Many states and cities have enacted laws prohibiting employment discrimination on the basis of sexual orientation, and Congress is considering enacting similar legislation – the Employment Nondiscrimination Act (ENDA). The law enjoys wide support in Congress and President Obama has indicated that he would sign the bill into law. On the other hand, all persons, including employers and employees, have the right to freedom of religion, and their religion may regard homosexuality as a sin. How far may the government go in preventing employers or co-workers from discriminating against employees on the basis of sexual orientation without trampling on the employer's and co-workers' rights to freedom of religion and freedom of expression?
In our private lives we have the right to select our friends and associates using any criteria that we choose – that is one aspect of the "Right to Privacy." However, when we open up a business to the public, the government has the power to regulate that business in the public interest. As the owners or operators of a business we may not sell dangerous products, maintain unsafe working conditions for our employees, and, for the last 45 years, it has been against the law to discriminate against patrons or employees on the basis of race, gender, and religion. A little over a decade ago we added "disability" to the list of characteristics that may not be the basis of discrimination, and when ENDA is enacted businesses will not be permitted to discriminate on the basis of sexual orientation.
Most people agree with the general principle that a person should not be discriminated against in the workplace or the marketplace simply because the person is gay or lesbian. Furthermore, there is no doubt that it is constitutional to prohibit employers from discriminating on the basis of sexual orientation, even though the employer may have religious objections to homosexuality. Federal and state laws prohibit discrimination on the basis of religion, even though many employers may have religious objections to a particular employee's religion or lack of religion.
However, there are some close and difficult cases that arise in this area primarily because of the right to freedom of expression. Under the First Amendment people have the right to express themselves and the government is not supposed to suppress the expression of particular views simply because the government disagrees with the opinion expressed by the individual. On the other hand, employers are not subject to constitutional limitations and are free to terminate the employment of their workers for any reason or for no reason, at least in the absence of a union contract or other form of job protection.
Assume for the sake of argument that you are an employer and that one of your workers makes discriminatory comments against blacks or women or gays or disabled people that are harmful to employee morale. Even if there were no civil rights laws prohibiting employment discrimination you would be perfectly justified in suspending or firing the employee. Under the civil rights laws the employer is required to address the problem – the employer may not permit its employees to harrass or create a hostile work environment for other workers.
In short, hate speech that occurs in public is constitutionally protected unless it is closely linked to violence or the threat of violence (threats, fighting words, incitement to riot). However, when hate speech occurs at work employers may (and under the civil rights laws must) act to protect other workers from harrassment. Hence the difficulty – civil rights laws punish speech that occurs in the workplace that could not be punished outside the workplace.
Religious speech is considered to have "high value" under the Constitution – it receives as much protection as political speech does. May the law punish a supervisor for proselytizing at work? For conducting prayer at the start of the work day? For repeatedly and insistently inviting other employees to join their religion? What if the supervisor harshly criticizes a subordinate's religion or makes disparaging remarks about it at every opportunity? The problem becomes even more difficult when these knids of religious views are expressed by a co-worker and the employer fails or refuses to put a halt to it. In those kinds of situations employers have legal responsibilites to both employees. The law requires employers to accommodate an employee's religious practices unless it would create an "undue hardship" to the employer, but employers also have the responsibility not to allow co-workers to create a "hostile environment" for people of other religions or other beliefs. At some point speech alone – even religiously motivated speech – may create a hostile work environment that other employees should not have to put up with and that employers have to take steps to prevent. These are matters of degree – there are no bright line tests.
{ 4 comments… read them below or add one }
Religious harassment is still harassment. We need to respect each others' religion or belief system or personal space. I think that a person's right to not be harassed obvsly trumps so-called free speech, esp if it is coming from a superior.
And conservative values are what? Torture, fear, bullying? Just what are you FOR?
I miss real conservatives–Dirkson, Scott, and Goldwater. Nowadays you are a pack of sociopaths.
I'm sorry. I directed a response to a commenter rather than the post.
When I was an employer I only had to fire people because of their incompetence or laziness. I like to think that I would have done so because of overbearing proselytizing for religion and/or politics. I ain't paying for that.
btw, I was terrible at hiring. It's a crap-shoot at any rate. As far as vendors and service people– i pulled the door down on a truck driver, and left him in his trailer for a short while after he said the N-word. He had been forewarned. Well, that was race.
As for sexuality the truck driver's substitute entertained the shop with a homophobic joke. Not a lot of laughter followed. I just said that it was funny, but my boyfriend would be offended.
It's difficult to run a business and we should be mindful of putting employers in "can't win" situations – where they face a lawsuit for harrassment if they don't intervene when one co-worker abuses another, but where they face a lawsuit for failing to accommodate religion when they do intervene. We may disagree about where to draw the line, but at a minimum the law must be clear so that employers know how to respond in these situations. It would also be nice if the law gave employers some discretion – room to maneuver the myriad kinds of human interactions that arise in the workplace.