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Moses came down from Mount Sinai bearing stone tablets with the Ten Commandments. The third of those commandments stated, “Thou shalt not take the name of the Lord thy God in vain.” Thousands of years later, the U.S. Congress passed the Civil Rights Act of 1964, which through Title VII prohibits workplace discrimination based on race, color, sex, national origin — and religion. The law has been interpreted to ban hostile work environments based on these protected categories. Employers now conduct training to prevent sexual and racial harassment. By this point, almost everyone grasps the problems with sexual and ethnic slurs at work. When it comes to religion, however, such sensitivities can be lacking. In particular, often employees will use the names of co-workers’ deities in a profane and sacrilegious way, sometimes without grasping how offensive this can be to those colleagues who worship the God being cursed. Employers and employees alike need to be more aware of this problem. Refraining from creating a religiously hostile work environment is not simply a matter of office courtesy. Under Title VII, if religiously offensive speech is allowed to persist to the point that it becomes severe or pervasive, it can create legal problems. CLEARLY OFFENSIVE As with all the commandments, theologians and more common folk have argued over the meaning of the Third Commandment. Indeed, we owe the word “gosh” to an effort by some to avoid saying “God,” although others might argue that even “gosh” runs afoul of Moses’ law. In this sense, the interpretive problem is not so different from trying to discern the boundaries of racist or sexist language. As with racist or sexist terms, however, some phrases leave little room for doubt. For example, for Christians the phrase “God d-n” or the use of the Lord’s name as an expletive — as in “Jesus Christ,” or even worse, “Jesus f-ing Christ” — would, under most believers’ judgments, violate the Third Commandment. Such expletives are clearly offensive to many. My question in this commentary is whether it is time not only for Christians and Jews to follow Moses’ proscription, but for nonbelievers as well, at least in the workplace. Let me clear up a few things at the outset. First, I am acutely aware that many, if not all, who profess belief in God or the saving power and divinity of Christ take those names in vain. That all of us fall short, however, does not excuse the offensiveness of such language in the workplace, any more than the use of the N-word would be justified by its occasional use in rap lyrics. Second, this commentary addresses such terms only in the workplace. Outside the workplace, the First Amendment protects even expression derogatory of religion. Third, I recognize that many people use such terms without deliberately meaning to cause offense. Yet, as is often the case, words can still offend regardless of the intent. Finally, I am not suggesting that any workplace behavior that violates the religious tenets of co-workers is unlawful or should be prohibited. Co-workers should be able to eat pork without “harassing” their Jewish or Muslim colleagues or drink alcohol without “harassing” their tee-totaling Baptist co-worker. What this commentary contends, however, is that, for both legal purposes and an employer’s respect for diversity, there is a big difference between having a drink in front of your Baptist co-worker and using the name of her God as an expletive. The first merely evidences a difference in value systems, whereas the second is a direct tarnishing of a fellow employee’s God. And such tarnishment can be very serious to co-workers: For those who believe in God, that belief can define who they are, sometimes even more so than race or gender. HOSTILE ENVIRONMENTS Although I believe that principles of diversity compel refraining from such religious slurs in the workplace, current legal precedent also suggests that the continued use of God’s name as an expletive in the workplace might constitute unlawful harassment. The law on workplace harassment is nothing new. Stretching back to Meritor Savings Bank v. Vinson (1986), the Supreme Court held that sexual harassment violated Title VII even in the absence of a direct financial injury. The Court held that such discrimination is unlawful as long as the conduct is “severe or pervasive.” Seven years later, in Harris v. Forklift Systems (1993), the Supreme Court further defined what constituted a hostile environment in violation of Title VII. The Court held that to be actionable, the environment must be one that a reasonable person would consider hostile and that the particular plaintiff also perceived as hostile. To violate Title VII, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment.” When considering purely verbal harassment, the Supreme Court has noted that “isolated incidents” do not rise to the level of severe or pervasive. Nevertheless, epithets, racial or sexual slurs, and offensive written material can all be elements of a harassment claim. As the U.S. Equal Employment Opportunity Commission explains, harassing conduct can be unlawful if it creates a work environment that is “intimidating, hostile, or offensive to reasonable people.” “Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling” and “ridicule or mockery, insults or put-downs, offensive objects or pictures.” Of course, whether the use of God’s name as an expletive constitutes workplace harassment depends upon the specific circumstances, just as it would with racially or sexually offensive language. Employers can avoid liability from such language, particularly if the harasser is not an immediate supervisor and the employer exercised reasonable care to prevent and correct any harassing behavior and the employee failed to take advantage of such preventative or corrective opportunities. The point, however, is not that the use of such language is always harassment, but rather that under certain circumstances, it could be — a fact to which I think most people are not currently sensitive enough. IN PRACTICE So how have these general Title VII principles worked out in practice? Thus far, religious swearing does not appear to have been a large part of the case law, though it has come up. For example, in one 2006 Title VII case out of Pennsylvania, the plaintiff alleged that her co-workers would curse (including saying “God d-n”) in her presence, allegedly to see her response. The plaintiff did not press this claim, however, and the federal district court granted summary judgment to the employer. It is easy, however, to envision the doctrinal application to religious swearing by examining suits involving race and gender harassment. Consider these examples, drawn partly from a Web site maintained by UCLA law professor Eugene Volokh: • A construction company paid the EEOC $1.3 million arising from its failure to react to offensive graffiti on portable toilets that included racial slurs and sexual images;

• The Montana Human Rights Commission found a hostile work environment based on off-color jokes and cartoons even when none of the jokes were said specifically to or referred to the complaining party; • The EEOC found harassment of a Japanese-American employee whose company used images of a samurai, kabuki, and sumo wrestling to refer to its Japanese competitors; • The Michigan Court of Appeals found sufficient grounds for a harassment claim by a Muslim employee to go to trial based in part upon co-workers referring to Muslim religious leaders as “toilet seats.” AN OBSCENITY Given the breadth of these findings, can there be much doubt that the repeated use of God’s name as an expletive in the workplace could be found to constitute harassment under existing law? If being forced to listen to racial slurs, epithets, or jokes creates an intimidating, hostile, or offensive workplace environment, wouldn’t an observant Jew or Christian feel the same way if forced to listen to the name of their God used continually as an obscenity? Indeed, if a jury can decide whether calling a religious cleric a “toilet seat” is harassment, how much worse would it have been to have used that cleric’s name as an expletive? Worse yet, what if the expletive was the name of the God the cleric served? Put even more graphically, if an employee used the phrase “Martin f-ing Luther King” would anyone seriously question that the use of the phrase was strong evidence of racial harassment? If the use of a man’s name in that manner is harassment, then how much more so would be the use of the name of God? There are some, of course, who may believe that existing workplace protections against harassment already go too far in restricting speech. Yet Title VII is what it is, and regardless of one’s personal views about its proper scope, its protections, and the workplace policies that spring from it, it should be applied uniformly to protect religion as well as race and gender. Others may resist changing longtime habits of speech. But if the last few decades have taught us anything, it is that persistent uses of offensive language can be dramatically reduced, even if not eliminated altogether. It is time for the EEOC, the employers, and the courts to finish the work that Moses left undone when he came down from Mount Sinai those many thousands of years ago. Thou shalt not take the Lord God’s name in vain … in the workplace.


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

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