Thou Shalt Not Discuss Religion: The Rise of Religious Harassment
and the Decline of Freedom of Speech in the Workplace

Title VII Law Review
by David Myers, J.D. Copyright © 2002

Vanessa McCauley, a flight attendant with Southwest Airlines for 12 years, learned that her employment came to an abrupt end when she decided to read her Bible and profess her religious beliefs in the workplace. [FN1]

Mr. Turner, employed by the State of California Department of Education, asserted he was reprimanded for discussing religion with his co-workers and keeping religious pamphlets in his work cubicle. His employer issued an order to forbid him to discuss religion in the workplace. [FN2]

A clerk at a California medical clinic alleged he was fired from his job in 1993 after attempting to share his Christian convictions with co-workers. A Sacramento Superior Ct. determined in 1995 that the clinic had unlawfully discriminated against the clerk based on his religious beliefs and practices. It awarded him $6,305 in lost wages and $1 for pain and suffering. [FN3]

Religious discrimination and harassment is becoming more prominent as the number of claims in state and federal agencies continue to climb. In 1990 over 2,200 religious harassment claims were filed. That number increased to 2,900 claims in 1994, and continues to rise. [FN4]

With little guidance from the courts or the legislature, employers are finding themselves in the precarious position of trying to determine where religious free speech ends and religious harassment begins. [FN5] To make matters worse, the issue is further complicated by the fact that the employer and the employee have the right to exercise their religious beliefs, and that one or the other must give way completely to the other or both must give way partially through accommodation. [FN6]

Unlike the evolution of race and gender harassment, religious harassment is escalating at the expense of the First Amendment as employers err on the side of gag orders in the vacuum of uncertainty.

In The Beginning: The History of Title VII

The Civil Rights Act of 1964 is the foundation upon which the vast architecture of discrimination is erected. [FN7] Title VII of the act imposed a broad prohibition against discrimination if the workplace. Section 703(a), the heart of Title VII states that
(1)"It shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise 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; or (2) To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee; because of such individual's race, color, religion, sex, or national origin." [FN8]

As a firm response to the civil rights movement in the 1950's and the 1960's, Title VII was intended, first and foremost, to redress racial discrimination. [FN9] This preoccupation with racial discrimination inevitably resulted in an impoverished legislative history concerning other forms of discriminatory practice. [FN10]

The Legislative history of religious discrimination under Title VII is deeply ambiguous; causing the application to be inconsistent and establishing a precedent of treating religious discrimination as fundamentally indistinct from other forms of discrimination. [FN11]

The Equal Employment Opportunity Commission (EEOC) governs the enforcement of Title VII, and as early as 1966 it attempted to clarify an employer's duties with respect to religion. The commission adopted regulations requiring an employer to accommodate an employee's religious practices absent "a serious inconvenience to the conduct of business." [FN12]

The following year, the EEOC revised these guidelines to require the employer to accommodate employees' religious practices unless the employer could prove that such accommodation would create an "undue hardship on the conduct of the employer's business". [FN13] Unfortunately, the expressed words of the statute failed to offer much guidance as to what constituted reasonable accommodation or undue hardship.

Finally in 1972, Congress attempted to end the confusion by amending Title VII with section 701(j) to reach not only religious affiliation or status, but also beliefs and practices. [FN14] By defining "religion as an employer's burden", this provision placed upon employer's a statutory affirmative duty to reasonably accommodate employees' beliefs, but their duty was still limited in that such accommodation need not go so far as to impose an undue hardship on the employer's business. Now employers are not only required to provide a work environment free of harassment, but must take affirmative steps to prevent and eradicate such harassment. [FN15]

While section 701(j) was enacted to clarify the nature of the employer's duty under Title VII, it failed to provide any guidelines regarding the extent of the effort required of the employer. The lack of legislative history also added to the problem. [FN16] The net effect of this confusion caused employers and their attorneys to assume the risk and roll the dice. If and when they were taken to court, employers could prove their accommodation was reasonable and sound. [FN17] This Ex post facto style of employment practice caused a lack of preventative measures to be put in place to guard against religious harassment.

Let there be Light: The Courts Attempt to Define Religious Harassment

The courts begin to develop a body of precedent governing claims of religious harassment, weaving strands of other doctrines into the tapestry of religious discrimination. Initially the cases took the posture of constructive discharge claims, in which plaintiffs alleged that they were compelled to resign due to intolerable working conditions. [FN18]

In Young v. Southwestern Savings & Loan Association, the Fifth Circuit in an opinion by Judge Goldberg, held that an atheist employee who resigned her position after being required to attend Christian devotional meetings, had stated a claim of constructive discharge in violation of Title VII. [FN19] The court observed that "this is precisely the situation in which the doctrine of constructive discharge applies, a case in which an employee involuntarily resigns in order to escape intolerable and illegal employment requirements." [FN20]

A more explicit theory of religious harassment evolves in Compston v. Borden, Inc. [FN21] The district court found the employer, Borden Inc., liable under Title VII after one of its supervisors repeatedly subjected Compston to verbal abuse based on his Jewish faith, such as referring to Compston as "Jew Boy", "kike" and "Christ killer". [FN22] The court concluded that the defendant employer was strictly liable for the harassment perpetrated by its manager. "When a person vested with managerial responsibilities embarks upon a course of conduct calculated to demean an employee before his fellows because of the employee's professed religious views, such activity will necessarily have the effect of altering the conditions of his employment." [FN23]

In 1977, the United States Supreme Court decided to address the issue of how far must an employer go to accommodate an employee's religious beliefs, by hearing Trans World Airlines, Inc. v. Hardison. [FN24] In this case, TWA fired Hardison for unexcused absences after he refused to work his Saturday shift because his religion required that he refrain from performing any work from sunset on Friday to sunset on Saturday. [FN25] The work shifts of all TWA employees were governed by a seniority provision established in the collective bargaining agreement of the unionized employees, whereby the most senior employees would have first choice for job and shift requirements as they became available. [FN26] As a result of this agreement, Hardison was asked to work Saturdays because of his low seniority. After TWA made an unsuccessful effort to reassign Hardison to another job with hours that would not conflict with his religious observances, Hardison proposed either that his shift be exchanged with another employee or that he work only 4 days a week. [FN27] TWA declined and Hardison was eventually discharged.

The Supreme Court held that the seniority provision in the collective bargaining agreement represented a significant accommodation of employee practices, and that an employer would not be required to incur "more than a de minimis cost" when attempting to accommodate an employee." [FN28] Although the Supreme Court did provide a list of factors to be considered in determining whether the accommodation was reasonable, the opinion still failed to indicate the extent of accommodation that is required. [FN29]

By 1984, a well-defined scheme of religious harassment doctrine had begun to take shape. In Weiss v. United States, [FN30] the court held an employer liable for religious harassment grounded in egregious anti-Semitic abuse of a Jewish employee by a co-worker and a supervisor, and for the failure of the defendant employer to take remedial action. [FN31] In Weiss, for the first time, an explicit analytical structure was articulated for adjudication of religious harassment claims, drawing on the legacy of prior religious harassment decisions and precedents derived from other harassment contexts to articulate a mature, coherent theory of harassment liability. [FN32] The decision thus serves as a benchmark in the evolution of religious harassment law.

From the Weiss case, the court noted that religious harassment can arise in either of two forms: "condition of work" harassment, in which the challenged conduct creates "an intimidating, offensive environment", or "quid pro quo" harassment, in which a supervisor demands that an employee conform to a specified religious doctrine in order to secure job benefits. [FN33] The similarity between the "condition of work" doctrine of sexual harassment and the doctrine of "religious intimidation" in religious harassment begin to illustrate the symmetry and uniformity of harassment doctrine under Title VII.

In a formulation that explicitly unified the spectrum of harassment law under Title VII, the Weiss court concluded: "Continuous abusive language, whether racist, sexist, or religious in form, can often pollute a healthy working environment by making an employee feel uncomfortable or unwanted in his surroundings." [FN34] The court also stated that an employer should not be held liable for a hostile work environment claim unless the plaintiff shows that the employer had actual or constructive knowledge of the hostile working conditions. [FN35] Once an employer has notice of religious harassment in the workplace, the court held affirmative remedial action is required to avoid liability; the mere existence of a policy against harassment will not immunize the employer in the face of acquiescence or participation in the alleged harassment. [FN36]

Although Weiss was not decided by the United States Supreme Court, it served to mark a turning point in the evolution of religious harassment doctrine by articulating a formal architecture for adjudication of religious harassment claims, and simultaneously unifying harassment claims of sexual, race, and religion under the broad antidiscrimination principle of Title VII. [FN37] With this basic structure in place, the United States Supreme Court was called upon for its stamp of approval.

In 1993, the United States Supreme Court confirmed its commitment to the legitimacy of religious harassment and hostile work environment doctrine by deciding Harris v. Forklift Systems, Inc. [FN38] In Harris, the court reaffirmed a "pervasive or severe" standard as the threshold of liability for discriminatory harassment without requiring proof of psychological injury in work environment liability. [FN39] The court established that a determination of hostile work environment claims arising under Title VII can be made "only by looking at all the circumstances". [FN40]

In Harris, the Supreme Court applied the doctrine of Meritor Savings Bank v. Vinson, an earlier sexual harassment case, in which the fundamental question of whether a hostile or abusive work environment was a violation of Title VII was answered. The court established the "severe or pervasive" standard as the water line distinguishing between conduct which is merely incidental and that which rises to the level of a Title VII offense. [FN41] The decision of the Supreme Court in Harris is even more significant because it explicitly reaffirmed the uniformity of harassment law under Title VII. Thus, in Meritor and Harris, the Supreme Court placed its imprimatur upon two crucial tenets of religious harassment law: the legitimacy of religious harassment as a theory of liability under Title VII, and the interdependency of religious harassment law with other theories of harassment comprising the "hostile work environment" doctrine. [FN42]

After Meritor and Harris, the Law of Religious harassment was firmly grounded in the jurisprudence of Title VII. With the apparent harmony of sexual, racial and religious harassment being reconciled under the hostile work environment standard, and the evolution of a coherent, analytical architecture for the evaluation of harassment claims arising under Title VII, it was perhaps not surprising that the Equal Employment Opportunity Commission decided the time was ripe to issue uniform guidelines governing harassment doctrine. This would prove to be more difficult and more divisive than the drafters could have imagined. While the evolution of the law had harmonized the areas of harassment, the disharmony of the implementation was to create a hostile work environment of its own for the Commission.

And Darkness Covered The Earth: The EEOC Attempts to set Guidelines for Religious Harassment.

On October 1, 1993, the EEOC proposed guidelines relating to discrimination and harassment based on race, color, religion, gender, national origin, age or disability. [FN43] The EEOC published the proposed guidelines in the Federal Register without much fanfare and initially very little attention was given to it. These guidelines were promulgated after the EEOC determined that it would be useful to codify consolidated guidelines enumerating standards for harassment in the workplace. [FN44] Although the EEOC offered several justifications for this proposal, the underlying purpose was based on a concern that the nation's obsession with sexual harassment would obscure other prohibited forms of harassment, including religious harassment. Therefore, the guidelines were set forth to "reiterate and emphasize that harassment on any of the bases covered by the Federal antidiscrimination statutes is unlawful." [FN45]

Under the proposed guidelines, harassment constituted Verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his (or) her….religion and…..(h)as the purpose or effect of creating an intimidating, hostile, or offensive work environment;…unreasonably interfering with an individual's work performance; or….otherwise adversely affects an individual's employment opportunities. [FN46]

The guidelines provided that harassing conduct includes, but is not limited to, "(e)pithets, slurs, negative stereotyping, or threatening, intimidating, or hostile acts that relate to…….religion." [FN47] The EEOC also defined harassing conduct to include "(w)ritten or graphic material that denigrates or shows hostility or aversion toward an individual or group because of….religion…and that is placed on walls, bulletin boards, or elsewhere on the employer's premises, or circulated in the workplace." [FN48] Finally, the EEOC stated that it would review the "totality of the circumstances, including the nature of the conduct and the context in which it occurred." [FN49]

At first glance, the proposed EEOC guidelines appeared neither radical nor revolutionary, but merely appeared to tract the doctrine of hostile work environment harassment developed by the federal courts and endorsed by the Supreme Court. As the original comment period drew to a close and the Commission prepared to formally promulgate the new guidelines, it appeared to be business as usual. This lull before the storm ended when several labor attorneys from Atlanta came to the conclusion after studying the proposed guidelines, that the only way for employers to avoid liability for religious harassment was to mandate a "religion-free workplace." [FN50]

The idea of separation of church and state extending to the separation of church and work set off a firestorm that sparked the interest of the public and special interest groups as far ranging as the American Civil Liberties Union (ACLU) to the Moral Majority. Concerns begin to arise across the political spectrum that the religious harassment provisions might have the effect of "chilling" religious expression in the workplace, as liability-conscious employers sought to preempt religious harassment claims by prohibiting religious expression. [FN51] Acknowledging these valid concerns, the EEOC reopened the comment period, and this time an unprecedented 100,000 comments deluged the commission: the vast majority in opposition. [FN52]

The religious harassment debate reached its high-water mark on June 9, 1994, when a subcommittee of the Senate Committee on the Judiciary held hearings to consider the implications of the Guidelines on Harassment for religious expression in the workplace. [FN53] Witnesses representing groups as diverse as the ACLU, the Southern Baptist Convention, the American Jewish Congress, and the Traditional Values Coalition agreed that the vague language of the Guidelines threatened to chill religious expression. [FN54] Dudley Rochelle, the Atlanta attorney whose interpretation of the Guidelines had initiated the controversy, [FN55] concluded her prepared statement by asserting that "the Guidelines eliminate religious harassment in the workplace only by eliminating religion altogether. [FN56]

On June 16, 1994, the Senate overwhelmingly approved a resolution that called for the commission to withdraw the religious harrasment provisions from the proposed Guidelines. [FN57] Any future guidelines concerning religious harrasment, the Senate advised, "should be drafted so as to make explicitly clear that symbols or expressions of religious belief consistent with the First Amendment are not to be restricted and do not constitute proof of harassment." [FN58] In September 1994, the Commission voted to withdraw the Guidelines on Harassment entirely, rather than agree to the compulsory exemption of religion from the official EEOC interpretation of harassment law. [FN59] This strategy was intended to preserve the right of the Commission to reconsider the issue at a future date, in spite of the fact that the Commission is leery of ever considering the issue again. [FN60]

Instead of providing assurances of a hostile-free workplace for employees with religious convictions and clear guidelines for employers in drafting accommodation policies for religious expression in the workplace, the EEOC debacle has clouded the issue; causing further unrest. The workplace is adrift in uncertainty causing employers to refrain from incorporating religious harassment policies that are similar to race and gender harassment prohibition policies that are commonplace. In a vacuum of uncertainty, employers are fearful that a religious harassment policy intended to forbid discrimination could have the opposite effect of forbidding religious belief. Without policies in place, religious harassment continues to escalate as workers and worshippers take it on the chin in silence.

The Two Shall Become One: The Tension Between Title VII and the Free Exercise Clause of the First Amendment.

The attempt to formulate guidelines for Religious Harassment claims brought to light a struggle that had been simmering just below the surface of this evolving legal issue. A conflict between the Free Exercise clause of the First Amendment which guarantees every persons right to religious expression, and Title VII of the Civil Rights Act of 1964 which guarantees every persons right not to be harassed because of his or her religion. At first glance this would appear to be rights that support each other, but a closer looked proved to be just the opposite as some individuals religious beliefs encompass a lack of religious beliefs. Professor Douglas Laycock of the University of Texas School of Law best summarized the delicate balance between these interests in his testimony before the Senate Subcommittee:

"Claims of religious harassment present a conflict between every employer's right to religious expression and every employer's countervailing right not to be harassed because of his religion or lack thereof. Each of these countervailing rights is a form of religious liberty; each of these countervailing rights is part of the right not to be discriminated against in employment on the basis of religion. The Commission has made little effort to draw clear boundaries between these competing rights." [FN61]

If religious expression is multi-faceted, religious harassment is equally diverse and can be manifested in numerous ways. If an employer has an unfavorable opinion about Christians, he or she can create a hostile work environment by making derogatory comments or by allowing other employees to intimidate and harass a Christian employee. The harassment may also take place by the employer not providing advancement opportunity because an employee has devout religious views or even terminating the employment because it is not worth the headaches. Conversely, if the employer is deeply religious and pressures employees to subscribe to his or her belief by mandating employment on the compulsory attendance to prayer meetings, harassment is no less obvious. [FN62] Employees that have religious beliefs of witnessing or proselytizing can be the victim of religious harassment by gag orders from employment or from other employees hostile comments and actions. The same employee could face harassment charges for following his religious beliefs and speaking about his faith.

Religious Harassment defined by guidelines of the EEOC could have a "chilling" effect on freedom of speech and freedom of religion while at the same time attempting to protect such freedoms. Therein lies the tension between the antidiscrimination mandate of Title VII and the free exercise principle of the First Amendment. These two competing principles are of equal dignity in modern constitutional thought, and the religious harassment debate exposes our struggle to reconcile them to each other. While the evolution of Religious harassment law was based on the protection of freedom of religious expression, such protection can turn into prohibition thus eliminating the purpose for which it was created.

Previous debate on this question focused on sexually suggested speech, a value that at best is outside the core of the First Amendment. [FN63] This debate showed little conflict with the First Amendment because minimal constitutional value is given to sexually suggestive speech. Restrictions on religious expression, on the other hand, implicate the very core of the First Amendment, and thus raise much more significant concerns about the scope of Title VII harassment doctrine. [FN64] Backed up by the Free Exercise clause, freedom of speech in religious expression is not so easily swallowed up by doctrinal formalisms of Title VII harassment law. While the debate is unsettled, the lack of formal guidelines serve as fertile ground for religious harassment to grow and freedom of speech to wither.

In an effort to illustrate the hairline distinction between religious expression protected by the First Amendment and unlawful religious harassment prohibited by Title VII, Mr. Robert Peck of the American Civil Liberties Union suggested at the Senate hearings on June 9, 1994, "Affirmative expressions of one's own religious faith or lack thereof, not targeted at a particular individual," [FN65] are protected by the First Amendment, whereas "the intentional selection or targeting of an employee for unwanted severe or pervasive harassment" constitutes harassment prohibited by Title VII. [FN66] The difficulty with this distinction is that freedom of speech is not determined by the size of its audience and freedom of religious expression is not limited by the size of a congregation. Thus, the simultaneous protection of religious expression and religious sensitivity require the reconciling of Title VII with the First Amendment.

Religious harassment law originally included in Title VII to protect religious expression, and developed by the courts to ensure a non-hostile work environment, has evolved in the sea of uncertainty to focus more on the limiting of religious expression by protecting the sanctity of silence for the non-religious. This has not only caused religious harassment law to veer into the ditch of unconstitutional gag orders, but has in effect become exactly what it attempted to guard against: a vehicle for religious discrimination.

The evolution of this monster was faced in the 1993 Oregon case of Meltebeke v. Bureau of Labor & Industries. [FN67] Meltebeke, the owner of a painting business, was a Christian who shared his faith and belief with others on the job. [FN68] Meltebeke witnessed to a new employee, invited him to attend his church, and admonished him for his sinful ways. The complainant never indicated to Meltebeke that he felt offended, harassed, or intimidated by anything that Meltebeke said to him or to anyone else. [FN69] After Meltebeke fired the employee for poor work performance, the employee subsequently filed a claim with the Bureau of Labor & Industries (BOLI), which found Meltebeke liable for religious harassment. [FN70]

The Appellant court reversed finding that BOLI deprived the defendant of his right to free exercise of his religious beliefs and speech under the Oregon Constitution. [FN71] The court found that BOLI's holding was unconstitutional because it interfered with religious freedom by prohibiting "religious advances" and that Meltebeke's actions were not harassing because they were not motivated by animus. [FN72] Judge Edmonds held that there was "no generalized constitutional right to be free from religious expression in the workplace," [FN73] only a right to be free from discrimination based on an employee's religion. [FN74] While Judge Riggs dissented that the majority opinion gave inadequate protection to the constitutional rights of atheists, agnostics and the nonobservant, [FN75] the court was unwilling to define religious expression as the lack of religious beliefs.

The Meltebeke case focused the debate on whether Religious Harassment law was designed to protect the believer, the nonbeliever, or both. While most law will confirm that we are to protect both, how does an employer provide policy to protect the religious and the nonreligious when the expression of one is the harassment of the other. In an effort to balance the two, courts inevitable favor one side. While the teachings of many religious groups encourage its followers to turn the other cheek, the nonreligious consequently dominate the microphone of public opinion and the ear of the court. Linking themselves with the ancient religious martyrs, the believers hold their peace as religious harassment law develops to protect the nonbeliever and freedom of speech dissipates under the glare of anti-religious gag orders from liability conscious employers.

This evolution caused Title VII religious harassment law to developed contrary to the Free Exercise clause of the First Amendment and came to light in the guidelines proposed by the EEOC, thus explaining the unprecedented outcry of public opinion. While Title VII religious harassment law should complement and enforce First Amendment principles, it has become the antithesis of its namesake. The reconciling of these established doctrines must be accomplished for freedom of speech to be protected and for Title VII to be uniformly applied to race, gender, and religion. Otherwise both documents will lose their impact and be swallowed up in exceptions.

The Unholy Trinity: The Three Types of Religious Harassment.

In an attempt to get a handle on the developing areas of religious harassment law, the bulk of case law has divided this emerging doctrine into three categories: (1) anti-religious slurs or outright religious "bigotry", motivated primarily by animus toward certain religious beliefs or toward an individual's religious persuasion, [FN76]
(2) attempts by employers or supervisors to bring a religious element into the workplace in a potentially offensive manner, such as the institution of mandatory meetings incorporating Bible study or prayer sessions, and (3) aggressive proselytization on the part of co-workers or employers, seeking to "covert" the non-believers. [FN77]

A. Animus-Based Harassment

In Compston v. Borden, Inc., [FN78] the court first recognized religious harassment as an actionable federal claim. The Compston court held that the employer harassed the employee "by using numerous derogatory epithets and by engaging in a patterned course of conduct designed to make his working environment a miserable one." [FN79] Other cases involving animus-based harassment also rely on the notion of a hostile work environment. [FN80] Since religious harassment rarely will involve the "quid pro quo" form of harassment, [FN81] which is more commonly associated with sexual harassment, [FN82] it is essential that courts recognize hostile work environment claims. [FN83] The Supreme Court recognized the hostile work environment notion in the sexual harassment context in Meritor v. Vinson. [FN84] The Court found that banning such harassment was consistent with the intent of Title VII which "affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." [FN85]

Religious slurs as religious harassment are often called the "easy and noncontroversial cases". [FN86] They involve slurs and epithets such as calling Jews "kikes" or "Christ killers." While not addressed specifically, these scenarios include symbolic conduct such as painting a schwastika on a Jewish person's locker. I would include in this scenario conduct which, although not on its face anti-religious, nevertheless is hostile and aimed at individuals because of their religion. Examples of this could include equipment sabotage, the silent treatment or other shunning activities, and even physical abuse. [FN 87]

While animus-based harassment would seem to embody the spirit of religious harassment, this area has developed the slowest in the courts. Aside from the fact that religious employees receive less protection under Title VII than employees discriminated against due to other statuses, such as race or gender, [FN88] the religious employee receives less protection under developing religious harassment law than the nonreligious. One reason is that courts improperly inquire into whether the employees' conduct or lack of conduct is required by their religious beliefs rather than ask the very narrow question of whether employees sincerely believe their conduct is required by their religion. [FN89] If the employee is sincere in his or her belief, an accommodation should be attempted. To require subjective evidence to prove animus on the part of the offender, yet ignore the employee's subjective beliefs, is to place the burden on the religious employee and chill legitimate religious harassment claims.

A second reason is that employers are trying to secularize the workplace by taking action against religious employees even before coworkers complain. The employer's actions suggest that they have more to fear from a claim by a nonreligious employee than a claim by a religious employee because religious employees' claims are rarely successful. [FN90] The difficulty with animus-based harassment is not the obvious cases of religious bigotry that have incurred the wrath of the court, but the narrow path given the sincere religious believer has extended religious harassment from the workplace to the judicial process. If courts respected employees when determining whether their religious beliefs are sincerely held, and if courts engaged in a true totality of the circumstances analysis when determining whether hostile environments have been created, religious employees would be more likely to win antidiscrimination law suits. If this were to happen, employers would have less incentive to attempt elimination of all religious practice from the workplace out of fear of a law suit by a nonreligious employee. This would allow for balance in the workplace. Nonreligious practices would no longer trump religious practices, and the touchstone of all sides would be tolerance.

B. Passive Harassment

Mandatory religious activity in the workplace, such as required prayer meetings, have been defined by the courts as religious harassment on the nonbeliever or nonobserver. [FN91] In EEOC v. Townley Engineering & Manufacturing Co., [FN92] the court expanded this doctrine. Mr. and Mrs. Townley, the owners of defendant Towney, were born-again Christians who believed strongly in incorporating their religion into their business. [FN93] They instituted mandatory devotional services as part of their business meetings, which included prayer, singing, and scripture reading. [FN94]

Pelvas, an employee who described himself as an atheist, advised his supervisor of his objections to the meetings. [FN95] In response, the supervisor explained that the meetings were mandatory but that the plaintiff could sleep or read during the services. [FN96] The plaintiff eventually left the company, claiming constructive discharge. [FN97]

The court rejected Townley's claim that the application of Title VII violated the Townley's free exercise rights under the First Amendment. The court agreed that ending mandatory services would adversely affect the Townley's religious practices, since they believed their religious duty obligated them to spread the "Gospel" to all their employees. [FN98] The court found, however, that the Townley's rights were limited by the compelling governmental interest in eradicating discrimination, noting that "protecting an employee's right to be free from forced observance of the religion of his employer is at the heart of Title VII's prohibition against religious discrimination." [FN99] This case illustrates the evolution of the interpretation of Title VII's religious harassment law.

When an employer seeks to impose a non-business related religious activity on it's employees, the court is willing to afford greater protection for employees than in a situation where conflicts arise concerning employee's religious observances, such as accommodating Sabbath observance. [FN100] Notwithstanding the fact that atheists by definition believe there is no God, requiring them to attend prayer sessions in no way compromises "religious" beliefs: to them it is merely a waste of time, [FN101] the courts continued to develop religious harassment law to protect the nonbeliever at the expense of increasing religious harassment to the devout believer.

The Plaintiff's in both Young v. Southwestern Savings & Loan Ass'n [FN102] and Townley were both told by their supervisors that so long as they attended the meetings, they could occupy the time of the devotional portion in any way they wished. [FN103] Yet, the mandatory nature of such prayer sessions, even absent any requirement of attentiveness, clearly impacted the two decisions, animated as they were by a desire to prevent employers from foisting unwanted religious activity on employees. The court considered this objective important enough to override any First Amendment concerns, [FN104] and that aspect of the Young and Townley decisions alone is troubling. [FN105]

The inherant difficulty in resolving the tension between freedom to observe and freedom from observance is not solved by taking an absolute stand to protect employees from religious advances in the workplace. If the nonreligious must be protected from the expression of the religious than the religious must be protected from the expression of the nonreligious in the workplace. Some nonreligious behavior such as the display of Playboy, crude sexual humor, or pressure to attend company parties where unwholesome acts occur, attacks a religious employee's soul. [FN106]

What if it was religiously offensive for a man to shave his beard or anyone to eat on fasting day? What if wearing cologne or perfume, tattoos, or body piercing jewelry were considered religiously offensive? What if eating pork is a religious requirement of some and religiously offensive to others? Should there be a total ban on pork or should employers be required to provide separate break rooms for the pork eaters so those offended by the practice will not be confronted by it? The problem with the development of passive harrasment within the context of religious harrasment is that there are no limiting principles. At least in the sex and race harrasment cases, sex and race provide some boundaries for what conduct will come under the purview of Title VII. Religion does not seem to provide the same kind of boundaries. Before the nonreligious celebrate the legal capture of religious harrasment law, the courts should consider lids for Pandora's box.

C. Proselytization

While courts have encountered few cases involving allegations of outright proselytization in the workplace, such cases are coming before the courts with greater frequency. [FN107] In situations where one employee accuses a co-worker of harassment, the employer may be caught in the middle, and without clear guidelines, will be uncertain how to resolve the conflict. Since the religious practices of both the employee engaging in the alleged harassment, and the employee being targeted are at stake, they may ask for a reasonable accommodation from the employer.

Moreover, if a governmental employer wary of religious harassment claims bans or seriously limits workplace religious discussions, displays, or advocacy, it risks violating the constitutional right to the freedom of speech and the free exercise of religion. Recent cases illustrate the difficulties inherent in reaching sensible outcomes to such conflicts.

In Brown v. Polk County, [FN 108] plaintiff Brown was director of information services for Polk County, Iowa. Among other activities, Brown, a born-again Christian, allowed several employees to say prayers in his office during departmental meetings, and, at one work-related meeting, referred to Bible passages relating to slothfulness and work ethics. [FN109] Brown was subsequently reprimanded by the county administrator for his actions and directed to refrain from any activity which "could be considered to be religious proselytizing, witnessing, or counseling." [FN110] Additionally, he was instructed to remove from his office any items having a religious connotation, including his desk Bible. [FN111] Brown sued the county, alleging violations of the Constitution, Title VII, and Iowa state law. [FN112]

The Eight Circuit reversed the lower court which had entered judgement for the county. The court found the county liable for reprimanding Brown and found that its directive violated the First Amendment. [FN113] The court noted that allowing occasional spontaneous prayers and isolated references to religious beliefs could not amount to undue hardship, particularly when no evidence was presented of "reasonable employee concern" that Brown's personnel decisions would be affected by his religious beliefs. [FN114]

The court found the county's directive far too broad, in that it essentially mandated the removal of religion from the workplace. [FN115] The court noted that the county may have "a legal right to ensure that its workplace is free from religious activity that harasses or intimidates. But any interference with religious activity that the exercise of that right entails must be reasonably related to the exercise of that right….." [FN116] The county's directive "exhibited a hostility to religion that our Constitution simply prohibits." [FN117]

In Tucker v. California, [FN118] a case involving similar state action, the Ninth Circuit held that California's Department of Education violated the First Amendment when it banned the display of any religious materials outside employees' offices and banned any religious advocacy. [FN119] In Tucker, the Department of Education issued the orders banning religious displays and advocacy after Tucker begin placing the phrase "Servant of the Lord Jesus Christ" on the label of a computer program which he distributed within the department. [FN120] Tucker's supervisors soon ordered him to refrain from using any phrases or symbols with a religious connotation on any workplace document. [FN121] They further banned Tucker from engaging in any religious discussions in the workplace and prohibited the display or promotion of any religious materials outside of his workplace. [FN122]

The court found none of the state's asserted interests, which included promoting efficiency in the workplace and protecting the liberty interests of other employees, sufficient to justify the ban. [FN123] The court also found it "not reasonable to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and material."[FN124]

The decisions reached by the courts in Brown and Tucker appear relatively easy. The employer's response to religious activity in each case clearly crossed the line by virtually prohibiting all workplace discussions of religion. Ensuring that the workplace is free from religious intimidation or harassment is a proper goal, but related efforts need to be narrowly structured to avoid eliminating religion from the workplace entirely. [FN125] While both Brown and Tucker appeared to set the record straight on religious expression in the workplace, what both cases lacked was religious advocacy that invoked complaints from co-workers.

In Wilson v. U.S. West Communications, [FN126] Wilson, a Roman Catholic, made a religious vow in July 1990 to wear an anti-abortion button at all times. Her button showed a color picture of a fetus and contained the words "Stop Abortion" and "They're forgetting someone." [FN127] After co-workers complained of the button's offensive and disturbing nature, Wilson met with her supervisors who suggested she cover or modify the button. After refusing to change the button and being sent home, Wilson was fired. Wilson sued, alleging religious harrasment under Title VII. [FN128] The court found the employer attempted a reasonable solution and was not liable. [FN129]

The Wilson court determined that an expression of religious beliefs in the workplace could cause serious turmoil when directed at others and concluded that co-workers should not be forced to put up with such activity if reasonable alternatives exist. [FN130] It thus signaled that workplace proselytization, whether motivated by animus or not, could constitute harassment if it caused a hostile work atmosphere. The law continues to evolve and weigh the rights of the religious and the nonreligious in the workplace. As religious harassment law expands into the area of restrictions on proselytization, freedom of speech becomes the victim. As conservative Christians grow more aware of their rights, however, this type of action will only increase the likelihood of lawsuits. [FN131]

The Ten Commandments: Proposed Guidelines for Employers

Complaints based on religious harassment are increasing in number. Cases and federal statutes dealing with the issue are ambiguous and send conflicting messages. Recent attempts to provide clearer guidelines by the EEOC have failed. Thus, employers and employees alike are left unsure of their rights and responsibilities. Barring the enactment of new legislation aimed at addressing the religious harassment, the EEOC should formulate new guidelines narrowly tailored to clarify what behavior constitutes harassment. Guidelines should allow for innocent and healthy expressions of religion in the workplace and make clear that turning the workplace into a "religion-free" zone is impermissible. Religious harassment law should return its focus to protecting the religious as well as the nonreligious in upholding freedom of speech and the free exercise clause. In the absence of such clear guidelines, practical recommendations for employers are included in this section.

1.) Employer's harassment policy and training programs should make it clear that religious harassment should be treated the same as harassment based on sex, race, national origin, age, or disability. [FN132]

2.) A religious harassment complaint should get an employer's immediate and undivided attention. Once the employer is made aware of a complaint, the liability for employer is substantially greater.

3.) Upon receiving a complaint, an employer should make an immediate investigation that focuses on the frequency and severity of the alleged discriminatory conduct.

4.) An investigation of a complaint should consider whether the normal operation of business was disrupted and whether co-workers job performance was affected by the offensive or threatening conduct.

5.) When the workplace is composed of individuals with strong religious beliefs, employers should take steps to establish an air of reasonableness in their accommodation of these employees. Any action that demonstrates the employer's good faith effort at accommodation may help to prove compliance with the law.

6.) Employers are further advised against ever automatically refusing a request, even if the employer knows the answer immediately.

7.) An employer should never ask an interviewee if he or she can work on Saturday. If the employer does not hire that person, it is often presumed that her refusal to work on Saturday was the reason. If hindsight discloses that the interviewee practices his religion on Saturday, legal problems may result.

8.) Employers should be willing to offer space within the company for employees to discuss religion or conduct a Bible study during their break time. Such a gesture will demonstrate a good-faith effort at accommodation.

9.) If employers engage in traditional religious traditions, do not promote such events in a way that could be construed as making attendance at such functions a condition of employment.

10.) Avoid absolute bans on confined religious expression. Incorporate flexibility into any policy that governs the balance of religious beliefs and religious harassment.

Conclusion

In a day of fallen values and absent character, it seems silly for employers to worry about religion in the workplace. However, as long as millions of people seek to share with others the joy of their faith, these feelings will continue to spill over into the workplace. This occurrence has forced employers to act as referees between employees who want to praise the Lord and others who would prefer not to be bothered. However, until the courts find a uniform standard by which to judge the problems that arise, employers will continue to face real problems with only their common sense and civility to guide them in accommodating their employees and avoiding liability.

When a person is subjected to repeated religious epithets and statements sufficiently pervasive enough to create an abusive work environment, Title VII clearly affords protection to the victim, at the expense of the employer. Rarely, however are cases this easy. The tougher case involves an isolated occurrence or a question of whether the conduct of a supervisor or employee, in response to a complaint amounted to reasonable accommodation. Employers are warned that they must accommodate an employee's religion unless such accommodation would represent an undue hardship for them, but also are told that the courts will impose their own judgement and decide whether such accommodation in fact presents an undue hardship on the basis of such factors.

Employers must be advised on how to deal with these problems and reminded that they have rights as well. Employers have a legitimate interest in not having their productivity suffer as their employees discuss salvation. On the other hand, there is no reason why casual conversation, allowed over breaks, cannot focus on religion as well as last night's softball game. An employer should not establish rules so harsh as to ban all outward displays of religion in an attempt to avoid disputes. In fact, such a policy will most certainly transform an employer into a defendant.

Until the EEOC resurrects its guidelines or courts unite and clarify the issues, the development of the law will continue to lag behind growing diversity in the workplace. As long as this void exists between religion, harassment guidelines, precedent, and politics, the employer and the religious alike will need exceptional legal guidance to survive.

Footnotes

FN1. See Kate Thomas, Can I Get A Witness? Spreading God's Word on the Job: Courts Are Asked to Decide When Religious Expression Amounts to Harassment, Nat'l L.J., Sept. 16, 1996, at A1.

FN2. Id. at 4.

FN3. Id. at 3.

FN4. See Margaret A. Jacobs, Courts Wrestle with Religion in Workplace, Wall St. J., Oct. 10, 1995, at B1.

FN5. Thomas, supra note 3.

FN6. Some courts have articulated the need for mutual accommodation for employees seeking accommodation of their religious needs. E.g., Smith v. Pyro Mining Co., 827 F.2d 1081, 1084-85 (6th Cir. 1987); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 145-46 (5th Cir. 1982).

FN7. 42 U.S.C. sec. 2000e (1996).

FN8. 42 U.S.C. sec. 2000e-2(a).

FN9. See Steven D. Jamar, Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom, 40 N.Y.L. Sch. L. Rev. 719, 730 (1996).

FN10. The legislative history of sec. 703 contains no explanation or debate concerning the inclusion of religion as a protected class under the statute. See Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964 (1968). Indeed, the only substantive mentions of religion concerned an amendment to exempt religious corporations and religiously affiliated educational entities from the religious mandate of the Act, id. at 3179-3212, and a proposed amendment "that would have permitted employers to refuse to hire atheists," id. at 3101-02.

FN11. The numerous histories of Title VII are noteworthy not for what they reveal about the prohibition against religious discrimination, but for their relative silence on the subject. See, Francis J Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L. Rev. 431 (1966).

FN12. 29 C.F.R. Sec. 1605.1 (1967).

FN13. 29 C.F.R. Sec. 1605.1 (1967). The United States Supreme Court later broadly defined "undue hardship" as any effect on that business that is "more than de minimis." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84-85, 97 S. Ct. 2264, 2277, 53 L.Ed. 2d 113, 131 (1977).

FN14. See 42 U.S.C. sec. 2000e(j) (1996).

FN15. 29 C.F.R. sec. 1605.1 (1968); see also Civil Rights Act of 1964, Sec. 701(j), 42 U.S.C. sec. 2000e(j) (Supp. V. 1993).

FN16. Section 701(j) was added to the 1972 amendments on the floor of the Senate. "The legislative history of the measure consists almost entirely of a brief floor debate in the Senate, contained in less than two pages of the Congressional Record and consisting principally of the views of the proponent of the measure, Senator Jennings Randolph." 118 Cong. Rec. 705-706 (1972). It is clear from the language of section 701(j) that Congress intended to change this result by requiring some form of accommodation; however this provision says nothing about how much an employer must do to satisfy its statutory obligation. See Hardison, 432 U.S. at 75 n. 7.

FN17. See Sally Brandes, Note, Religious Discrimination in Employment-The Undoing of Title VII's Reasonable Accommodation Standard, 44 Brook. L. Rev. 598, 600 n.12 (1978).

FN18. It is noteworthy that the facts of EEOC Decision No. 72-1114, the earliest religious harassment decision, raised inter alia a claim of constructive discharge. The law of constructive discharge, which proves that an employee has stated a claim of illegal termination by resigning in reasonable response to illegal employment conditions, is tantamount to a "hostile work environment" claim in the modern law of harassment. Mack A. Player, Employment Discrimination Law 200 note. 6 at 426 (1988).

FN19. 509 F.2d 140 (5th Cir. 1975).

FN20. Id. at 144

FN21. 424 F. Supp. 157 (S. D. Ohio 1976).

FN22. Id. at 158.

FN23. Id. at 160. Significantly, Compston effectively imposed strict liability upon employers for intentional harassment by supervisors, thus obviating any need for a threshold showing of severity as contemplated in Rogers. The conclusion that intentional religious harassment by a supervisor "will necessarily have the effect of altering the conditions of the victim's employment," id. at 161, represented a judicial presumption that such managerial conduct violated per se the threshold of severity sufficient to impose liability under Title VII. The court reversed judgment on the question of whether liability would attach for harassment perpetrated by co-workers rather than supervisors, an issue upon which the courts were divided. Id. at 160.

FN24. 432 U.S. 63, at 66, (1977).

FN25. Id. at 67.

FN26. Id.

FN27. Id. at 68-69.

FN28. Id. at 84.

FN29. Id. at 74.

FN30. 595 F. Supp. 1050 (E.D. Va. 1984).

FN31. Id. at 1056-57. The plaintiff in Weiss was subjected to taunts such as "resident Jew," "Jew faggot," "rich Jew," and "Christ Killer". The plaintiff was subjected to an office tradition euphemistically titled the "Easter Pageant" in which the staff satirized the crucifixion. Id. Upon learning that the plaintiff was Jewish, the tormentors concluded that he would be required to play the role of Christ in this parody of the crucifixion. Id. Thus, the taunt, "you killed Christ, Wally, so you will have to hang on the cross," Id. at 1053 became vividly explicable.

FN32. Russell Post, The Serpentine Wall and the Serpent's Tongue: Rethinking the Religious Harassment Debate, 83 Va. L. Rev. 177, February, 1997, at 185.

FN33. Weiss, 595 F. Supp. at 1056. Quid pro quo harassment is most common in the context of sexual harassment, where it denotes the coercion of sexual relations with a subordinate by either threats of retaliation or promises of employment opportunity. See, e.g., Lex K. Larson, Employment Discrimination (2d ed. 1996). By definition, quid pro quo harassment is very rare in the religious context; such demands of religious conformity would be expected to arise primarily in the policy of religious corporations, which are exempt from the prohibition against religious discrimination. See 42 U.S.C. Sec. 2000e-2(e) 1994.

FN34. Weiss, 595 F. Supp. at 1056. Significantly, Weiss extended the rationale of Compston to harassment by co-workers as well as supervisors, a conclusion the prior court had refused to reach. See supra note 31.

FN35. Id. at 1057. A plaintiff may satisfy this burden by showing that complaints were actually filed with the employer, or that the harassment was so pervasive that the court may infer constructive knowledge by the employer. Id.

FN36. Id. Compare Marlowe v. General Motors Corp., 11 F.E. P. Cases 1357, 1359 (E.D. Mich. 1975) (demonstrating less rigorous standards of remedial action in an earlier era of Title VII harassment liability).

FN37. It is a measure of the interdependence that harassment law has achieved, and the recognition that religious harassment doctrine has been accorded, that Weiss has been widely cited by courts adjudicating all manner of harassment disputes. See, e.g., Volk v. Coler, 638 F. Supp. 1555, 1559 (C.D. Ill. 1986) (sexual harassment); Moffett v. Gene B. Glick Co., 621 F. Supp. 244, 269-70 (N.D. Ind. 1985) (racial harassment).

FN38. 510 U.S. 17 (1993).

FN39. Id. at 21-22.

FN40. Id. at 22-23. The harassment calculus may include the frequency, severity, and nature of the challenged conduct, as well as its effect on the work performance and psychological health of the victim. Id at 23.

FN41. Meritor, 477 U.S. at 68. In determining whether harassment is "sever or pervasive," the court ruled that the trier of fact should consider "the totality of circumstances," including the nature of the conduct in question, the context in which the conduct occurred and whether the plaintiff expressed offense at the conduct. No single factor is dispositive of the ultimate question whether the challenged conduct constituted harassment, but the court must evaluate "the record as a whole."

FN42. See Post at 189.

FN43. Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age, or Disability, 58 Fed. Reg. 51266, at 51268-69 (Oct. 1, 1993) (intended to have been codified at 29 C.F.R. sec. 1609).

FN44. Id. at 51269 n.2.

FN45. Id. at 51267.

FN46. Id. at 51269 n.2.

FN47. Id. at 51269 n.3.

FN48. Id.

FN49. Id. at 51269 n.5.

FN50. Plan to Extend Job Harassment Rule to Religion Draws Fire, supra note 60.

FN51. See, e.g., EEOC's Religious Harassment Guidance Would Restrict Even Casual Workplace Conversations About Beliefs. SHRM says, PR Newswire, June 14, 1994, available in LEXIS-NEXIS Library.

FN52. Concerns about Free Speech, Religious Bias Promps EEOC to Re-Examine Proposed Rules, supra note 79; Religion on the Job, Wash. Post, June 25, 1994, at A20.

FN53. The effect of the EEOC's Proposed Guidelines on Religion in the Workplace: Hearing before the Subcomm. On Courts and Administrative Practice of the Senate Comm. On the Judiciary, 103d Cong., 2d Sess. 16-17 (1994).

FN54. Id at 55, 63, 80-81, 87.

FN55. See supra text accompanying note 81.

FN56. Hearing, supra note 59, at 36 (prepared statement of Dudley Rochelle).

FN57. 140 Cong. Rec. S 7015-29 (daily ed. June 16, 1994) (approving the measure by a vote of 94-0).

FN58. Id. at S7022-23.

FN59. EEOC Drops Guidelines, Wash. Post, Sept. 24, 1994, at C7; Religious Harassment Rules Shelved, L.A. Times, Sept. 21, 1994, at A17; EEOC Will Withdraw Controversial Religious Harassment Guidelines, Daily Labor Report (BNA) Sept. 20, 1994. The official notice of withdrawal was published at 59 Fed. Reg. 51396 (1994). Throughout the religious harassment debate, the EEOC refused to delete religious harassment from the conduct prohibited by the Guidelines on Harassment, arguing that to do so would send the wrong message to employers. "Although deletion of religion from the Proposed Guidelines seems like a simple solution, Commission staff remains extremely cautious about treating one protected class differently than all others. Religious discrimination, including harassment, is an unfortunate reality in today's workplace. Any action that would weaken the protections afforded by Title VII from religious discrimination should be closely examined." Hearing, supra note at 59, at 13 (Statement of Elizabeth Thornton, Acting Legal Counsel for the EEOC).

FN60. EEOC will have little choice But to Expand Rule of ADR, Silberman says, Daily Labor Report (BNA) Oct. 7, 1994. Available in Westlaw BNA-DLR.

FN61. Hearing, supra note 59, at 39 (prepared statement of Professor Douglas Laycock).

FN62. Young v. Southwestern Savings & Loan Ass'n, 509 F.2d 140 (5th Cir. 1975).

FN63. Relatively speaking, First Amendment objections to sexual harassment law are unpersuasive because the courts are not inclined to afford sexually offensive speech-particularly that which rises to the level of "severe and pervasive" conduct-a privileged position in the pantheon of First Amendment values. See, e.g. R.A.V. v. City of St. Paul, 505 U.S. 377, 389,390 (1992) (suggesting that sexually derogatory language may be regulated under Title VII without offending the First Amendment) See generally Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog that Didn't Bark, 1994 Sup. Ct. Rev. 1 (arguing that First Amendment jurisprudence recognizes a spectrum of protected expression and concluding that sexually offensive speech characteristically possesses little First Amendment value). In realist terms, for proponents of harassment doctrine, the compelling force of the antidiscrimination principle supercedes the marginal interest in protecting sexually offensive expression. In contrast, religious speech occupies the very core of the First Amendment. "A religious speech goes to the very core of the First Amendment, implicating both the right to speak and the right to freely exercise one's religion." Lowrance v. Couglin, 862 F. Supp. 1090, 1104 (S.D.N.Y. 1994).

FN64. Although an extensive First Amendment analysis is beyond the scope of this note, the risk that ambiguous workplace harassment doctrine will "chill" religious expression in the workplace was discussed in great detail in the Senate hearings on the proposed religious harassment guidelines. See, e.g., Hearing, supra note 59, at 31-34 (prepared statement of Dudley C. Rochelle); id. at 43-45 (prepared statement of Professor Douglas Laycock); id. at 55-56 (prepared statement of Robert S. Peck).

FN65. Hearing, supra note 59, at 41.

FN66. Id. at 55 (prepared statement of Robert Peck).

FN67. 852 P.2d 859 (Or. Ct. App.), aff'd 903 P.2d 351 (1993).

FN68. Meltebeke, 852 P.2d at 861.

FN69. Id.

FN70. Id. Meltebeke was assessed $3,000.

FN71. Id. at 861 (Edmonds, J., concurring).

FN72. Id. at 865.

FN73. Id. at 866.

FN74. Meltebeke, 852 P.2d. at 870.

FN75. Id. at 871 (Riggs, J., dissenting) (stating "for many, freedom from religion is as important as freedom to practice religion…(and) is entitled to the same level of constitutional, statutory and administrative protection in the workplace").

FN76. See e.g. Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio 1976) (Finding that plaintiff was the target of numerous anti-Semitic slurs.) As of 1994, all successful federal harassment cases based on animus involved Jews as the victim.

FN77. Categories 2 and 3 are linked in the since that both involve the sharing of religious beliefs that may not be wanted. The second category is a more passive form of harassment, however, and is made more problematic if meetings are mandatory, with no accommodations for those that differ. Category 3, on the other hand, is marked by a lack of subtlety, more akin to missionary work, and marked by aggressive advances. If such advances are unwanted, yet continue unabated, they could rise to the level of religious harassment.

FN78. 424 F. Supp. 157 (S.D. Ohio 1976).

FN79. Id. at 160. While the court agreed that Compston had been harassed, it awarded him only 50 dollars in nominal damages and denied back pay and injunctive relief because it found that his firing was job related. Id. at 162-63.

FN80. See, e.g., Turner v. Barr, 806 F. Supp. 1025, 1028 (D.D.C. 1992) (finding that "harassment altered and adversely affected the conditions of his employment and created a hostile environment"); Weiss v. United States, 595 F. Supp. 1050, 1056 (E.D. Va. 1984) (stating that "continuous abusive language, whether racist, sexist, or religious in form, can often pollute a healthy working environment by making an employee feel uncomfortable or unwanted in his surroundings").

FN81. "Quid pro quo" harassment occurs when an employer or supervisor alters job conditions or withholds economic benefits in response to an employee's refusal to engage in an activity impermissibly requested by the employer or supervisor. Such harassment occurs, for example, when an employee is demoted after resisting her employer's sexual advances.

FN82. Plaintiffs often bring sexual harassment claims on both "quid pro quo" and hostile environment theories. See e.g., Kaufman v. Checkers Drive-in Restaurants, Inc., 122 F.3d 892 (11th Cir. 1997).

FN83. For an example of "quid pro quo" religious harassment, where an employee was asked to renounce certain religious beliefs in exchange for job benefits, see Venters v. City of Delphi, 1997 WL 471341, at 17 (7th Cir. Aug. 19, 1997).

FN84. 477 U.S. 57 (1986).

FN85. Id. at 65.

FN86. Theresa M. Beiner & John M. A. DiPippa, Hostile Environments and the Religious Employee, 19 U. Ark. Little Rock L.J. 577 (1997) at 614.

FN87. Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988) (urinating in gas tank of woman's car); Hansel v. Public Serv. Co., 778 F. Supp. 1126, 1128 (D. Colo. 1991) (noting that the plaintiff was hit over the head with a crescent wrench with such force that her helmet was dented; shunned and ostracized by coworkers).

FN88. Beiner & DiPippa, supra note 1, at 595-610.

FN89. Beiner & DiPippa, supra note 1, at 599, 602-03.

FN90. Beiner & DiPippa, supra note 1, at 595-602.

FN91. 509 F.2d 140 (5th Cir. 1975).

FN92. 859 F.2d 610 (9th Cir. 1988).

FN93. Id. at 612.

FN94. Id.

FN95. Id.

FN96. Id.

FN97. Id.

FN98. 859 F.2d at 619-20.

FN99. Id. at 620-21.

FN100. See supra text accompanying notes 13-30.

FN101. See, e.g., Gregory, supra note 32, at 139 (stating that for committed atheists, prayer is a silly waste of time").

FN102. 509 F.2d 140 (5th Cir. 1975).

FN103. Young, 509 F.2d at 142; Towney, 859 F.2d at 612.

FN104. But see Judge Noonan's dissent in Towney, bemoaning the tendency of the Supreme Court, and courts in general, to limit the Free Exercise right when it conflicts with federal legislation. Townley, 859 F.2d at 624 (Noonan, J., dissenting) (stating that "in the Supreme Court the Constitution has been no shield when Congress has ordained that the spirit must yield to secular needs').

FN105. Judge Noonan reads into the Townley majority opinion the view that religious matters should not infiltrate the workplace and argues that the majority opinion makes it extremely difficult for those seeking to integrate the workplace with their religious life. He notes: "The EEOC and the court appear to assume that there must be a sharp division between secular activity and religious activity….Such a split is attractive to some religious persons. It is repudiated by many, especially those who seek to integrate their lives and to integrate their activities." Id. at 624-25. The notion that these cases may lead some to believe they must separate their public self from their religious ones is troubling. However, note that in both cases the employers could continue their services so long as they made the requisite reasonable accommodation, such as allowing those with religious objections to be excused. The majority in Townley did not even force the employer to make services voluntary for all, only for those with known objections. Id. at 620.

FN106. See Beiner & DiPippa, supra note 1, at 634.

FN107. Some commentators argue that the rise of the "Religious Right," with its emphasis on religious freedoms and equality, among the factors leading toward an increase in aggressive workplace behavior that may result in harassment. See, e.g., Dean J. Schaner and Melissa M. Erlemeir, When Faith and Work Collide: Defining Standards for Religious Harassment in the Workplace, Employee Rel.L.J., June 1, 1995; Josh Schopf, Religious Activity and Proselytization in the Workplace: The Murky Line Between Healthy Expression and Unlawful Harassment, 31 Colum. J. L. 1997.

FN108. 61 F.3d 650 (8th Cir. 1995).

FN109. Id. at 652.

FN110. Id.

FN111. Id. at 652-53.

FN112. Id. at 653.

FN113. Id. at 659.

FN114. Id. at 656-57.

FN115. Id. at 657-59.

FN116. Id. at 658.

FN117. Id. at 659.

FN118. 97 F.3d 1204 (9th Cir. 1996).

FN119. Id.

FN120. Id. at 1208.

FN121. Id.

FN122. Id.

FN123. Id. at 1211.

FN124. Id. at 1215.

FN125. Note that while no employees issued complaints in either Brown or Tucker, the record in Brown did indicate that some employees felt that a division existed in the office between Christians and non-Christians, although they did not think it affected work in any way. Brown, 61 F.3d at 657.

FN126. 58 F.3d 1337 (8th Cir. 1995).

FN127. Id. at 1339.

FN128. Id. at 1339-40.

FN129. Id. at 1340. The plaintiff argued before the court that her vow required her to be a "living witness" and thus prohibited her from even covering the button. The district court made a factual finding that the plaintiff's vow did not so require, and the circuit court held that the district court's finding was supported by the evidence and not clearly erroneous. Id. at 1341.

FN130. Wilson v. U.S. West Communications, 58 F.3d 1337, 1342 (8th Cir. 1995).

FN131. Julia Spoor, Go Tell It On The Mountain, But Keep It Out Of The Office: Religious Harassment In The Workplace, 31 Val. U.L. Rev. 971 (1997) at 1008.

FN132. Hunter Carroll, Damned If They Do, Damned If They Don't: The Collision Between Religion And The Workplace Has Employers Caught In The Middle, 20 Am. J. Trial Advoc. 331 (1997) at 337. Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age, or Disability, 58 Fed. Reg. 51266, at 51268-69 (Oct. 1, 1993).