Oregon House Passes Half-Measure on Workplace Religious FreedomJon Perr

Last week, the Oregon House passed the Religious Freedom Act.  The bill (HB 3539) protects the rights of employees to wear religious clothing in the workplace and to take time off for religious observance.  Sadly, the Religious Freedom Act is a half-measure.  Because when it comes to faith-based discrimination and coercion in the workplace, Americans deserve not just freedom of religion, but freedom from religion as well.

On its face, little about the RFA seems objectionable.  The bill, co-sponsored by House Majority Leader Dave Hunt (D-Clackamas County) and Arnie Roblan (D-Coos Bay), allows employees to use vacation or other time off for religious observances, rituals and holy days, unless the absence were to cause an "undue hardship" on the employer's business.  In addition, the bill protects the rights of employees to don religious garments, such as a Muslim headscarf or Jewish yarmulke, within the workplace.  As Rep. David Edwards (D-Hillboro) noted:

"People of faith in the workplace too often confront impossible conflicts between their employment obligations and their religious obligations.  This bill goes a long way toward eliminating those conflicts."

Some conflicts perhaps, but not others.  That's because increasingly, American workers face new and insidious threats to their religious liberty not just from their employers, but from their colleagues.  A new wave of faith-based CEOs and evangelizing co-workers is creating not-so-subtle pressure on employees to, well, see the light.

First, a little background.  Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment.  In 1993, the EEOC proposed revised guidelines extending its prohibitions against sexual harassment to a range of other forms of discrimination in the workplace.  But the proposed standard defining "harassment" as activity that was offensive to a reasonable person in the victim's position quickly drew the ire of Senator Jesse Helms (R-NC) and many evangelical Christians.  Fearing that the new EEOC guidelines would enable legal actions by atheists, unwed mothers or gay workers offended by "evangelical Christians' efforts to convey God's word as they believed it to be," Helms and his allies in Congress successfully blocked the new EEOC proposals.

In the absence of a "hostile environment" standard for workplace religious discrimination, the result has been legal confusion, especially when it comes to efforts by one worker to proselytize others.  In an October 2006 case, a California court upheld the firing of an employee for "persistent and blatant proselytizing" at work.  The employee had sent companywide emails with religious literature and solicitations, held weekly prayer meetings and used amplifiers to broadcast Christmas and Easter music.  Only after repeated warnings was she dismissed.

But other, less egregious cases of invasive religiosity have withstood judicial scrutiny.  In a 1996 case, a Kansas court supported two cafeteria workers who greeted customers with expressions such as "Praise the Lord" and "God bless you," instead of the company-mandated "Hello. What can I get for you today?"  Courts have similarly upheld the display of an employee's religious materials in a workplace cubicle, limited one-on-one proselytizing, and individual objections to corporate diversity manuals on religious grounds.

Increasingly, employees of all faiths face the unspoken pressure and subtle coercion of supposedly voluntary religious practices at work.  In one infamous example, former Attorney General John Ashcroft routinely gathered employees for prayer and Scripture reading every morning at 8:00 AM.  Though Ashcroft claimed "It is against my religion to impose my religion on people," the message to Justice Department employees seeking to stay in the boss' good graces was clear.

In the private sector, business managers can legally hold prayer meetings and other faith-based activities during off-hours, provided that participation is not a basis for employment, pay raises or promotions and that people of other faiths have alternatives.  By 1999, such prayer groups numbered 10,000 nationwide.  And as CEOs of companies meet at prayer breakfasts nationwide, their companies make chaplains available to the sick and the depressed and stress the business lessons of the Bible or Talmud.  Voluntary or not, the impact for workers of the wrong (or no) faith is clear:  if you don't participate, your career may not have a prayer.

It's no wonder that workplace discrimination cases have risen 82% in recent years.  Post 9/11 concerns over the rights of Muslim workers, a more aggressive posture from Christian organizations and the lack of clear standards combine to produce confusion, conflict and clashes among workers of dueling faiths and spiritual traditions.

All of which serves to highlight the shortcomings of the House Democrats' Religious Freedom Act.  Oregon workers need protection from both the unwritten biases of their bosses and the unwanted spiritual advances of their colleagues.  House Bill 2893 might be a good place to start.  Sponsored by Rep. Mike Schauffler, the bill not only prohibits employers from requiring workers' attendance at meetings or subjecting them to communications for the purpose of promoting political or religious views.  It also enables civil action by employees should they face retribution over their employers' violations of the law.

The freedoms of religion and expression are among the hallmarks of American democracy.  New Jersey, like Oregon and New York, is pursing religious freedom legislation for employees. But workplace religious discrimination, as they say, can work in mysterious ways.  Of course, American workers need freedom of religion. Sometimes, though, we must protect our freedom from it.

UPDATE:  Reader Matthew Sutton notes that ORS 659A.030 likely bans the most egregious forms of religious discrimination on the part of Oregon employers.  However, it would appear to provide little guidance - or protection - for employees from either the proselytizing of their co-workers or the subtle pressures of company sponsored faith-based activities.  As the Bureau of Labor and Industries web site puts it:

"Dissension or dissatisfaction of co-workers is rarely enough to cause an undue hardship. In such situations, the courts have looked to see if the employer has done everything possible to minimize the problems."

June 12, 2007 | Jon Perr | Comments (29 so far) Permalink: Oregon House Passes Half-Measure on Workplace Religious Freedom

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