Hostile environments and the religious employee

[Alan Gunn]

In message Thu, 23 Apr 1998 00:17:35 -0500,
  "Marie A. Failinger" <mfailing at PIPER.HAMLINE.EDU>  writes:

> Okay, how about this--what if the employer says to the speaker, hey, this
> is driving everyone crazy, and the speaker says, "tough!"  Is it equally
> problematical to:
> a)fire the employee for harassing the workers;
> b)fire the employee for manifesting disloyalty and insubordination to
> the employer, given that this exchange is likely to spill over into other
> aspects of their behavior;
> c)take the "speech" down every time the speaker puts it up;
> d)insist that the speaker go to counseling as a condition of further
> employment to deal with his aggressive behavior toward his co-workers;
> e)tell the speaker that he will get some less significant
> penalty--less vacation, no raise, no promotion--if he persists;
> f)move the speaker's desk into a remote area where nobody has to deal
> with him.
>
   Wow! Back in the days when one could sing the line "O'er the land of the
free . . . " with a straight face, none of this would have presented legal
problems. The employer would do whatever it thought best; employees would
look for jobs that, among other things, let them work in the kinds of
environments in which they wanted to work. Of course, people sometimes got
raw deals because of their religion and a lot of other things. People still
get raw deals, and now they get the fun and expense of litigating, too. Are
many people better off now that they live in a society which is choking on
laws--laws which are often useless in giving guidance in advance about what
will and what won't be actionable?
  It is one thing to interfere with freedom in order to redress widespread
and one-sided injustices like the race discrimination that was prevalent
before the Civil Rights Act of 1964; something quite different to blanket
the workplace and the educational system with statutes, regulations and
caselaw aimed at insuring that nobody will ever be treated unfairly. This
topic is becoming depressing. (And I'm a tax lawyer--complexity is my
life: it must be even worse for normal people.)

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Alan Gunn
Notre Dame Law School