'Free expression' can come at high cost for some workers.

Jeremy Hall, a 23-year-old Army specialist and an atheist, recently sued the Department of Defense and his commanding officer, saying they violated his constitutional rights. While stationed in Iraq, Hall held meetings with other atheists and refused to say grace in the mess hall; in retaliation, he says, he was turned down for a promotion and his major threatened to block his reenlistment. The lawsuit is being brought by Hall and the Military Religious Freedom Foundation (MRFF), based in Albuquerque, New Mexico. (Hall v. Welborn, No. 08-CV-2098 JWL/DJW (D. Kan. filed Mar. 5, 2008.)

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Hall's lawsuit is the first to directly challenge what Mikey Weinstein, president and founder of the MRFF calls a "pervasive practice" of coercive proselytizing in the military. "But we have many others coming right behind it," he added.

The United States has more religions than any other country. Often, this variety is seen as a blessing. But when those beliefs enter the workplace, hackles--and lawsuits--can rise up.

Richard Peterson, a devout evangelical Christian, was a 21-year employee at Hewlett-Packard in Boise, Idaho. To promote its antidiscrimination policy, the company put up posters celebrating diversity that featured a person who was identified as gay. Peterson responded by placing large placards containing antihomosexual Biblical verses around his cubicle, where they were visible to employees and customers.

Concerned that some employees might be offended by the placards, Peterson's supervisor removed them. Peterson objected, and after several unsuccessful attempts at mediation, the company fired him. He then sued for religious discrimination.

The Ninth Circuit found there were no grounds for the discrimination claim, concluding that allowing Peterson to keep his signs up "would have forced the employer to exclude sexual orientation from its workplace diversity program, infringing upon the employer's right to promote diversity and encourage tolerance and good will among its workforce." (Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004).)

In Indiana, James Dawson, also a devout Christian, was subjected to ridicule and pranks by his non-Christian coworkers at a trailer-manufacturing mill. Dawson said they drew Satanic symbols on his workspace, verbally derided his beliefs, and tampered with his work tools.

After Dawson was fired, he filed a claim of religious harassment against his employer. The court found that "several of the hostile incidents cited by Dawson [were] patently or arguably tied to his religion." (Dawson v. Monaco Coach Corp., No. 3:02-CV-830 (N.D. Ind. Nov. 9, 2005) (unpublished).)

For the most part, courts have drawn a steady line between expression and harassment. For example, an Iowa court found that Yellow Book employee Tammy Powell could not claim religious harassment simply because her coworker displayed religious symbols in her cubicle and talked about her religion, saying that "an employer ... has no legal obligation to suppress any and all religious expression merely because it annoys a single employee." (Powell v. Yellow Book, 445 F.3d 1074 (8th Cir. 2006).) But in California, a state appellate court found that a company had the right to fire an employee who persisted in aggressively proselytizing to her coworkers. (Ng v. Jacobs Engineering Grp., No. B 185838 (Cal. App. Oct. 16, 2006) (unpublished).)

A rising trend

The Equal Employment Opportunity Commission has reported a rise in religious discrimination cases. The sharpest spike came in 2002, which saw a 20 percent increase. In 2006, there was another 10 percent jump.

Gregg Rosenberg, an employment lawyer in Houston, said he's noticed an uptick in employer-sponsored religious activity that could well be considered discriminatory--such as a Christian business owner holding weekly prayer sessions where employee attendance is mandatory (and unpaid). The twist, Rosenberg said, is that the employers are not organizing these activities to punish or harass their employees.

"In fact, they present it as something like a spa membership--they say it's a great opportunity, it enriches the soul," he said. "And maybe for some Christian employees, it does. But that doesn't help the employee who's a Hindu, or Jewish, or an atheist."

Religious expression is protected by Title VII of the Civil Rights Act, which mandates "reasonable accommodation" of workers' religious beliefs as long as the accommodation doesn't cause "undue hardship" to the employer. In recent years, courts have deemed that allowing Muslim workers to wear head scarves or Sikh police officers to wear turbans with their police uniforms, and letting employees pray or display religious symbols in their workspaces, were not undue hardships.

To bolster Title VII, Congress is reconsidering passage of a bill proposed in 2005, the Workplace Religious Freedom Act (WRFA). The act would change "undue hardship" to "significant difficulty or expense," language similar to that in the Americans with Disabilities Act. WRFA would also require that a reasonable accommodation "remove the conflict between employment requirements and the religious observance or practice of the employee." And it would require employers to allow "practices that may have a temporary or tangential impact on the ability to perform job functions" if they are related to religious belief.

But far from settling the controversy, WRFA has stirred up its own hornet's nest, pitting civil rights advocates against groups that advocate for religious freedom. WRFA's opponents include the ACLU, Planned Parenthood, the National Women's Law Center, and the U.S. Chamber of Commerce'; its proponents include the American Jewish Council, the Church of Seventh-Day Adventists, and the Interfaith Alliance.

"The intention of WRFA is lovely," said Lori Lipman Brown, director of the Secular Coalition for America, a Washington, D.C.-based group that represents nontheistic Americans. "But some denominations require their members to evangelize 24/7, and if you limit that, you're 'taking God away from them.' They believe that 'free exercise' means they get to tell their coworkers that they are sinners and are going to hell. And indeed, for us it's a very big issue because the people most likely to be harangued are nonbelievers. This is going to have a huge impact on the day-to-day workplace," she predicted.

The ACLU is even harsher, calling WRFA a "dangerous bill" that will stand civil rights on its head.

"What's most disturbing about WRFA is that if it passes as is, it would be the first time that a civil rights law would be used as a weapon rather than a shield," said Chris Anders, legislative director for the ACLU, in Washington, D.C. He explained that under WRFA, courts would have to allow religious-discrimination claims that were previously rejected. The ACLU has documented cases filed by nurses who claim they suffered discrimination based on their religion because they refused to participate in certain obstetrical procedures; similar cases have been brought by pharmacists who would not fill birth-control prescriptions and police officers who declined to protect workers at abortion clinics.

"WRFA will give a big leg up to employees taking these positions," Anders said. He noted there is good reason that business groups oppose the bill. "There are good employers out there who are going far beyond what's required by Title VII," he said. "They have their own voluntary nondiscrimination policies, and WRFA would punish them." For instance, he said, it's doubtful that Hewlett-Packard would have prevailed in its firing of Richard Peterson under WRFA.

James Standish, director of legislative affairs for the Seventh-Day Adventists, acknowledged the ACLU's fears but said they were misplaced.

"The issue of access to health care, and of gay and lesbian rights--that certainly resonates," said Standish. "But the change proposed by WRFA is very modest in these areas." Standish noted that courts threw out the claims the ACLU cited. "I think the evidence makes it clear that there won't be a severe impact," he said.

Standish said it is time for an overhaul of Title VII because its language is too broad. "It begs two questions," he said. "One, what is 'reasonable accommodation'? Second, it does not define 'undue hardship.' Right now, courts have defined that as anything above 'de minimis.'"

Because of this, he said, "the law essentially gives employers two bites at the apple. All we are saying is that if you are going to say someone's religious beliefs are disrupting your workplace, you better have a very strong case."

Rosenberg said WRFA may muddy these waters further by producing conflicting court decisions in the first few years. "Decisions will be all over the place," he said. "As with anything new, there will be lots of case-specific interpretation. Don't be surprised to see completely different rulings from the same set of facts--and appellate courts are going to have to reconcile them somehow.

"Judges are going to have to decide what is free exercise: Is it not working on Saturday, or is it not working in the same building as women? It would almost be like having a whole act passed to encompass just sexual harassment."

If religious expression is tricky for civilian workplaces, the problem is amplified when it involves one of the country's largest employers: the U.S. military.

"What happens in the military is very different from the civilian workplace," said Weinstein of the MRFF. He noted that civilian workers can bring lawsuits against their employers, a remedy not available to military personnel.

"This is the reason why the military has strict orders prohibiting officers from selling Amway, or Mary Kay [cosmetics]," he said. "Officers are not supposed to prey on their subordinates."

But religion is treated differently, Weinstein said, because so many senior officers share similar religious beliefs.

Some cases have alleged that the military's hostility to minority religions extends even unto death. Recently, the U.S. Department of Veterans Affairs (VA) included the Wiccan pentacle on its list of approved grave markers, ending a 10-year process that included legal action launched by the widows of Wiccan servicemen.

The lawsuit was brought by Americans United for Separation of Church and State on behalf of members of the Circle Sanctuary in Barneveld, Wisconsin. In April 2007, as part of a settlement, the VA agreed to add the symbol to the list.

Rev. Selena Fox, senior minister of the Circle Sanctuary, said, "The pentacle quest was crucial, because it has led to a better understanding of minority religions, and it has also shown that Wiccans will stand up for their rights."

Fox said Wiccan pentacles now grace the tombstones of servicemen from several wars at military cemeteries, a tangible symbol of growing tolerance.

"We have won acceptance," she said. "It is now, literally, etched in stone.