Hostile environments and the religious employee -Reply

[Michael McConnell]

Marty Lederman writes:

>  The statute makes it an unlawful employment practice
> for an employer "to *discriminate* against any individual with respect to his
> compensation, terms, conditions, or privileges of employment, *because of such
> individual's race, color, religion, sex, or national origin.*"  As the Court
> reiterated just this term, in the workplace harassment context, this is a
> disparate treatment prohibition that punishes, not *any* intimidation,
> ridicule and insult, but "`*discriminatory* intimidation, ridicule, and insult
> that is sufficiently severe or pervasive to alter the conditions of the
> victim's employment and create an abusive working environment.'"  Oncale, 118
> S. Ct. at 1001 (quoting Harris).
>
> Accordingly, in, for instance, the religious harassment context about which
> Michael McConnell wonders, the question is not whether the employer's conduct
> (or speech) was religiously motivated, but whether the employer treated
> certain employees differently because of the employees' religion. The
> disparate treatment test is obviously met if the employer directs epithets to
> employees of a certain religion, and also if an employer attempts to
> proselytize only those employees who do not share her religious beliefs.

But to treat someone differently is not the same as to
"discriminate against" them. Why would we read the words of
Title VII to include proselytizing? To be sure, the subject
of the conversation is different, as a result of the
difference in religion. But where is the "discrimination
against" the co-worker? Why is this any different from any
other form of conversation in which one worker tries to
persuade another?

I can see that persistent proselytizing could be annoying,
just as it may be annoying for a co-worker to talk
persistently about his arthritis or his cute grandchildren.
And I can see that the state might be entitled to enforce a
content-neutral law entitling an unwilling listener to call
a halt to unwanted conversation (whatever the topic). But I
do not see why the government has the authority to punish
proselytizing (i.e., persuasive speech on the subject of
religion) when it makes no attempt to punish other forms of
unwelcome persuasive speech, such as political or sports.

-- Michael McConnell (U of Utah)