(fwd from J. DiPippa) Hostile Environments & Religious Employee

[Eugene Volokh]

     (Forwarded from Prof. John DiPippa, writing for Prof. Theresa
Beiner and himself.)

     Eugene Volokh suggested that we alert the religion law list to
a recent article we wrote on harassment of religious employees in
the workplace.  For those of you who are interested in reading the
article, you may find it at 19 UALR L. J. 577 (1997) (Don't be
fooled by the date. It just came out).

     The article tackles a little discussed subject:  harassment of
religious employees in the workplace.  In it, we examined and
discussed harassment cases under both Title VII and parallel state
laws involving religious employees.  What we found was that
religious employees are often treated less favorably than
nonreligious employees in the workplace.  We argued for a true
application of the totality of the circumstances test that the
courts have adopted for other types of harassment under Title VII
to place religion on an equal footing with other protected statuses
and to assure that the rights of religious employees are protected
fully.

     As you all no doubt know, Title VII protects employees from
discrimination based on race, sex, religion, national origin and
color.  Religion, however, is also protected under the United
States Constitution's free exercise and establishment clauses.
Yet, claims of religious harassment based on a hostile work
environment appear easier to prove when an employee is seeking to
enforce Title VII against an employer or co-worker motivated by
religious beliefs than when a religious employee seeks to invoke
the Act's protection against a secular nonreligious employer.
Given the specific protection of religion under the free exercise
clause and in Title VII itself, this result is
curious.

     A more likely possibility is the courts' preference for
religious claims by nonreligious employees over those of religious
employees.  By nonreligious employees, we mean those employees who
are motivated not by the religious tenets or beliefs of an
organized religion or belief system akin to an organized religion,
but instead are motivated by their lack of an organized religious
belief or reaction to the beliefs of those identified with such a
religion.  The courts' preference for the claims of the
nonreligious appears in part motivated by the lack of credibility
they accord the beliefs of the religious, especially those involved
in non-mainstream religions.  Indeed, the Court in one of the cases
we discuss, Wilson v. U.S. West Communications, did not believe the
plaintiff s religious beliefs mandated her acting as a "living
witness" and therefore required her to wear an anti-abortion button
in the workplace that caused some disruption.

     In the article, we discuss hostile environment law and the
different approaches the courts have taken to the claims of
religious employees versus those of nonreligious employees.
Specifically, we describe and assess three types of fact patterns.
First, we discuss situations involving employees who request
accommodation in the context of alleged harassment by a religious
employee.  This would encompass cases exemplified by that of
Christine Wilson -- those involving religious employees who create
a commotion at work, harassing co-workers, and are subjected to an
adverse employment action because of it.  Second, we discuss
straightforward religiously hostile environment cases involving
religious epithets and related actions directed at religious
employees.  We also describe and develop a way to adequately
address the "pure" hostile environment case -- those involving
environments that are not outwardly hostile to religion, but are
hostile to a particular employee due to that employee's religious
beliefs.  Finally, we address the first amendment implications of
these various approaches.

     Our intent was to develop a way to adequately address in a
coherent manner the particular problems associated with hostile
environments and religious employees.  Remedial orders in most
cases should not raise significant first amendment problems (e.g,
prohibiting religious slurs).  We argue that remedial orders in
more difficult situations, like banning the display of pornography
in the workplace, are justified because (1) remedying a religious
objection is viewpoint neutral; (2) continued display of
pornography is the equivalent of a direct insult; and (3) religion
possesses a constitutional pedigree and has a relation to self-
identity and self-expression.  Reprints are available for those of
you who are interested in reading the article.

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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095