When Religious Expression Creates A Hostile Work Environment

This article addresses the legal issues that stem from religious expression in the workplace, and focuses primarily on the conflict between an employee's right to religious expression in the workplace and the countervailing right of other employees to be free from a hostile or harassing work environment. This conflict arises, in large part, under Title VII of the Civil Rights Act of 1964. Section 701(j) of Title VII requires an employer to reasonably accommodate an employee's religious needs, including the need for religious expression in the workplace However, Title VII also prohibits the creation of a hostile work environment based upon any of the protected categories and therefore prohibits religious expression which is sufficiently harassing. This article also addresses an employer's right to religious expression in the workplace when employees complain that the religious expression is harassing. Cases involving an employer's religious speech differ in two important ways. First, an employer's right to religious expression is directly protected by the Free Speech and Free Exercise Clauses of the United States Constitution and not by Title VII. Second, because of the power differential between employers and employees, courts tend to view an employer's religious expression as inherently more coercive than the religious expression of employees. This article argues that to some extent the courts and the EEOC have failed to adequately address and recognize the inherent conflict between one employee's right to religious expression in the workplace and the countervailing right of other employees to work in an environment free of religious harassment. However, to the extent that the legal system has recognized the conflict, it has been more concerned with prohibiting hostile work environment harassment than with accommodating religious expression in the workplace and has not adequately recognized that religion is entitled to unique statutory and constitutional protection.