Hostile environments and comments around the plaintiff

[Eugene Volokh]

    If I recall correctly, Finnemore seemed to be a case where the
workers not only made lewd and sexually explicit comments *around*
the plaintiff.  Rather, it seemed that they specifically made the
comments to him and about his wife, in order to tease him, and either
because of his religion, because of his complaint, or both.

    Could I ask what you think should happen if this were really only
a case about people saying things *around* someone who is troubled by
them because "he is a religious man"?  Say that X's coworkers
routinely use the Lord's name in vain around X.  X tells them to
please stop, because he feels religiously compelled or religiously
motivated not to work where he has to listen to such behavior.  They
don't retaliate against X in any way, but they keep using the Lord's
name in vain.  They do this daily, so it's "pervasive," and he really
has no way of avoiding this, since everyone works within earshot of
each other.

    Should the government be able to order the employer to pay
damages to X because of this blasphemous speech?  Should a court be
able to issue an injunction against such blasphemous speech?

John DiPippa writes:

> We agree with Michael that at least the overt religious slurs make out a
> discrimination claim. Those are the easy cases, however. We explore the
> range of cases and conclude that courts are more likely to find religious
> discrimination in cases resembling the other examples Michael laid out.
> To clarify my comment about harassment "because of religion:" in the article
> we discuss a case in which an employee asked his co-workers to stop making
> lewd and sexually explicit comments around him because "he was a religious
> man." The workers refused to stop and, in fact, contined to make these
> comments and expanding to include references to the (fictitious) sexual
> activity of his wife. In our view, that is an example of harassment directed
> at an employee because of his religion. It changes a term and condition of
> employment.
> At the same time, the prayer examples Michael gave (co-workers who pray
> together or co-worker evangelization) should not be hostile environments
> (although courts are more likely to find that they are). Finally, firing a
> worker because of a conflict of religious beliefs is not a hostile
> environment claim. Nevertheless, I disagree with Michaeal and believe that
> is a classic religious discrimination claim.


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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095