• Key point. Most states prohibit discrimination by employers against employees on the basis of an employee’s religion (religious organizations generally are exempted from such a ban). Some states interpret religious discrimination to include religious harassment.
The Oregon Supreme Court reversed a state agency’s conclusion that a business owner who “witnessed” to an employee and invited him to church was guilty of “religious harassment.” An evangelical Christian (the employer) owned his own painting business. He believes that he has a duty to tell others, especially nonbelievers, about God and sinful conduct. This includes informing others that on the basis of their lifestyles they are sinners. The employer hired another worker. He invited the worker to church at least twice each week, told the worker that he was a sinner and was going to hell because he lived with his girlfriend and did not go to church, and said that a person had to be a good Christian to be a good painter. The employer also witnessed to members of the worker’s family and to his girlfriend. The worker was later fired for poor performance, and he filed a complaint with a state civil rights agency alleging that his former employer had committed an unlawful employment practice by discriminating against him on the basis of religion. Specifically, he alleged that his former employer’s “religious advances” constituted religious harassment. Oregon law specifies that it is unlawful “for an employer, because of an individual’s religion, to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” The courts have ruled that religious harassment is a form of religious discrimination. Religious harassment is defined as “making religious advances when such conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.”
The state civil rights agency ruled that the employer had committed religious harassment as a result of his witnessing to the worker and fined him $3,000. The agency concluded that the employer’s religious conduct was “sufficiently pervasive to alter the conditions or the employee’s working environment, and had the effect of creating an intimidating and offensive working environment.” The employer appealed this ruling, insisting that his constitutional rights to religious freedom and free speech were violated by the agency’s ruling. A state appeals court acknowledged that the agency’s ruling (finding the employer guilty of religious harassment for witnessing to an employee) burdened the free exercise of his religious beliefs, but it noted that the exercise of religious beliefs can be burdened under the state constitution by a government action so long as it is the “least restrictive means” of advancing an “overriding government interest.” The court concluded that the agency’s ruling did not satisfy this test. It observed that “Oregon’s guarantees of religious freedom are intended to permit minorities to engage in religious practices that the majority might find objectionable. Those guarantees would be meaningless if religious conduct could be prohibited whenever a reasonable person would consider that conduct inappropriate.” The state appealed this ruling to the supreme court, which upheld the appeals court’s decision in favor of the worker.
The state supreme court concluded that the protection of religion in the Oregon Constitution is broader than that contained in the first amendment to the United States Constitution. Further, the court pointed out that there was no evidence that the employer knew his behavior created an intimidating, hostile, or offensive working environment, and that “the government may not constitutionally impose sanctions on an employer for engaging in a religious practice without knowledge that the practice [has such an effect]. If the rule were otherwise, fear of unwarranted government punishment would stifle or make insecure the employer’s enjoyment and exercise of religion, seriously eroding the very values that the constitution expressly exempts from government control.” Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. App. 1995). [ The Civil Rights Act of 1964, The Establishment Clause, The Right to Witness]
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