May supermarket be held liable for displaying Halloween witch display

[Volokh, Eugene]

http://www.ocweekly.com/content/printVersion/649282 reports about a Wiccan's complaint, filed with the California Department of Fair Employment and Housing, claiming that the supermarket's Halloween witch display created a hostile environment for him, and demanding that the supermarket stop such displays.  Here's an excerpt, with a quote from a labor law scholar.  Any thoughts?  (Let's set aside the part of the claim that focuses on the alleged personal insults by coworkers, and on the claimant's apparent desire not to be involved in putting up the displays - which might be a matter of religious accommodation law more than hostile environment law - and focus on Shiff's objection to the witch display itself.)

And what he wants from Ralphs, he says, is simple: change. He wants the Department of Fair Employment and Housing to use its power to compel the company to change its policies.

"I'd like to have them understand not just my religion, but also other minority religions," Shiff says. "Realize we exist. Realize that even though they are the mainstream by an overwhelming majority, theirs is not the only religion, that there are other religions and that they need to respect them."

Earlier this month, Shiff spoke again with representatives from the Department of Fair Employment and Housing. He says they told him Ralphs was looking to negotiate a settlement on the issue of past harassment from co-workers. But on the issue of the witch display, the agents told Shiff, there was nothing that could be done. The department can't interfere with a corporation's "marketing." They might have been able to do something about a display like that if it had depicted Jewish or black stereotypes, Shiff says he was told. But the case law simply isn't there for witches.

Catherine Fisk, a professor at UC Irvine's school of law who teaches classes on harassment and discrimination law, doesn't see it that way. From the way it sounds, she says, Shiff just might have a case. "In the ordinary harassment scenario, if you intend to force the employee to engage in conduct, even if you don't know that it's humiliating to them because of their status or their religion, there's liability," she says. "The employer who says, 'Sure, I make young women dress up in wet T-shirts; I didn't think that it bothered them' doesn't have a defense. So if you analyze the case that way, it seems clear that he has a claim."

Shiff told the department's agents he didn't want to settle with Ralphs if the witch decoration wasn't going to be formally addressed. He admits, though, that some of his concerns have already been alleviated. At least one employee he said had been harassing him has been transferred to another store. While he appreciated that the witch display wasn't as prominent this past Halloween, he says, for Ralphs to publicly denounce the witch depiction to which he objects would mean a lot.
Thanks,

Eugene

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