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The intersection of our personal and professional lives is seldom more complicated than in the area of religion. The freedom to exercise one’s religion is a fundamental tenet of our democratic government. Inevitably, the exercise of this freedom in daily life will overlap with work. An employee may, for example, wish to display a religious passage in a workspace, read the Bible or Koran at work or may hold religious discussions with co-workers, as another employee might talk about the Astros or the Rockets. The issue of religion in the workplace is not an easy one for employers to manage. The regulation of religious expression in the workplace almost invites litigation — an employee who is prohibited from engaging in religious expression in the workplace or limited in doing so may bring suit for religious discrimination or infringement of First Amendment rights. On the other hand, if an employer liberally permits religious expression, an employer may open itself to a religious harassment suit or a suit based on the establishment clause of the First Amendment, where the employer is a public employer. In spite of such tensions facing employers, recent developments in sexual harassment law have begun to provide some legal guidance for religious harassment in the workplace. RELIGIOUS HARASSMENT The prohibition against religious discrimination that is contained in Title VII also covers religious harassment. What constitutes religious harassment, however, is a slippery issue, in part due to the restriction workplace regulations may have on an individual’s religious liberties. Consequently, there exists a general dearth of legal guidance in this area. The Equal Employment Opportunity Commission (EEOC) promulgated guidelines on religious harassment in the early 1990s that applied to all employers, but retracted the guidelines under pressure from religious groups who complained that they were too restrictive. The EEOC guidelines extended existing sexual harassment guidelines to other forms of discrimination, including religion. Thus, the guidelines incorporated a “reasonable person” standard. Religious groups alleged that under this standard, employees could have engaged in religious harassment where they wore a crucifix or Star of David or kept a Bible or other religious symbol on their desk. These groups also expressed resistance to the guidelines, fearing that employers might attempt to limit their liability for religious harassment by adopting overly restrictive rules on employee behavior that could violate First Amendment rights. Interestingly, scholars have begun to analyze similar issues in the sexual harassment context, namely whether overly restrictive rules concerning workplace conduct in an attempt to avoid sexual harassment liability violate employees’ First Amendment free speech rights. The federal government released “Guidelines on Religious Exercise and Expression in the Federal Workplace,” 33 Weekly Comp. Pres. Doc. 1246 (Aug. 18, 1997) in 1997 discussing religious expression in the federal workplace. The government’s standards for regulation of religious expression in the workplace permit restrictions on such expression only where “the employee’s interest in the expression is outweighed by the government’s interest in the efficient provision of public services.” Also, if an agency permits nonreligious speech that has a comparable effect on the efficiency of the workplace, then it must allow similar religious speech. OUTSIDE GUIDANCE With regard to potential harassment, the guidelines note that an agency may have a legal obligation to restrict forms of speech that intrude unduly on the legitimate rights of others. Noting that several forms of expression generally do not amount to harassment — keeping a Bible or Koran at a private desk to read during breaks; mutually discussing religious views with co-workers in informal settings such as hallways and cafeterias; and wearing religious medallions over clothes — the guidelines that highlight speech that may qualify as religious harassment tends to be of the nature of religious intimidation, ridicule or insult. To determine what constitutes religious harassment, courts have turned to sexual harassment jurisprudence for guidance, recognizing that religious harassment may take the same forms as sexual harassment. Thus, an employee may state a claim for hostile environment or quid pro quo religious harassment. As shown in the 1997 7th U.S. Circuit Court of Appeals case Venters v. City of Delphi, it also recognized that quid pro quo and hostile environment harassment “serve to describe differing manifestations of religious harassment as well [as sexual harassment].” Quid pro quo religious harassment may take the form of a supervisor requiring an employee to engage in unwelcome religious activity in order to retain a job benefit. For example, a supervisor may not require attendance at prayer meetings as a condition of employment. In one case, an employee alleged a claim for religious harassment based in part upon her supervisor’s alleged statement that she could either choose to live her life God’s way or Satan’s way and could not continue to work for him if she chose the latter. Hostile environment religious harassment may occur when an individual makes disparaging remarks about an employee’s religious beliefs. For example, in Hafford v. Seidner, a 1999 case out of the 6th Circuit, an employee was allegedly subject to racial slurs and physical threats, and alleged co-workers and supervisors criticized and ridiculed the tenets of his Muslim faith. While the court held that the alleged incidents were not severe or pervasive enough to rise to the level of harassment, the court did recognize the employee’s racial harassment claim and noted that the racial animus of the employee’s co-workers was augmented by their bias against the employee’s religion. So even where religious harassment is not actionable on its own, it may bolster a plaintiff’s evidence on other discrimination claims. As with sexual harassment, the benchmark determination of whether certain conduct is actionable religious harassment is whether the harassment has resulted in an adverse job action against the employee. Thus, in 1998 in Sattar v. Motorola, the 7th Circuit rejected a claim of a formerly Muslim engineer whose supervisor, a devout Muslim who allegedly frequently pressured the engineer to return to the Muslim faith, refused several of the engineer’s transfer requests and did not promote him, telling him that it would improve his standing if he returned to Islam. The engineer was eventually transferred to another department and was terminated some months later. In response to the engineer’s allegations that the termination was a result of religious harassment, the court noted the absence of any evidence that the allegedly harassing supervisor had a direct role in the decision to terminate the employee. Accordingly, the court dismissed the employee’s suit. EMPLOYER’S LIABILITY When assessing employer liability for religious harassment, courts have once again turned to sexual harassment jurisprudence for guidance. In 1998, the standard for sexual harassment liability for harassment by supervisors changed when the U.S. Supreme Court decided Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. Faragher and Ellerth established that an employer will be automatically liable for actionable sexual harassment by a supervisor that culminates in a tangible employment action. Employers may rely on an affirmative defense to claims of harassment by a supervisor when an employee has not suffered a tangible job detriment: (1) if the employer has taken reasonable care to prevent harassment (such as having a written policy and training); and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered. After Faragher and Ellerth, it remains to be seen whether courts will adopt this same standard of liability in other harassment cases. Indeed, many courts, as well as the EEOC in its “Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors,” have embraced the Faragher/ Ellerth standard in the context of other types of harassment. Recently in Hafford v. Seidner, the 6th U.S. Circuit Court of Appeals recognized that the Faragher/ Ellerth analysis applies in the context of all types of harassment, including religious harassment. The holding of Hafford is undermined somewhat by the fact that the court rejected the plaintiff’s religious harassment claim as a stand-alone claim, but recognized that it did bolster his racial harassment claim, permitting the plaintiff to proceed to trial on his claim of hostile work environment based on race. However, it is reasonable to predict that as the Faragher/ Ellerth jurisprudence develops, it will expand to encompass more definitive religious harassment by a supervisor. The standard for employer liability for a co-worker or other third party’s sexual harassment has remained unchanged following Faragher and Ellerth — an employer may be liable for such harassment if it had actual (e.g. an employee complains) or constructive (e.g. the harassment is so blatant or pervasive that an employer should have known about it) knowledge of the abusive working environment and has failed to take actions to end the harassment. This standard has been recognized in the area of religious harassment as well, in cases including Amin v. Quad/Graphics Inc., 929 F.Supp. 73, 81-82 (N.D.N.Y. 1996); Sarin v. Raytheon, 905 F.Supp. 49, 52 (D.Mass. 1995); and Turner v. Barr, 811 F.Supp. 1, 2 (D.D.C. 1993). Finally, public employers need to be aware that an employee’s religious harassment suit may be accompanied by claims of First Amendment violations. In Venters, the plaintiff also alleged that the police chief’s conduct — which allegedly included frequent comments about the plaintiff’s “sinful life” and her “salvation” and giving the plaintiff religious materials and a Bible — violated the establishment clause and the free exercise clause of the First Amendment. The 7th Circuit in Venter remanded the case so that the lower court could consider the plaintiff’s claims in these areas. Although the 7th Circuit acknowledged the police chief also had First Amendment rights, the court found no evidence that the chief was not permitted to discuss his religious beliefs or that his First Amendment rights were otherwise infringed.

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