Hostile environments and the religious employee -Reply
michael.mcconnell at LAW.UTAH.EDU
Fri Apr 24 15:43:16 PDT 1998
I am still trying to work through this issue of
motivation. John DiPippa writes:
> 2. Motive plays a role in our analysis because it is only if the harassing
> conduct is directed at the employee because of religion that a title vii
> claim can be made out.
Could this be clarified? I don't know what "because of
religion" means. A few possibilities:
(1) Several co-workers pray together in the office "because
of religion." Another worker finds this objectionable and
asks them to stop. They don't.
(2) A worker, knowing that his co-worker is a
non-Christian, and believing that the greatest act of
kindness one can show to a fellow human being is to share
the gospel, does so, in a gentle and seemingly inoffensive
way. ("Because of religion.") The co-worker doesn't like
(3) A Catholic employer thinks abortions are reprehensible,
and fires an employee who gets an abortion ("because of his
religious view"). I am assuming that this is a jurisdiction
in which employers are free to discriminate on the basis of
conduct the employers deems immoral, but not to
discriminate on the Title VII grounds.
(4) A worker hates Jews. He therefore makes ugly and
bigoted comments, hoping to drive his Jewish co-worker out
of the workforce ("because of religion").
In my (extremely tentative) opinion, only the fourth should
be treated as harassment. The motivation in question (or
is it intent??) should be to create a hostile workplace
environment for persons of a protected characteristic. That
speech or conduct is undertaken "because of religion" does
not seem enough to me. To speak or act "because of
religion" is a highly protected right.
-- Michael McConnell (U of Utah)
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