Be Able to Use Title VII to Gain Protection from Discrimination in the Workplace, 84 Temple Law Review 443 (Winter 2012)(299 Footnotes Omitted)


Although employment discrimination based on religion was not the primary impetus behind the passage of the Civil Rights Act of 1964, Title VII of that legislation does, in fact, prohibit employers from discriminating against employees, former employees, and prospective employees based on their religion. Statistics from the Equal Employment Opportunity Commission (EEOC) demonstrate that of the five protected classifications within Title VII, claims of religious discrimination in the workplace lag behind claims of discrimination based on race, color, sex, and national origin; but the statistics also show that these religion-based claims have been rising over the past several years.

Although many of these religious discrimination claims involve traditional religions such as the various denominations of Christianity and Judaism and other mainstream religions, there have been some instances in which individuals who practice nontraditional religions have also sought Title VII protection. The federal courts typically have adopted a somewhat broad interpretation of what constitutes a religion covered by Title VII, yet courts have not afforded Title VII protection to everyone who has claimed that his or her beliefs were religious in nature.

One set of beliefs with which courts and the EEOC have had to wrestle when determining the contours of Title VII's prohibition against religion-based discrimination involves white supremacy. On several occasions, courts and the EEOC have had to determine whether an individual's membership in a white supremacist organization entitles him to Title VII's protection against religion-based discrimination. Although early court opinions (along with an opinion from the EEOC) ruled against granting Title VII protection to these individuals, members of these groups have become more creative and have achieved at least some success in gaining Title VII protection against religion-based discrimination in the workplace. In fact, at least one white supremacist group, the Creativity Movement, now proclaims on its website that it is a religion and that its members are now protected by federal laws that prohibit discrimination. As a result of creative use of Supreme Court precedent (and the EEOC regulations that rely on such precedent), and with the clever structuring of their white supremacist organizations, members of these groups have gained, and can continue to gain, protection from a statute that, ironically, these individuals' intolerant attitudes at least partially caused to be enacted.

This Article will first analyze Title VII and its prohibition against religion-based discrimination in the workplace; included in this Part is a discussion of the various theories of actionable religion-based discrimination. These theories of discrimination include the disparate treatment / failure-to-promote theory, the hostile environment theory, and the failure-to-accommodate theory.

The Article will then briefly address the prevalence of religion-based workplace discrimination based on EEOC statistics. The Article will then discuss how the Supreme Court and other federal courts have defined religion for purposes of Title VII, and how the EEOC has decided to adopt the Supreme Court's rather expansive definition.

Next, the Article will analyze several cases involving white supremacist groups (primarily the Ku Klux Klan, its various factions, and the Creativity Movement) and how the courts determined whether the beliefs such groups espouse constitute religious beliefs entitled to Title VII protection.

Finally, this Article will argue that by changing the nature and structure of these groups while staying true to their underlying beliefs of white supremacy, members of white supremacist groups can benefit from Title VII protection, despite the fact that the purpose behind Title VII was certainly not to protect these individuals, and despite the fact that most individuals would find such protection unwanted.

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