Oregon House Passes Half-Measure on Workplace Religious Freedom

Jon 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."

Comments

  • Earl (unverified)
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    Sounds like you might just want to outlaw any conservative Christians, Jews and Muslims from the workplace, and eliminate the problem in one fell swoop.

    Wouldn't that address your concerns in a more forthright fashion?

  • Matthew Sutton (unverified)
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    I appreciate your concerns Jon but I don't know how exactly one could legislate further to address it.

    I believe that Oregon's Unlawful Employment Practices Act (ORS 659A See BOLI website) already prohibits employers from discriminating against employees upon the basis of religion. In my view, an employer in Oregon could be held liable if there were any retributions against an employer for being an aethist, not participating in Bible studies, not going to church, etc. As such, any employer who does so in Oregon is already doing so at his or her own risk.

  • Jon (unverified)
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    Earl,

    On the contrary, the point is to ensure workplace environments that respect and protect workers of all faiths and religions.

    Matthew,

    Thanks for the additional background. I will definitely check it out.

    As for legislation, the problem is how to address the less clear cut cases where the environment impacts promotions, pay and prestige, or where some employees feel threatened, alienated or socially ostracized. Getting legislative clarity in the standards at both the federal and state levels would be helpful.

  • Oregon Bill (unverified)
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    So does this mean - as a Pastafarian - I can bring my pirate sword to work?

    Yar!

  • LeoXXIII (unverified)
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    Democrats use to stand up for principles and protecting all people---now they just want to coddle the religious in hopes of getting their votes--- Another reason to be disappointed w/ the party.

  • Red Cloud (unverified)
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    Screen names are interesting. Take LeoXIII. Leo XIII (1878-1903) had some intersting views of freedom of religion (this from the website of Benedictine Order - http://www.wrmosb.org/default.html ):

    The church as a right to monopoly of religion in any Catholic state. Therefore, error must not be granted freedom to spread itself.

    Freedom and truth are incompatible. Trust must be enforced by the state at the Church's command whenever possible.

    Each state must profess the true faith as its official policy and tolerate the least possible liberty of conscience for the least possible length of time.

    It is always urgent, indeed, the chief preoccupation, to think best how to serve the interests of Catholicism. In every election, Catholics are obliged to vote for those "who pledge themselves to the Catholic cause and never prefer to them anyone hostile to the Catholic religion...which is the only true religion."

    I think Schauffler's bill is a good start. When I encounter argument about public policy relating to, say, abortion, gay marriage, prayer in school, my response is that I will discuss the issue so long as the foundation of that position does not turn on a faith-based interpretation of what ought to be.

    For example, I could see banning abortion and birth-control if it were a matter of public policy to encourage population growth (negative growth, need for cannon fodder, etc). But if the need for the policy turns on what one believes, then it has no place in public policy.

  • BlueNote (unverified)
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    I assume that the "clothing" portion of this bill is aimed at protecting women who wear the Islamic Hijab? I have not heard of anyone else having any issues with religious clothing at work, with the possible exception of a few places that have tried to ban the wearing of the Sikh turban. There are not a huge number of Orthodox Jews in Oregon, but I have not heard of an incident where a person was punished or harassed at work for wearing a yarmulke.

    Either way, I don't think you can accuse Dems of pandering to the 'religious' in bringing up this measure. The vast majority of mainstream religious folks are more likely to hold this against the Dem leadership than they are to embrace it. Catholics, protestants, secular Jews and "born agains" don't wear anything special in the way of clothing and will not be benefited by the "clothing" part of this bill.

    I say congrats to the Dems for addressing this issue early - before it becomes a significant problem here like it is in France and other countries with much larger conservative Muslim populations.

  • LeoXXIII (unverified)
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    Red--True, there are very interesting screen names and Leo is an interesting character---keep looking and you could find more about him:)

    You are very correct on the issue of faith based positions and public policy--

  • Oregon Bill (unverified)
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    A friend works at Providence (the Sisters of Profit), and notes that many meetings start off with a prayer. Then it's off to provide incomplete medical coverage for young women, discriminate against gay and lesbian couples, etcetera, because the Lord Isis (or Hermes?) says "Shazam!"

    But hallelujah - I suppose now the Mormons can finally wear that "special underwear" OVER their pants, in the way those stone tablets handed to Joseph Smith by the winged, shimmering Angel Moroni originally required..

  • Jesus (unverified)
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    In this country, out of Jews, Muslims, whatever, and Christians, who's the most likely to insist that others bend to their beliefs? You know what the answer is. Just sayin'

  • Bill R. (unverified)
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    So what is the principle here, majority rules, or, on the other side, make exceptions for every cult that calls itself a "religion" to take the day off or cut the head off chickens, take mushrooms, or what? This is all a slippery slope. In Hawaii the majority religion is Buddhism, so does that mean the heart sutra can and should be recited in the workplace, or engraven on the courthouse wall?

    This is all a slippery slope. If you make a mandate to employers they give the day off to employees for Yom Kippur, why not the day off for the prophet's ascension or the Buddha's birthday? (Even as a Christian I would gladly dispense with the paid holidy on Christmas, as it's become a sacrilege anyway.) Have you been in countries where every local patron saint is an occasion for holiday?

    Most of all we need to have a workplace where workers are protected from the imposition of religion, or what passes for religion in the view of the employer or fellow workers.

  • Oregon Bill (unverified)
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    Another issue - a headscarf that covers the face makes it difficult to communicate with other people, who can't see your expression.

    So a desk job, fine - but a teacher? A police officer?

    And again, all based on absolute, usually misogynist, homophobic, anti-science, evidence-free fantasy...

    god bless the Democrats

  • (Show?)

    These are tough things for a society to handle. France, it seems clear, went overboard by banning Muslim headscarves. But Jon's correct that you can go too far in the other direction: when religious expression becomes an act of conversion, it's no longer good for the social contract.

    Of course, zealots will always try to promote their faith and stifle others'. There's no way to stop individual expressions from worker to worker. So whatever law we want to adopt needs to take into account that trying to do so would create a big-brother structure no one would like.

    Sometimes the best laws are the lightest--they protect rights, but don't legislate behavior.

    Nice rumination, Jon.

  • Red Cloud (unverified)
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    Bill R writes:

    "This is all a slippery slope. If you make a mandate to employers they give the day off to employees for Yom Kippur, why not the day off for the prophet's ascension or the Buddha's birthday?"

    I'm not sure these Supreme Court Decisions are germane, but having been involved in a landmark Oregon case, I submit them nonetheless.

    Smith, Hobbie, and Sherbert address Bill's question (I think). The Hobbie decision can be read here:

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0480_0136_ZO.html

    In Hobbie, the Court stated: "the State may not force an employee . . .to choose between following the precepts of her religion and forfeiting benefits, . . . and abandoning one of the precepts of her religion in order to accept work."

  • (Show?)

    I second what Jeff says above. It is a razors edge in a way, where there is little area to stand on between forcing employers to be at the whims of every conceivable religious expression and holiday as protected and therefor taboo to keep out of the workplace, vs. the other side of that narrow middle ground where myriad forms of expression by a worker or workers (or even by the employer) are coercive and imposition of one religious tradition over others or over those with no religious faith.

    How do you protect coworkers from the proselytizing nut-ball? How do you protect someone of religious faith from discrimination because of that faith?

    It is a vastly complex set of issues with inherent tension between valid principles and positions. This is, as Jeff mentions above, why a careful and delicate touch is required legislatively. While Jon is correct that the more we can do legislatively to clarify for employers what will keep them out of the tall weeds, such need for clarity must be tempered with the very real need to be precise and careful for the reasons Jeff mentions.

  • raul (unverified)
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    I have a large number of visible tattoos, and almost all of them have a strong religious connotation- from footprints of the buddha to a celtic cross. Maybe I won't have to wear long sleeves anymore?

    The banning of headscarves in schools by France was way out of line- it is a harmless custom. Regarding the argument on whether or not someone wearing a full face burkha can be a cop, we'll worry about it when someone applies. It wouldn't be that hard to make accomodations, would it?

    My SO works at a religious hospital, and it was made clear that she had to observe the tenants of Jesus to be employed there. It was mentioned from the first interview. This law was originally written to protect an employee from this type of thing, as well as the mandatory prayer meeting before each shift. This behavior is wrong-

    If you wish to be an FSM type, and bring your sword to work, or wear any religious clothing that is fine. When you begin to proselytize, that is when it should be stopped. The burden of proof to show that an employer discriminated against you due to religion is set so high, my SO just chooses to keep her mouth shut and play the game.

  • Bill R. (unverified)
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    Smith, Hobbie, and Sherbert address Bill's question (I think). The Hobbie decision can be read here:

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0480_0136_ZO.html

    In Hobbie, the Court stated: "the State may not force an employee . . .to choose between following the precepts of her religion and forfeiting benefits, . . . and abandoning one of the precepts of her religion in order to accept work."

    <hr/>

    A great principle, but has the SCOTUS really defined what constitutes a legitimate religion and what are the limits of precepts that one must not be forced to abandon. I don't think so.

    It seems to me we have a real problem in this country with respecting proper boundaries between the public and the private, and making all this room for formal external religious observance to intrude in a formal way into the private is bad policy, and bad law. If people want to make their witness to their religion by all means do so in leading an ethical life. Forcing the observance of its formal trappings on others makes for civil discord. As the Dalai Lama says, "My religion is kindness." We don't need to have our faces pushed in anything beyond that I would hold.

  • Thomas Ware (unverified)
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    As a strict Constitutional Reconconstructionist [Oregon was a Republic, before it was a "state"], as well as a Pastafarian, can I bring m' deer rifle and sidearm to work!?

    Oh, that's right, I don't have a job. I was harrassed for six years by a Dominionist Christian bigot in a position to harass - the kind of guy who upon learning of one of his supervisor's [adopted] African American son, Beaver football ball star and prominent Portland attorney, spouted She's not that kind of a woman, is she!?, harrassed an Indian [Native American] kid 'till he quit, harrassed a Mexican kid 'till he quit, harrassed one of the politest gay kids I've ever known 'till he quit, harrassed this old hippie 'till I was faced with the choice of reaching out and popping its head like the pimple it is... or quit a [public sector - your tax dollars] job I had worked fifteen years to have.

    Why am I thinking about ant-hills right now...?

  • Rep. Dave Hunt (unverified)
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    Democrats should stand up for BOTH the separation of church/state AND prohibiting religious discrimination. Our Constitution clearly intends to both prevent the establishment of religion by government as well as protect the free exercise of religion. We are still grappling with that creative tension after 230 years.

    The House passed HB 3539 to require employers to allow employees to use vacation or other available leave for religious observance and to allow employees to wear religious clothing, take time off for a holy day, or take time off for religious observance, if doing so does not impose an “undue hardship” on the employer. Pretty common sense. This bill passed the House last week with 24 Democratic votes and 14 Republican votes.

    As you noted, the House also passed HB 2893 to prohibit employers from requiring workers' attendance at meetings or subjecting them to communications for the purpose of promoting political or religious views. Also very common sense. This bill passed with 31 Democratic votes and zero Republican votes.

    Both are pending in the Senate. I think these bills strike a good balance -- enabling religious free exercise while prohibiting proselytizing by employers. Sounds like a very Democratic and Constitutional balance to me.

    Thanks for the dialogue.

  • Oregon Bill (unverified)
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    Front page article in the New York Times today on how our Justice Department - currently run by the strikingly incompetent, but pious, Alberto Gonzales - has shifted resources towards defending the "right" of religious Americans to bash gays and women, and send home religious literature with schoolchildren...

    Justice Dept. Reshapes Its Civil Rights Mission, By NEIL A. LEWIS http://www.nytimes.com/

    Restricting health care options for women, reducing civil protections and promoting hiring discrimination against gays and lesbians, dumbing down science education in our public schools, and in general contributing to societal ignorance, all based on utterly unsupported tales and fables with a typically violent, misogynist, homophobic bent - is this really the "religious free exercise" we'd like to enable and protect?

    OK - I'll definitely bring my pirate sword to work!

  • PBD (unverified)
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    I worked for a company in rural Oregon in the late 90s/early 2000s where the employer's mission statement explicitly stated that the owners were guided by their conviction in having been saved by the big JC and by their reliance on Biblical principles. And, completely against my own interpretation of federal law, I was asked during my interview about my reaction to that statement. I subsequently saw this bias played out again and again, from prayers at the company holiday party, to subtle barbs at the sole Jewish salesperson, to the CEO's displeasure at a customer newsletter article I published (in conjunction with an Orlando trade show) on a Disney World theme, because he objected to Disney's same-sex partner benefits stance.

    This poster's statement that "Oregon workers need protection from both the unwritten biases of their bosses and the unwanted spiritual advances of their colleagues" rings extremely true. It really is a half measure.

  • Michael (unverified)
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    Note to Jeff Alworth:

    France banned Muslim headscarves in public schools -- not everywhere. Just as many schools here have banned so-called gang colors. Not agreeing or disagreeing -- just rying to keep the facts straight. Thanks.

  • Oregon Bill (unverified)
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    What about a state law protecting "people of evidence" or "people of reality" or "people of Enlightenment values" or "people defending the U.S. Constitution" from all these "people of boneheaded, evidence-free prejudice" (i.e., "religious faith")?

    Sounds like there's a real need out here... (Yar!)

  • zilfondel (unverified)
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    I bet once you start seeing black Burkha-wearing waitresses at restaurants and grocery stores, we'll be seeing a different reaction to such bills...

  • Bill R. (unverified)
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    So how about "protecting" workers who find it contrary to religious observance to dispense certain legitiamate medications, or provide lawful medical procedures to patients? Do they get protection? Does the vegetarian get protection from having to serve meat in a restaurant? Does the Rastafarian get protection from prosecution for smoking marijuana?

    If my religious observance is to deny services to certain populations of people based on gender, or religion, or sexual orientation, or ethnicity, do I get protection for my religious observance? This is where it all leads. And if I belong to the flat earth religion, do I get all the rights of other religions. There is a religion in Mt. Shasta California that holds the mountain has aliens living inside. Do they get the same recognition as any other religious adherents?

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