Thomas C. Berg
tcberg at SAMFORD.EDU
Thu Aug 13 16:54:26 PDT 1998
On Tue, 11 Aug 1998 20:06:49 EST Jim Maule
<MAULE.Prof.Law at LAW.VILL.EDU> wrote:
> What of the following statements on paychecks or in newsletters?
> "Jews burn in hell because they do not accept our Savior"
> "Practicing homosexuals are children of the devil because they
> violate God's Law" [followed by a Bible verse]
> "Only evil people would deny blood transfusions to their children"
> "Wiccans preach the devil's message."
> I suggest these go over the line. They have a chilling effect. Most
> people who are within the scope of the statement would not want to
> work for the employer. They would feel compelled to look elsewhere.
> And there might not be an elsewhere.
Well, I said "except in unusual cases," and I think the
kind of aggressively negative employer speech Jim brings up
would be quite unusual compared to the number of empoyers
who just want to put up a scripture verse or a positive
statement of faith. Employers, even religious ones, have
plenty of reasons not to inject conflict into their
workplaces. The legal rubric for such aggressively
negative statements would be whether they are severe and
pervasive enough to create a hostile working environment
for the objecting employee. An employer's (or
supervisor's) statements can do that much more easily or
quickly than a co-employee's. And if the gay or Wiccan
employee is fired or demoted and brings a lawsuit, the
employer's aggressively negative statements could be used
as evidence of her discriminatory motive.
That is a far cry from the simple Bible verse on the
paycheck, which was held in the Brown Transport case in
Pennsylvania to constitute religious harassment.
Some of what Jim says below is dealt with in my response to
Alan. I think that prohibitions on religious speech in the
workplace impose very serious restrictions on the religious
employer or employee in terms of practical effect on their
daily lives. There are appropriate limitations on such
speech, to protect the interests of others, but we should
not treat the workplace as a generally inappropriate place
for religious speech.
I very much support the notion of a person's right to express their
> religious beliefs; I wrote a book describing a segment of the history
> of its development. But I think that like any speech or expression,
> it has its proper place. The balancing is a matter of respecting THE
> OTHER PERSON'S right to the same rights, including the right of
> religious expression.
> There is a difference between speaking or writing to a general,
> voluntary audience and a captive audience.
> There is a difference between expressing beliefs while in one's own
> house of worship and going into another denomination's building
> during a service and doing the same.
> An employer's expression of religious belief, when not relevant
> to the employment and that cannot be avoided, should not get the same
> protection as an expression that can be avoided. Hence, if the
> newsletter contains unimportant things, perhaps it can be tossed
> without being read. But a paycheck, well, that can't be tossed
> without a lot of financial pain. Suppose the potentially offended
> employee asks for direct deposit of pay and the employer refuses
> because the paycheck provides a medium for the message? Seems to me
> that demonstrates that the employer has moved from expression of
> belief to an attempt at proselytization. Perhaps that difference
> should be a factor in drawing the line.
> Jim Maule
> Professor of Law
> Villanova University School of Law
> Villanova, PA 19085
> maule at law.vill.edu
> (610) 519 - 7135
> "government big enough to give you everything you want is also big
> enough to take away from you everything you have"
> -- George Herbert Walker Bush
Thomas C. Berg, Cumberland Law School
Email: tcberg at samford.edu
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