Hostile environments and the religious employee

[Eugene Volokh]

    I'm delighted that Prof. DiPippa has joined us on this list to
talk about the thoughtprovoking article he wrote with Prof. Beiner.
The article makes many interesting points about the law of
"religiously hostile environment harassment"; those on the list
doubtless know my views about this already, so I won't dwell on them
again here, and in fact Profs. Beiner and DiPippa would probably
reach results quite similar to those I'd reach on this score.

    Rather, I was hoping to focus on a more unusual claim, which I
believe hadn't been discussed at length in print before this article
came out:  The claim by a religious employee that (1) his religious
convictions prohibit him from working around certain kinds of
coworker speech -- whether pornographic, profane, blasphemous, or
otherwise -- and therefore (2) his employer should accommodate him by
prohibiting such coworker speech.  This isn't a religious harassment
claim but rather a religious accommodation claim that proposes a
speech restriction as an accommodation.

    The article points to two cases.  In Lambert v. Condor
Manufacturing, 768 F. Supp. 600 (E.D. Mich. 1991), the plaintiff had
a religious objection to working around pictures of naked women that
were put up by his coworkers.  The court held that the employer had
to accommodate Lambert by ordering the coworkers to take down these
pictures, and the article agrees.

    In Juzwick v. Frank, 1994 U.S. Dist. LEXIS 19416 (W.D. Pa. 1994),
the plaintiff had a religious objection to working around music with
misogynistic, violent, and sexually explicit lyrics -- including
music by 2 Live Crew -- being played over the store sound system.
The court rejected Juzwick's claim because plaintiff failed to show
that anyone played the music with the intent to harass him.  The
article correctly point out that intent to harass is *not* part of a
religious accommodation claim, and that the court erred on this.
Moreover, the article argues that Juzwick should win in such a case,
even in the face of a First Amendment defense.

    I'd like to ask whether this could possibly be right.  Unless I'm
mistaken -- and I hope Prof. DiPippa corrects me if I am -- this
means that the government may order employers to suppress employee
speech whenever it "offends [a coworker's] religious beliefs," p.
627, at least if the speech happens repeatedly enough to be "severe"
or "pervasive."  (As I understand it, the article suggests that such
cases be dealt with under a harassment-type model, which requires
severity or pervasiveness, and not under a traditional accommodation
model, which does not.  I also assume that "offends" doesn't mean
just "expresses views offensive to people of a certain religion," but
rather "violates the religion's rules as to what its adherents should
not hear or see.")

    This of course isn't limited to pornography or even religious
bigotry (though of course even these forms of speech are generally
constitutionally protected).  It may include, I suppose,
nonpornographic sexually suggestive material (perhaps a Sports
Illustrated calendar as well as Playboys, or even a photo of a wife
or girlfriend).  According to the article, it may include
misogynistic, violent, or sexually explicit music.  It may include
material that some consider blasphemous, from Piss Christ to anything
else that in the viewer's eyes abuses religious symbols (Darwin
Fish? Madonna posters?).  I suppose some religious observers might
conclude that their religion bars them from even seeing graven
images, or requires them to take steps to try to get those images
removed whenever possible.  Others might say the same about the
Lord's name being taken in vain, not just in profanity but also in
casual speech.

    It seems to me that, under the First Amendment, the government
may not so restrict speech in private workplaces, even when religious
employees would like it to do so, and even if their religious beliefs
would -- for instance -- require them to quit if the speech isn't
restricted.  I'd love to hear the views of Profs. DiPippa, Beiner,
and others on this.

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