Path: igor.rutgers.edu!farside.rutgers.edu!christian From: garysibio@delphi.com Newsgroups: soc.religion.christian Subject: Re: EEOC and Religion in the Workplace Message-ID: Date: 6 Jun 94 02:04:11 GMT Sender: hedrick@farside.rutgers.edu Organization: Delphi (info@delphi.com email, 800-695-4005 voice) Lines: 204 Approved: christian@aramis.rutgers.edu Here are the proposed EEOC regs: 1609.1 -- Harassment. (a) Harassment on the basis of race, color, religion, gender, n1 national origin, n2 age, or disability constitutes discrimination in the terms, conditions, and privileges of employment and, as such, violates title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (title VII); the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et seq. (ADEA); [*51269] the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (ADA); or the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq., as applicable. n1 These Guidelines cover sex-based harassment that is non-sexual in nature. Sexual harassment is covered by the Commission's Guidelines on Discrimination Because of Sex, 29 CFR 1604.11 (1992). n2Because they are more comprehensive, these Guidelines 1606.8 of the Commission's Guidelines on Discrimination Because of National Origin, 29 CFR 1606.8 (1992). (b)(1) Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his/her race, color, religion, gender, national origin, age, or disability, or that of his/her relatives, friends, or associates, and that: (i) Has the purpose or effect of creating an intimidating, hostile, or offensive work environment; (ii) Has the purpose or effect of unreasonably interfering with an individual's work performance; or (iii) Otherwise adversely affects an individual's employment opportunities. (2) Harassing conduct includes, but is not limited to, the following: (i) Epithets, slurs, negative stereotyping, or threatening, intimidating, or hostile acts, that relate to race, color, religion, gender, national origin, age, or disability; n3 and n3 This includes acts that purport to be "jokes" or "pranks," but that are hostile or demeaning with regard to race, color, religion, gender, national origin, age, or disability. Snell v. Suffolk County, 782 F.2d 1094, 1098 (2d Cir. 1986) (dressing Hispanic prisoner in straw hat with sign saying "spic" and "[plaintiff's] son") Rochon v. FBI, 691 F. Supp. 1548, 1551 n.1 (D.D.C. 1988) (characterizing as "pranks" such things as hate mail, threats of castration, use of defaced photographs-including one of plaintiff's children-and forging plaintiff's name to an insurance policy against death and dismemberment is almost as disturbing as the acts themselves). (ii) Written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age, or disability and that is placed on walls, bulletin boards, or elsewhere on the employer's premises, or circulated in the workplace. (c) The standard for determining whether verbal or physical conduct relating to race, color, religion, gender, national origin, age, or disability is sufficiently severe n4 or pervasive to create a hostile or abusive work environment is whether a reasonable person in the same or similar circumstances would find the conduct intimidating, hostile, or abusive. The "reasonable person" standard includes consideration of the perspective of persons of the alleged victim's race, color, religion, gender, national origin, age, or disability. It is not necessary to make an additional showing of psychological harm. n4 See, e.g., Rodgers v. Western-Southern Life Ins. Co., 792 F. Supp. 628 (E.D. Wis. 1992) (supervisor's infrequent use of racial comments such as "nigger" and "you Black guys are too f***ing dumb to be insurance agents," created a hostile work environment). See also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 & n.4 (7th Cir. 1991) (court noted that even where harasser was a co-worker, one egregious incident, such as performing KKK ritual in workplace, would create hostile environment). (d) An employer, employment agency, joint apprenticeship committee, or labor organization (hereinafter collectively referred to as "employer") has an affirmative duty to maintain a working environment free of harassment on any of these bases. n5 Harassing conduct may be challenged even if the complaining employee(s) are not specifically intended targets of the conduct. n5 See Commission Decision Nos. YSF 9-108 (racial harassment), 72-1114 ( religious harassment) , 71-2725 (gender-based harassment), CCH EEOC Decisions (1973) (paragraph) (paragraph) 6030, 6347, and 6290, respectively; Commission Decision No. 76-41, CCH EEOC Decisions (1983) (paragraph) 6632 (national origin harassment). (e) In determining whether the alleged conduct constitutes harassment, the Commission will look at the record as a whole and at the totality of the circumstances, including the nature of the conduct and the context in which it occurred. The determination of the legality of a particular action will be made from the facts, on a case-by-case basis. 1609.2 -- Employer liability for harassment. (a) An employer is liable for its conduct and that of its agents and supervisory employees with respect to workplace harassment on the basis of race, color, religion, gender, national origin, age, or disability: (1) Where the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action; or (2) Regardless of whether the employer knew or should have known of the conduct, where the harassing supervisory employee is acting in an "agency capacity." To determine whether the harassing individual is acting in an "agency capacity," the circumstances of the particular employment relationship and the job functions performed by the harassing individual shall be examined. "Apparent authority" to act on the employer's behalf shall be established where the employer fails to institute an explicit policy against harassment that is clearly and regularly communicated to employees, or fails to establish a reasonably accessible procedure by which victims of harassment can make their complaints known to appropriate officials who are in a position to act on complaints. (b) With respect to conduct between co-workers, an employer is responsible for acts of harassment in the workplace that relate to race, color, religion, gender, national origin, age, or disability where the employer or its agents or supervisory employees knew or should have known of the conduct, and the employer failed to take immediate and appropriate corrective action. (c) An employer may also be responsible for the acts of non-employees with respect to harassment of employees in the workplace related to race, color, religion, gender, national origin, age, or disability where the employer or its agents or supervisory employees knew or should have known of the conduct and failed to take immediate and appropriate corrective action, as feasible. In reviewing these cases, the Commission will consider the extent of the employer's control over non-employees and any other legal responsibility that the employer may have had with respect to the conduct of such non-employees on a case-by-case basis. (d) Prevention is the best tool for the elimination of harassment. An employer should take all steps necessary to prevent harassment from occurring, including having an explicit policy against harassment that is clearly and regularly communicated to employees, explaining sanctions for harassment, developing methods to sensitize all supervisory and non-supervisory employees on issues of harassment, and informing employees of their right to raise, and the procedures for raising, the issue of harassment under title VII, the ADEA, the ADA, and the Rehabilitation Act. An employer should provide an effective complaint procedure by which employees can make their complaints known to appropriate officials who are in a position to act on them. ------------- [I'd like to comment, based on some knowledge of analogous provisions in the area of sexual harrassment. Note first that there is no prohibition here of religious symbols. In order to take action on them, you'd have to show that these symbols somehow show hostility or aversion towards someone, and affect their performance. Note that the standard used is of a "reasonable person". There is a lot of fear in the sexual harrassment area that offenses might be defined strictly by the supposed victim, and that one could be accused because of doing something that no reasonable person would consider offensive. This fear does not seem to have a basis in the law, but there seems to be some basis in practice. Some groups seem to have decided to go beyond the strict requirements of the law in implementation. As an example, our church is currently considering adopting a policy on sexual harrassment. We took as our model the policy of the New Brunswick Presbytery. That policy comes very close to saying that anything that somebody claims is offensive actually is offensive. Our legal counsel informed us that this was an inappropriate standard -- that the law and court decisions say that in order to be an offense, the action must be such that a reasonable person (in NJ, I believe it is a reasonable person of the same sex as the person offended) would consider it to be offensive. If the religious harrassment rules are interpreted with that degree of care, they could actually prove helpful to Christians in some cases. The one area that I think may be problematical is certain styles of evangelism. It's hard to see how wearing a Christian symbol, and talking to your friends about your faith, would be an issue. But if you decide to witness to someone who isn't a Christian and hasn't shown some interest in hearing your message -- particularly if the evangelism says that all XXX's are going to hell -- one can envision accusations being made. --clh]