Hostile environments and the religious employee
Steven D. Jamar
sjamar at LAW.HOWARD.EDU
Thu Apr 23 14:52:18 PDT 1998
Speech in the workplace is a thorny problem. With the caveat that upon
further discussion and reflection I am ready willing and able to change and
withdraw my support for any statements made here, I will boldly and
foolishly made some comments:
1. Normal businesses are not states and so are not regulated by
constitutional free speech protections.
2. No anti-discrimination law *directly* proscribes free speech.
3. Employers have an interest in creating and maintaining a productive
work environment and so can have rules which are more restrictive than the
law requires with respect to hostile work environment and harassment in the
4. Employers can regulate conduct and speech of employees in the
workplace, in general. For example, an employer could probably lawfully
(and certainly constitutionally) ban all religious speech at work on the
work premises during working hours.
5. Employers can speak about many things so long as those things do not
create the hostile work environment or do not constitute harassment. Thus
employers can post the 10 commandments or "om mani padme hum" or "hari
Krishna" or "bismillah Allah" or "honor gaia" without incurring liability.
In such cases it is the employer creating the work environment the employer
wants and thinks best.
6. We ought not allow the unit veto, or the purely subjective approach to
hostile environment or harassment claims based on speech. Subjective may
work well for other types of status-based discrimination, but when dealing
with speech, it may not be proper. But I don't think we should draw the
line at specific intent, but I'm not sure of this. Need to think it
through some more. But it seems that speech that is not intended to
offend, but which the speaker knows will offend and which a reasonable
person would know would offend may be an acceptable or workable standard.
But then we also come to the mental state of the worker - highly sensitive
antenna? Or do we take a "jostling by the crowd" standard? Or do we
require here a reasonable person would be offended? Or a reasonable person
of that religious belief would be offended? This standard, the measuring
stick, I find to be a very thorny thicket indeed.
7. But, what of co-employee action that an employer permits? Let's say
that an employer permits employees to play Christian radio stations, or to
post "Jesus saves" signs, and the like even though the employer knows that
many employees are Jews, athiests, Muslims, etc. It seems here that the
same standard for the employer liability should apply as if the employer
were speaking. But, if the messages are causing disruption, the employer
should be free to stop the radio and posting of signs etcetera as a matter
of discretion, not as a matter of legal compulsion. And the employer need
not accommodate the employee's need to witness at work. At some point a
distinction between private acts and private displays for oneself alone and
displays and actions which affect others becomes meaningful.
8. I'll be interested in your article, Gene.
9. The rules change when it is a governmental employer, don't they? Seems
to present a tougher set of issues to me.
Steven D. Jamar
President, Legal Writing Institute
Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC 20008
vox: 202-806-8017 fax: 202-806-8428
email: sjamar at law.howard.edu
The more you know, the more you know you don't know.
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