Constitutionally permissible for the government to ban "tak[ing] the Lord God's name in vain ... in the workplace"?

[Volokh, Eugene]

Any thoughts on this column,
http://www.law.com/jsp/dc/PubArticleFriendlyDC.jsp?id=1207065967922,
which suggests that hostile environment harassment law already prohibits
such speech?  (Compare the views of Doug Laycock, which are that such
speech is not actionable harassment, but that there would be no First
Amendment problem with restricting such speech.  Testimony of Douglas
Laycock Before the Subcommittee on Courts and Administrative Practice of
the Committee on the Judiciary of the U.S. Senate, 103rd Cong. 22-99
(1994) (stating
that when "[a] nonreligious supervisor often uses the expressions 'Jesus
Christ!' and 'God d--' [expurgation in original] when angry or
frustrated," this is probably not religious harassment under existing
law, but "the First Amendment [does not stand] in the way if the
Commission
chooses to call it religious harassment").)

Eugene



Excerpts below: ...

I recognize that many people use such terms without deliberately meaning
to cause offense. Yet, as is often the case, words can still offend
regardless of the intent....

[F]or both legal purposes and an employer's respect for diversity, there
is a big difference between having a drink in front of your Baptist
co-worker and using the name of her God as an expletive.

The first merely evidences a difference in value systems, whereas the
second is a direct tarnishing of a fellow employee's God. And such
tarnishment can be very serious to co-workers: For those who believe in
God, that belief can define who they are, sometimes even more so than
race or gender....

When considering purely verbal harassment, the Supreme Court has noted
that "isolated incidents" do not rise to the level of severe or
pervasive. Nevertheless, epithets, racial or sexual slurs, and offensive
written material can all be elements of a harassment claim.

As the U.S. Equal Employment Opportunity Commission explains, harassing
conduct can be unlawful if it creates a work environment that is
"intimidating, hostile, or offensive to reasonable people." "Offensive
conduct may include, but is not limited to, offensive jokes, slurs,
epithets or name calling" and "ridicule or mockery, insults or
put-downs, offensive objects or pictures." ...

Given the breadth of [some past harassment law] findings, can there be
much doubt that the repeated use of God's name as an expletive in the
workplace could be found to constitute harassment under existing law?

If being forced to listen to racial slurs, epithets, or jokes creates an
intimidating, hostile, or offensive workplace environment, wouldn't an
observant Jew or Christian feel the same way if forced to listen to the
name of their God used continually as an obscenity?

Indeed, if a jury can decide whether calling a religious cleric a
"toilet seat" is harassment, how much worse would it have been to have
used that cleric's name as an expletive?

Worse yet, what if the expletive was the name of the God the cleric
served? Put even more graphically, if an employee used the phrase
"Martin f-ing Luther King" would anyone seriously question that the use
of the phrase was strong evidence of racial harassment? If the use of a
man's name in that manner is harassment, then how much more so would be
the use of the name of God?

There are some, of course, who may believe that existing workplace
protections against harassment already go too far in restricting speech.
Yet Title VII is what it is, and regardless of one's personal views
about its proper scope, its protections, and the workplace policies that
spring from it, it should be applied uniformly to protect religion as
well as race and gender.

Others may resist changing longtime habits of speech. But if the last
few decades have taught us anything, it is that persistent uses of
offensive language can be dramatically reduced, even if not eliminated
altogether.

It is time for the EEOC, the employers, and the courts to finish the
work that Moses left undone when he came down from Mount Sinai those
many thousands of years ago. Thou shalt not take the Lord God's name in
vain ... in the workplace.

Randy Shaheen is counsel with Arnold & Porter in Washington, D.C. The
views expressed are his own.