Hostile environments

[A.E. Brownstein]

        I think the issue of motivation comes into play in workplace harassment
cases in two distinct ways. It is relevant to determining whether or not
harassment occurs because an intent to annoy or harass is a useful,
although not necessarily dispositive factor, in distinguishing between
hasassing and non-harassing expressive activities. And it is relevant to
determining whether any harassment that does occur is actionable under
title vii or any other civil rights statute that may be applicable. The
motivation of religious harassment in the latter context should refer to
the victim's religion being the basis of the harassing behavior.

        With regard to Michael's examples (see below), neither 1 or 2 is harassing
conduct under my understanding of harassment. My analysis might change if
we altered #2 to read, "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 ... And the
co-worker doesn't like it," and added the following conditions:

         (1) The worker persisted in doing so again and again dispite the
co-worker's repeated requests that he or she be left alone, or (2) the
worker did so less frequently, but still on several occasions, and
pointedly demeans the non-Christian's faith.

        #3 involves direct employment discrimination, not harassment. Would it be
actionable if the employee who was fired because she had an abortion did so
because it was necessary to terminate the pregnancy in order to save her
life and the employee's religion requires that this step be taken in such a
circumstance. Is it religious discrimination to fire someone who is
religiously opposed to abortion if you would fire secular opponents of
abortion as well? What if the overwhelming majority of the people who hold
a certain belief or engage in a particular practice do so for religious
reasons? (Forgive my ignorance of employment discrimination law if everyone
else knows the answer to this except me.)

                                                                                        Alan Brownstein
                                                                                        UC Davis

Michael wrote:

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
it.

(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)