Meltebeke v. Bureau of Labor and Industries

• Decision Date: 19 May 1993
• Citation: 120 Or.App. 273,852 P.2d 859
• Parties: , 63 Fair Empl.Prac.Cas. (BNA) 709, 63 Empl. Prac. Dec. P 42,638 James V. MELTEBEKE, Petitioner, v. BUREAU OF LABOR AND INDUSTRIES, Respondent. 29-90; CA A68770.
• Court: Oregon Court of Appeals

Page 859

852 P.2d 859

120 Or.App. 273, 63 Fair Empl.Prac.Cas. (BNA) 709,

63 Empl. Prac. Dec. P 42,638

James V. MELTEBEKE, Petitioner, v. BUREAU OF LABOR AND INDUSTRIES, Respondent.

29-90; CA A68770.

Court of Appeals of Oregon.

Argued and Submitted Sept. 21, 1992.

Decided May 19, 1993.

Kelly E. Ford, Beaverton, argued the cause, for petitioner. With him on the brief was Steven W. Graber, P.A., Hutchinson, KA.

Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

WARREN, Presiding Judge.

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(1)(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:

" * * * * *

"(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(1)(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(1)(b) proscribes.

In his fifth assignment of error, petitioner inartfully contends ⁵ 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 P.2d 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 P.2d 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, 770 P.2d 588. (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(1)(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 F.2d 610, 620 (9th Cir.1988), cert. denied 489 U.S. 1077, 109 S.Ct. 1527, 103 L.Ed.2d 832 (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, 731 P.2d 1051. 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...