Harassed any hirelings lately? Don’t think so? Let’s see. Do you refer to the office Christmas party as a “Christmas party”? Sing carols and say grace? Invite your employees to join you for church? Wear “precious feet” on your lapels and plead with subordinates not to abort? Lead morning prayers over the P.A. system? The Equal Employment Opportunity Commission and federal courts want to nail your hide to the wall, and you just had a narrow escape—for now. Moreover, the just-concluded struggle between the EEOC and Congress raises the question of who really rules Washington.

At issue is whether the 1964 Civil Rights Act can be used by the EEOC against the First Amendment guarantee of free exercise of religion so as to eradicate religious expression in the workplace. The snake in the grass is a seemingly innocuous document in the Federal Register, the publication in which the new rules annually proposed by Leviathan first appear. The EEOC published its proposed “Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age, or Disability” on October 1, 1993. The guidelines set out the EEOC’s standards for illegal harassment in the workplace and derive from Title VII of the Civil Rights Act, which prohibits an employer from discriminating against an employee in his compensation or terms of employment on account of, inter alia, his religion.

Although EEOC guidelines arc not binding, they obviously reflect the views of the EEOC, which, incidentally, is also charged with enforcing antidiscrimination statutes. The EEOC responds to complaints alleging religious harassment by bringing lawsuits against selected employers, who must submit to its will or spend thousands of after-tax dollars defending themselves. Even without new guidelines, some 800 complaints alleging religious harassment were filed with the EEOC in 1993.

Anyone looking to the federal courts to provide a bulwark against EEOC activism will be disappointed. On instructions from the United States Supreme Court, federal court opinions give “great deference” to EEOC interpretations of Title VII, and the interpretations thereby pass into law. Thus, rules written and enforced by unelected bureaucrats are blessed by unelected judges, while Congress, having of course exempted itself from compliance with Title VII, sits on the sidelines. We lose another freedom.

The proposed guidelines reiterate that harassment on the basis of religion is a violation of Title VII. But they define “harassment” as conduct that “denigrates or shows hostility or aversion” toward an individual because of his religion and that also creates a hostile or offensive work environment, interferes with another’s work performance, or “adversely affects” another’s “employment opportunities.” Vaguer standards could not be devised. What are a “hostile work environment” or “aversion” toward another’s beliefs other than an invitation for courts to legislate? Innumerable lawsuits, and the curtailment of religious expression in the workplace by courts and nervous employers, would surely have followed.

Ironically, federal courts already interpret Title VII broadly without such guidelines. In its justly reviled decision in Ellison v. Brady (1991), the Ninth Circuit Court of Appeals—which covers all states in the Pacific time zone plus Arizona, Idaho, and Montana—went farthest. The plaintiff, a woman, became frightened after the defendant, a fellow IRS employee, importuned her repeatedly for dates and sent her two rambling love letters. In finding for the plaintiff, the court ruled that in determining whether she was harassed with sufficient severity to prevail against her employer, it would henceforth focus on the perspective of a “reasonable woman” similarly situated. That is, the subjective perspective of the alleged victim, rather than the more objective perspective of a reasonable person of unspecified gender, was what counted. In fact, the court admitted that its new standard classified conduct as harassment “even when harassers do not realize that their conduct creates a hostile working environment.” Thanks for the clarification. The court recommended that employers “educate” and “sensitize” their employees in gender seminars to avoid future liability under Title VII.

To date, the Ninth Circuit is the only federal appellate court to adopt a “reasonable woman” standard for victimhood. Other courts opt for the more objective, “reasonable person” standard, or even require that the plaintiff prove actual psychological injury.

Guess which standard the EEOC prefers? If the EEOC had gotten its way, the subjective Ellison standard would, through court-blessed EEOC guidelines, have become the law of the land for religious expression in the workplace. A court decision granting two standards for the two sexes could have been used to create hundreds of standards for America’s hundreds of creeds. Would a “reasonable” granola-crunching enviroanimist feel “intimidated” or “harassed” by voluntary morning prayers led by his Catholic boss? Would an Evangelical who privately remonstrated an adulterous subordinate be creating a hostile work environment? Would employers have to “educate” and “sensitize” their employees to eliminate disparaging references to tree-worshiping, the goddess Gaia, Shirley MacLaine, or Dionne Warwick’s psychic advisors? The litigation would not have ceased before religious expression was confined within the four walls of churches and private homes.

Like most federal rules, the guidelines were unnecessary—except perhaps for federal employees who, unlike the rest of us, cannot easily be fired for boorish behavior. The harassment targeted by the guidelines could easily be handled by state legislation (to the extent not preempted by the feds) or by private tort claims for wrongful termination or intentional infliction of emotional distress. But then, why punish harassment alone when you can curtail Christianity at the same time?

Congress, prodded by over 100,000 wrathful letters and calls, eventually lifted its snout from the public trough long enough to turn a sleepy eye on the EEOC. On May 26, 1994, in House Resolution 446, some 100 members of Congress expressed their “sense” that the new definition of harassment “may result in the infringement of religious liberty.” On June 7, the Senate passed a similar resolution, S. 219, criticizing the EEOC for expanding the definition of religious harassment beyond current standards. Of course, neither resolution was legally binding.

In testimony before Congress on June 6, EEOC Chairman Tony E. Gallegos, a Reagan-Bush appointee, responded that the proposed guidelines would only prohibit religious harassment, not religious expression. They would not prevent the display of a crucifix, the wearing of a yarmulke, or the placement of a Bible on a desk, he claimed. Gallegos’ well-meaning naiveté would be precious were it not so dangerous. (Recall, on its 30th anniversary, the congressional debate in 1964 over the Civil Rights Act, when Senator Hubert Humphrey repeatedly assured suspicious “hicks” from the Heartland that passage of the act would never, ever lead to forced busing.)

On June 27, a dissatisfied House upped the ante when it adopted, by a vote of 366 to 37, an amendment to the EEOC appropriations bill that blocks funding to implement the guidelines. On July 21, debate shifted to the Senate, where three Clinton administration nominees to the EEOC declined to comment on whether they agreed with the proposed guidelines. The Senate, led by an obviously annoyed Howell Heflin of Alabama and Hank Brown of Colorado, reacted on July 22 by approving an amendment to delete religion from the EEOC’s proposal. The irony is that, compared to the EEOC’s radical estrangement from Middle American piety, the posturing of our insular and omnicompetent Congress seems virtuous.

In mid-September, a spokesman for the EEOC told us that the agency had no timetable for finalizing the guidelines and that the guidelines as originally drafted were still under consideration. However, one senator—probably a Republican, we are told—then exercised his privilege of holding up confirmation for not only the three EEOC nominees, but for all nominees before the Labor and Human Resources Committee. Although no one officially knows why the privilege was invoked or by whom, the conclusion drawn by some senate staffers is that the unknown senator wanted to bring the EEOC to heel.

Faced with still more delay in filling three of the five slots on the EEOC Commission, the remaining commissioners finally caved in and voted unanimously to withdraw the guidelines on September 20. The way was now clear for the Clinton nominees, which means that the commission will now be controlled by persons presumed to favor the guidelines. Congressmen come and go (eventually), but the EEOC and federal court opinions are with us always. Oremus.