VITAL SIGNSrnRELIGIONrnReligion and thernWorkplacernby Charles R. Helmsrnand Jeffs. TurnerrnHarassed any hirelings lately? Don’trnthink so? Let’s see. Do you referrnto the office Christmas party as arn”Christmas party”? Sing carols and sayrngrace? Invite your employees to join yournfor church? Wear “precious feet” onrnyour lapels and plead with subordinatesrnnot to abort? Lead morning prayers overrnthe P.A. system? The Equal EmploymentrnOpportunity Commission and federalrncourts want to nail your hide to thernwall, and you just had a narrow escape—rnfor now. Moreover, the just-concludedrnstruggle between the EEOC andrnCongress raises the question of whornreally rules Washington.rnAt issue is whether the 1964 CivilrnRights Act can be used by the EEOCrnagainst the Eirst Amendment guaranteernof free exercise of religion so as to eradicaternreligious expression in the workplace.rnThe snake in the grass is a seeminglyrninnocuous document in the FederalrnRegister, the publication in whichrnthe new rules annually proposed byrnLeviathan first appear. The EEOC publishedrnits proposed “Guidelines on HarassmentrnBased on Race, Color, Religion,rnGender, National Origin, Age, orrnDisability” on October 1, 1993. Thernguidelines set out the EEOC’s standardsrnfor illegal harassment in the workplacernand derive from Title VII of the CivilrnRights Act, which prohibits an employerrnfrom discriminating against an employeernin his compensation or terms ofrnemployment on account of, inter alia, hisrnreligion.rnAlthough EEOC guidelines arc notrnbinding, they obviously reflect the viewsrnof the EEOC, which, incidentally, is alsorncharged with enforcing antidiscriminationrnstatutes. The EEOC respondsrnto complaints alleging religious harassmentrnby bringing lawsuits against selectedrnemployers, who must submit to itsrnwill or spend thousands of after-tax dollarsrndefending themselves. Even withoutrnnew guidelines, some 800 complaints allegingrnreligious harassment were filedrnwith the EEOC m 1993.rnAnyone looking to the federal courtsrnto provide a bulwark against EEOC activismrnwill be disappointed. On instructionsrnfrom the United States SupremernCourt, federal court opinions give “greatrndeference” to EEOC interpretations ofrnTitle VII, and the interpretations therebyrnpass into law. Thus, rules written andrnenforced by unelected bureaucrats arernblessed by unelected judges, whilernCongress, having of course exemptedrnitself from compliance with Title VII,rnsits on the sidelines. We lose anotherrnfreedom.rnThe proposed guidelines reiterate thatrnharassment on the basis of religion is a violationrnof Title VII. But they definern”harassment” as conduct that “denigratesrnor shows hostility or aversion” towardrnan individual because of his religionrnand that also creates a hostile or offensivernwork environment, interferes with another’srnwork performance, or “adverselyrnaffects” another’s “employment opportunities.”rnVaguer standards could notrnbe devised. What are a “hostile work environment”rnor “aversion” toward another’srnbeliefs other than an invitation forrncourts to legislate? Innumerable lawsuits,rnand the curtailment of religiousrnexpression in the workplace by courtsrnand nervous employers, would surelyrnhave followed.rnIronically, federal courts already interpretrnTitle VII broadly without suchrnguidelines. In its justly reviled decisionrnin Effison v. Brady (1991), the Ninth CircuitrnCourt of Appeals—which covers allrnstates in the Pacific time zone plus Arizona,rnIdaho, and Montana—went farthest.rnThe plaintiff, a woman, becamernfrightened after the defendant, a fellowrnIRS employee, importuned her repeatedlyrnfor dates and sent her two ramblingrnlove letters. In finding for the plaintiff,rnthe court ruled that in determiningrnwhether she was harassed with sufficientrnseverity to prevail against her employer, itrnwould henceforth focus on the perspectivernof a “reasonable woman” similarlyrnsituated. That is, the subjective perspectivernof the alleged victim, ratherrnthan the more objective perspective of arnreasonable person of unspecified gender,rnwas what counted. In fact, the courtrnadmitted that its new standard classifiedrnconduct as harassment “even when harassersrndo not realize that their conductrncreates a hostile working environment.”rnThanks for the clarification. The courtrnrecommended that employers “educate”rnand “sensitize” their employees in genderrnseminars to avoid future liabilityrnunder Title VII.rnTo date, the Ninth Circuit is the onlyrnfederal appellate court to adopt a “reasonablernwoman” standard for victimhood.rnOther courts opt for the morernobjective, “reasonable person” standard,rnor even require that the plaintiff provernactual psychological injury.rnGuess which standard the EEOCrnprefers? If the EEOC had gotten its way,rnthe subjective FAlison standard would,rnthrough court-blessed EEOC guidelines,rnhave become the law of the land for religiousrnexpression in the workplace. Arncourt decision granting two standardsrnfor the two sexes could have been usedrnto create hundreds of standards forrnAmerica’s hundreds of creeds. Would arn”reasonable” granola-erunching enviroanimistrnfeel “intimidated” or “harassed”rnby voluntary morning prayers led by hisrnCatholic boss? Would an Evangelicalrnwho privately remonstrated an adulterousrnsubordinate be creating a hostilernwork environment? Would employersrnhave to “educate” and “sensitize” theirrnemployees to eliminate disparaging referencesrnto tree-worshiping, the goddessrnGaia, Shirley MacLaine, or Dionne Warwick’srnpsychic advisors? The litigationrnwould not have ceased before religiousrnexpression was confined within the fourrnwalls of churches and private homes.rnLike most federal rules, the guidelinesrnwere unnecessary—except perhaps forrnfederal employees who, unlike the rest ofrnus, cannot easily be fired for boorish behavior.rnThe harassment targeted by thernguidelines could easily be handled byrnstate legislation (to the extent not preemptedrnby the feds) or by private tortrnclaims for wrongful termination or in-rn42/CHRONICLESrnrnrn