Meltebeke v. Bureau of Labor & Industries

852 P.2d 859, 120 Or. App. 273, 1993 Ore. App. LEXIS 797, 63 Empl. Prac. Dec. (CCH) 42,638, 63 Fair Empl. Prac. Cas. (BNA) 709

• Court: Court of Appeals of Oregon
• Decided: May 19, 1993
• Docket: 29-90; CA A68770
• Status: Published

Opinions

WARREN, P. J.

Petitioner seeks review of a final order of the Bureau of Labor and Industries (BOLI) that concluded that he had committed an unlawful employment practice by discriminating against one of his employees on the basis of religion. ORS ' 659.030(l)(b). We reverse.

Petitioner is a sole proprietor of a painting business. As an evangelical Christian, he believes that he has a duty to tell others, especially nonbelievers, about God and sinful conduct. That includes informing others that, on the basis of elements of their lifestyles, they are sinners. Petitioner’s “witnessing” is persistent because, as he believes, no one would ever be persuaded if he quit witnessing whenever a person lacked interest.

Between June 27 and July 27, 1988, petitioner employed complainant. During that month, petitioner, among other things, invited complainant to church at least twice each week, told complainant 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. He also said that he wanted to work with a Christian, because he believed that a Christian would not steal. In addition, he witnessed to members of complainant’s family and to his girlfriend. Although petitioner’s witnessing severely distressed complainant, he never mentioned that to petitioner, because he thought that it might affect his employment. Nevertheless, complainant did decline all of petitioner’s invitations to attend church.

After petitioner discharged him for poor work performance,¹ complainant filed an unlawful employment practice complaint with BOLI. BOLI concluded that petitioner had committed an unlawful employment practice by discriminating against complainant on the basis of religion. Specifically, BOLI concluded that petitioner’s religious advances constituted religious harassment.

ORS 659.030 provides, in part:

“(1) [I]t is an unlawful employment practice:

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“(b) For an employer, because of an individual’s * * * religion * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

In In re Sapp’s Realty, No. 11-83, (BOLI January 31, 1985), BOLI held that an employer’s religious harassment is a form of religious discrimination prohibited by ORS 659.030(l)(b). It defined “religious harassment” to include making religious advances when “such conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment” from the perspective of a reasonable employee in the complainant’s situation. BOLI found that petitioner violated the Sapp’s Realty rule (the rule or BOLI’s rule) by witnessing to complainant.

In his first assignment of error, petitioner contends that BOLI erred in applying a reasonable employee standard, because the nature of the work environment must instead be viewed from the perspective of a reasonable employer. Specifically, petitioner contends that he could not be held liable for creating a harassing environment without proof that a reasonable employer would have known of the harassing nature of the working environment. That assignment of error lacks merit, because BOLI applied the reasonable employer standard in its amended order.²

In his second, third and fourth assignments of error, petitioner makes an assortment of objections to BOLI’s order. Combining the argument on those assignments, he contends that the evidence was insufficient to support BOLI’s conclusion that the work environment was hostile, intimidating or offensive as viewed from the perspective of a reasonable person in complainant’s situation.³ BOLI made uncontroverted findings that:

“[Petitioner’s] conduct occurred at least twice per week. It occurred for a month, which was the entire length of Complainant’s employment with [petitioner]. It occurred both on and off the job, and invaded not only Complainant’s personal life, but the personal lives of his fiancee and mother. [Petitioner] made it clear that he wanted to work with Christians, and repeatedly reminded Complainant that [petitioner] considered him a sinner because his life style did not conform to [petitioner’s] religious beliefs. [Petitioner’s] invitations to church were repeated regularly at work, and there was no indication that his comments would stop.”

BOLI’s other findings provide more detailed information concerning petitioner’s witnessing, the characteristics of complainant and the nature of the work environment. On the basis of those findings, BOLI did not err in concluding:

“From the perspective of a 20 year old employee with Complainant’s education [complainant had not completed high school] and experience, and in a situation where he worked closely with his harasser/employer, [petitioner’s] religious conduct was sufficiently pervasive to alter the conditions of the employee’s working environment, and had the effect of creating an intimidating and offensive working environment.”

The special concurrence contends that BOLI’s rule concerning religious harassment exceeds its rulemaking authority, because it prohibits employers from expressing religious beliefs even though no discrimination in conditions of employment occurred because of the employee’s religion. In short, it asserts that BOLI’s rule is unlawful because it does not require that the employer discriminate against the employee because of the employee’s religion. That, however, is not BOLI’s position.

BOLI’s rule provides that religious advances constitute discrimination when the employer’s motivation for making those advances is that the employee’s religious beliefs are different from the employer’s. In fact, BOLI made a specific finding that complainant was discriminated against because of his religion.⁴ That is discrimination because of that individual’s religion, which is precisely what ORS 659.030(l)(b) proscribes.

In his fifth assignment of error, petitioner inartfully contends⁵ that BOLI’s order deprived him of his right to free exercise of his religious beliefs and to free speech, protected by the Oregon and United States constitutions. We address the state constitutional issues first, beginning with the guarantees of religious freedom. State ex rel Juv. Dept. v. Tucker, 83 Or App 330, 333, 731 P2d 1051 (1987).

Article I, sections 2 and 3, of the Oregon Constitution provide:

“(2) All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences. —

“(3) No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience. — ”

Those provisions guarantee, among other things, the free exercise of religiously motivated practices. Employment Div. v. Rogue Valley Youth for Christ, 307 Or 490, 498, 770 P2d 588 (1989). BOLI concedes that the enforcement of its rule concerning religious harassment burdened petitioner’s free exercise of his religious beliefs. Nevertheless, it contends that that burden is constitutionally permissible.

When, as in this case, the enforcement of a law does not always burden religious freedom, but may in some cases, the interference with religious freedom is incidental, rather than direct. The standard we apply to evaluate such laws is clear:

“ ‘The state may justify [an incidental] limitation on religion by showing that it is essential to accomplish an overriding governmental interest.’ ” Employment Div. v. Rogue Valley Youth for Christ, supra, 307 Or at 498. (Citations omitted.)⁶

Consequently, we must determine if BOLI’s rule concerning religious harassment is essential to accomplish an overriding governmental interest.

BOLI submits that the interest advanced by the application of its rule is in preventing religious discrimination. That, after all, is the purpose of ORS 659.030(l)(b), the statute that BOLI’s rule implements. The state has an overriding interest in preventing religious discrimination. See E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F2d 610, 620 (9th Cir 1988), cert denied 489 US 1077 (1989). However, BOLI’s test for what constitutes religious discrimination is not essential to advance that interest.

A law that burdens the free exercise of religion is not essential, unless it represents the least restrictive means available to advance the overriding governmental interest. See State ex rel Juv. Dept. v. Tucker, supra, 83 Or App at 334. Under BOLI’s rule, religious discrimination results whenever a reasonable person would find an employer’s religious advances hostile, intimidating or offensive. Petitioner contends that BOLI’s definition of what constitutes discrimination would be less restrictive if it incorporated an intent element. We agree. 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. Consequently, protecting the sensibilities of a “reasonable person,” without more, is not the least restrictive means available to advance the government’s interest when religious freedom is at stake.

Although petitioner’s alternative would be less restrictive than BOLI’s reasonable person standard, we cannot say that it is the least restrictive means of eliminating religious harassment, i.e., discrimination. That is BOLI’s determination to make in the first instance. Nevertheless, we can say that, because there is a less restrictive alternative, BOLI erred in applying its definition of religious harassment to burden petitioner’s exercise of his religious beliefs.

The special concurrence contends that BOLI’s rule concerning religious harassment is facially unconstitutional, because it directly interferes with religious freedom. It relies on Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 723 P2d 298 (1986), appeal dismissed 480 US 942 (1987), where the court entertained a free exercise challenge to a statute that prohibited teachers from wearing “any religious dress while engaged in the performance of duties as a teacher,” and another statute that provided that a violation of the former statute could result in suspension from employment. Because those statutes could not be complied with or enforced without burdening the free exercise of religion, the statutes were subject to a facial challenge for overbreadth and were saved only by a narrowing construction. 301 Or at 378. Because BOLI’s rule can be enforced without burdening religious freedom,⁷ that case is inapposite.

BOLI’s rule is not subject to a facial attack under Article I, sections 2 and 3. Instead, when BOLI’s application of its rule burdens a person’s religious freedom, that person must challenge the law as applied. That is what petitioner did. Although we conclude that BOLI cannot constitutionally apply its rule to petitioner, the rule is not invalid, because it has other constitutional applications and is not facially void.

The special concurrence contends that a law that only incidentally burdens religious freedom is not subject to constitutional scrutiny on free exercise grounds. It relies primarily on Smith v. Employment Div., 301 Or 209, 216, 721 P2d 445 (1986), vacated on other grounds 485 US 660, 108 S Ct 1444, 99 L Ed 2d 753 (1988). In that case, the claimant was fired by his employer for using peyote as part of a religious ceremony. The claimant sought unemployment benefits, but, under the Employment Division’s rules, no unemployment benefits were available to any employee fired for what the employer permissibly regarded as misconduct. Because the claimant had been fired for what his employer considered to be misconduct, the Division denied his request for unemployment benefits. The claimant appealed, arguing that the denial of unemployment benefits burdened his right to freely exercise his religious beliefs. The court disagreed:

“Claimant was denied benefits through the operation of a statute that is neutral both on its face and as applied. The law and the rule defining misconduct in no way discriminates against claimant’s religious practices or beliefs. If claimant’s freedom to worship has been interfered with, that interference was committed by his employer, not by the unemployment statutes.” 301 Or at 216.

In concluding that the state had not burdened the claimant’s free exercise of his religious beliefs, the Smith court strongly cautioned against reading its decision too broadly:

“We do not imply that a governmental rule or policy disqualifying a person from employment or from public services or benefits by reason of conduct that rests on a religious belief or a religious practice could not impinge on the religious freedoms guaranteed by Article I, sections 2 and 3. * * * But here it was not the government that disqualified claimant from his job for ingesting peyote. And the rule denying unemployment benefits to one who loses his job for what an employer permissibly considers misconduct, conduct incompatible with doing the job, as itself a neutral rule, as we have said. As long as disqualification by reason of the religiously based conduct is peculiar to the particular employment and most other jobs remain open to the worker, we do not believe that the state is denying the worker a vital necessity in applying the ‘misconduct’ exception of the unemployment compensation law.” 301 Or at 216. (Emphasis supplied.)

Because it was the employer, not the state, that prohibited the claimant from practicing his religion, and the claimant chose to work for that employer, there was insufficient state action to support the claimant’s claim of a constitutional deprivation.

In Smith, the Division’s rule did not burden the claimant’s religious practices, because he could avoid the application of that rule by choosing an employer which did not consider peyote use work-related misconduct. That is not true here. If petitioner hires an employee, he is bound by BOLI’s rule. Consequently, Smith is inapposite. However, because enforcement of BOLI’s rule would not necessarily burden religious practices, the restraint on petitioner’s religious freedom, if any, is incidental, not direct. As indicated in Employment Div. v. Rogue Valley Youth for Christ, supra, petitioner must challenge BOLI’s rule as applied, which is what he did.

Because we conclude that petitioner was deprived of ■ his rights under Article I, sections 2 and 3, of the Oregon Constitution, we need not address his other constitutional claims.

Reversed and remanded for reconsideration.

1 Complainant concedes that his discharge was not religiously motivated.

2 Although BOLI evaluated the evidence in this case from the perspective of a reasonable employer and also from the perspective of a reasonable employee, it did so only because it considered that those perspectives were the same. That is, BOLI said that a reasonable employer would know what conduct a reasonable employee in complainant’s situation would find hostile, intimidating or offensive. Consequently, BOLI’s standard can more accurately be referred to as a reasonable person standard.

3 Petitioner asserts:

“The standard of review [for the second, third and fourth assignments of error] is whether the record contains substantial evidence to support the Agency’s conclusion that [petitioner] so frequently voiced his religious opinions to [complainant] that he created an illegal, abusive working environment based on religion.”

Although we do not agree with petitioner that the assignments present only a question of substantial evidence, petitioner failed to make separate arguments, referenced to the appropriate standard of review, to support each separate assignment. Moreover, most of the argument that he does make is based on constitutional claims that he reasserts in a later assignment of error. Consequently, we will address petitioner’s second, third and fourth assignments of error as framed by him, reserving his constitutional claims for later discussion.

4 The special concurrence contends that that finding is not supported by substantial evidence. To the contrary, the record fully supports BOLI’s determination that complainant did not share petitioner’s religious beliefs and that petitioner’s advances were motivated by that fact.

5 Specifically, petitioner contends that “[tlhe Commissioner erred in holding that [petitioner’s! constitutional rights are not violated by the holding in this case

6 In Employment Div. v. Rogue Valley Youth for Christ, supra, the plaintiff sought to assess unemployment compensation taxes against the defendant religious organization. The statutes and rules authorizing those assessments were construed to apply to all employers. Because most employers are not religious organizations, compliance with or enforcement of those rules would not necessarily burden an employer’s religious freedom. Nevertheless, the defendant argued that, if it was required to pay the taxes, that would burden its exercise of religious freedom, because it was a religious organization. The court assumed that that was true, but found that burden to be constitutionally permissible. Employment Div. v. Rogue Valley Youth for Christ, supra, 307 Or at 499. Rogue Valley is the Oregon Supreme Court’s last decision concerning incidental restraint free exercise challenges under the Oregon Constitution, so we must follow it.

7 For example, if petitioner had harassed complainant by derogating complainant’s religious beliefs, without exercising or expressing his own, he could not complain that penalizing him for that harassment burdened his right to exercise freely his religious beliefs.