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News & trends
April 2008 | Volume 44, Issue 4
'Free expression' can come at high cost for some workers
Carmel Sileo, Associate Editor
Jeremy Hall, a 23-year-old Army specialist and an atheist, recently
sued the Department of Defense and his commanding officer, saying
they violated his constitutional rights. While stationed in Iraq,
Hall held meetings with other atheists and refused to say grace in
the mess hall; in retaliation, he says, he was turned down for a promotion
and his major threatened to block his reenlistment. The lawsuit is
being brought by Hall and the Military Religious Freedom Foundation
(MRFF), based in Albuquerque, New Mexico. (Hall v. Welborn,
No. 08-CV-2098 JWL/DJW (D. Kan. filed Mar. 5, 2008.)
Hall’s lawsuit is the first to directly challenge what Mikey
Weinstein, president and founder of the MRFF, calls a “pervasive
practice” of coercive proselytizing in the military. “But
we have many others coming right behind it,” he added.
The United States has more religions than any other country. Often,
this variety is seen as a blessing. But when those beliefs enter the
workplace, hackles—and lawsuits—can rise up.
Richard Peterson, a devout evangelical Christian, was a 21-year employee
at Hewlett-Packard in Boise, Idaho. To promote its antidiscrimination
policy, the company put up posters celebrating diversity that featured
a person who was identified as gay. Peterson responded by placing
large placards containing anti-homosexual Biblical verses around his
cubicle, where they were visible to employees and customers.
Concerned that some employees might be offended by the placards,
Peterson’s supervisor removed them. Peterson objected, and after
several unsuccessful attempts at mediation, the company fired
him. He then sued for religious discrimination.
The Ninth Circuit found there were no grounds for the discrimination
claim, concluding that allowing Peterson to keep his signs up “would
have forced the employer to exclude sexual orientation from its workplace
diversity program, infringing upon the employer’s right to promote
diversity and encourage tolerance and good will among its workforce.”
(Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir.
2004).)
In Indiana, James Dawson, also a devout Christian, was subjected
to ridicule and pranks by his non-Christian coworkers at a trailer-manufacturing
mill. Dawson said they drew Satanic symbols on his workspace, verbally
derided his beliefs, and tampered with his work tools.
After Dawson was fired, he filed a claim of religious harassment
against his employer. The court found that “several of the hostile
incidents cited by Dawson [were] patently or arguably tied to his
religion.” (Dawson v. Monaco Coach Corp., No. 3:02-CV-830
(N.D. Ind. Nov. 9, 2005) (unpublished).)
For the most part, courts have drawn a steady line between expression
and harassment. For example, an Iowa court found that Yellow Book
employee Tammy Powell could not claim religious harassment simply
because her coworker displayed religious symbols in her cubicle and
talked about her religion, saying that “an employer . . . has
no legal obligation to suppress any and all religious expression merely
because it annoys a single employee.” (Powell v. Yellow
Book, 445 F.3d 1074 (8th Cir. 2006).) But in California, a state
appellate court found that a company had the right to fire an employee
who persisted in aggressively proselytizing to her coworkers. (Ng
v. Jacobs Engineering Grp., No. B185838 (Cal. App. Oct. 16, 2006)
(unpublished).)
A rising trend
The Equal Employment Opportunity Commission has reported a rise in
religious discrimination cases. The sharpest spike came in 2002, which
saw a 20 percent increase. In 2006, there was another 10 percent jump.
Gregg Rosenberg, an employment lawyer in Houston, said he’s
noticed an uptick in employer-sponsored religious activity that could
well be considered discriminatory—such as a Christian business
owner holding weekly prayer sessions where employee attendance is
mandatory (and unpaid). The twist, Rosenberg said, is that the employers
are not organizing these activities to punish or harass their employees.
“In fact, they present it as something like a spa membership—they
say it’s a great opportunity, it enriches the soul,” he
said. “And maybe for some Christian employees, it does. But
that doesn’t help the employee who’s a Hindu, or Jewish,
or an atheist.”
Religious expression is protected by Title VII of the Civil Rights
Act, which mandates “reasonable accommodation” of workers’
religious beliefs as long as the accommodation doesn’t cause
“undue hardship” to the employer. In recent years, courts
have deemed that allowing Muslim workers to wear head scarves or Sikh
police officers to wear turbans with their police uniforms, and letting
employees pray or display religious symbols in their workspaces, were
not undue hardships.
To bolster Title VII, Congress is reconsidering passage of a bill
proposed in 2005, the Workplace Religious Freedom Act (WRFA). The
act would change “undue hardship” to “significant
difficulty or expense,” language similar to that in the Americans
with Disabilities Act. WRFA would also require that a reasonable accommodation
“remove the conflict between employment requirements and the
religious observance or practice of the employee.” And it would
require employers to allow “practices that may have a temporary
or tangential impact on the ability to perform job functions”
if they are related to religious belief.
But far from settling the controversy, WRFA has stirred up its own
hornet’s nest, pitting civil rights advocates against groups
that advocate for religious freedom. WRFA’s opponents include
the ACLU, Planned Parenthood, the National Women’s Law Center,
and the U.S. Chamber of Commerce; its proponents include the American
Jewish Council, the Church of Seventh-Day Adventists, and the Interfaith
Alliance.
“The intention of WRFA is lovely,” said Lori Lipman Brown,
director of the Secular Coalition for America, a Washington, D.C.-based
group that represents nontheistic Americans. “But some denominations
require their members to evangelize 24/7, and if you limit that, you’re
‘taking God away from them.’ They believe that ‘free
exercise’ means they get to tell their coworkers that they are
sinners and are going to hell. And indeed, for us it’s a very
big issue because the people most likely to be harangued are nonbelievers.
This is going to have a huge impact on the day-to-day workplace,”
she predicted.
The ACLU is even harsher, calling WRFA a “dangerous bill”
that will stand civil rights on its head.
“What’s most disturbing about WRFA is that if it passes
as is, it would be the first time that a civil rights law would be
used as a weapon rather than a shield,” said Chris Anders, legislative
director for the ACLU, in Washington, D.C. He explained that under
WRFA, courts would have to allow religious-discrimination claims that
were previously rejected. The ACLU has documented cases filed by nurses
who claim they suffered discrimination based on their religion because
they refused to participate in certain obstetrical procedures; similar
cases have been brought by pharmacists who would not fill birth-control
prescriptions and police officers who declined to protect workers
at abortion clinics.
“WRFA will give a big leg up to employees taking these positions,”
Anders said. He noted there is good reason that business groups oppose
the bill. “There are good employers out there who are going
far beyond what’s required by Title VII,” he said. “They
have their own voluntary nondiscrimination policies, and WRFA would
punish them.” For instance, he said, it’s doubtful that
Hewlett-Packard would have prevailed in its firing of Richard Peterson
under WRFA.
James Standish, director of legislative affairs for the Seventh-Day
Adventists, acknowledged the ACLU’s fears but said they were
misplaced.
“The issue of access to health care, and of gay and lesbian
rights—that certainly resonates,” said Standish. “But
the change proposed by WRFA is very modest in these areas.”
Standish noted that courts threw out the claims the ACLU cited. “I
think the evidence makes it clear that there won’t be a severe
impact,” he said.
Standish said it is time for an overhaul of Title VII because its
language is too broad. “It begs two questions,” he said.
“One, what is ‘reasonable accommodation’? Second,
it does not define ‘undue hardship.’ Right now, courts
have defined that as anything above ‘de minimis.’”
Because of this, he said, “the law essentially gives employers
two bites at the apple. All we are saying is that if you are going
to say someone’s religious beliefs are disrupting your workplace,
you better have a very strong case.”
Rosenberg said WRFA may muddy these waters further by producing conflicting
court decisions in the first few years. “Decisions will be all
over the place,” he said. “As with anything new, there
will be lots of case-specific interpretation. Don’t be surprised
to see completely different rulings from the same set of facts—and
appellate courts are going to have to reconcile them somehow.
“Judges are going to have to decide what is free exercise:
Is it not working on Saturday, or is it not working in the same building
as women? It would almost be like having a whole act passed to encompass
just sexual harassment.”
If religious expression is tricky for civilian workplaces, the problem
is amplified when it involves one of the country’s largest employers:
the U.S. military.
“What happens in the military is very different from the civilian
workplace,” said Weinstein of the MRFF. He noted that civilian
workers can bring lawsuits against their employers, a remedy not available
to military personnel.
“This is the reason why the military has strict orders prohibiting
officers from selling Amway, or Mary Kay [cosmetics],” he said.
“Officers are not supposed to prey on their subordinates.”
But religion is treated differently, Weinstein said, because
so many senior officers share similar religious beliefs.
Some cases have alleged that the military’s hostility to minority
religions extends even unto death. Recently, the U.S. Department of
Veterans Affairs (VA) included the Wiccan pentacle on its list of
approved grave markers, ending a 10-year process that included legal
action launched by the widows of Wiccan servicemen.
The lawsuit was brought by Americans United for Separation of Church
and State on behalf of members of the Circle Sanctuary in Barneveld,
Wisconsin. In April 2007, as part of a settlement, the VA agreed to
add the symbol to the list.
Rev. Selena Fox, senior minister of the Circle Sanctuary, said, “The
pentacle quest was crucial, because it has led to a better understanding
of minority religions, and it has also shown that Wiccans will stand
up for their rights.”
Fox said Wiccan pentacles now grace the tombstones of servicemen
from several wars at military cemeteries, a tangible symbol of growing
tolerance.
“We have won acceptance,” she said. “It is now,
literally, etched in stone.”
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