Meltebeke v. Bureau of Labor and Industries

• Decision Date: 05 October 1995
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 56 James V. MELTEBEKE, Respondent on Review, v. BUREAU OF LABOR AND INDUSTRIES, State of Oregon, Petitioner on Review. BOLI 29-90; CA A68770; SC S40567.
• Court: Oregon Supreme Court

Page 351

903 P.2d 351

322 Or. 132, 69 Fair Empl.Prac.Cas. (BNA) 56

James V. MELTEBEKE, Respondent on Review, v. BUREAU OF LABOR AND INDUSTRIES, State of Oregon, Petitioner on Review.

BOLI 29-90; CA A68770; SC S40567.

Supreme Court of Oregon In Banc.

Argued and Submitted March 9, 1994.

Decided Oct. 5, 1995.

Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the petition were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Kelly E. Ford, Beaverton, argued the cause for respondent on review.

David K. Allen and Richard C. Busse, Salem, filed a brief on behalf of amicus curiae the American Civil Liberties Union Foundation of Oregon, Inc.

Doug Vande Griend and Jay R. Jackson, Salem, filed a brief on behalf of amicus curiae Western Center for Law and Religious Freedom.

FADELEY, Justice.

Petitioner, an employer, sought review of a revised final order of the Bureau of Labor and Industries (BOLI), which concluded that he had violated ORS 659.030(1)(b) by discriminating against an employee on the basis of religion. The Court of Appeals reversed, on the basis that petitioner had established an affirmative defense under Article I, sections 2 and 3, of the Oregon Constitution. Meltebeke v. Bureau of Labor and Industries, 120 Or.App. 273, 852 P.2d 859 (1993). We affirm the decision of the Court of Appeals.

FACTS AND PROCEDURAL BACKGROUND

In this court, there is no challenge to the findings of fact made by BOLI in its revised final order. Those findings, where they are of fact, therefore, are the facts for purposes of our judicial review. See Jefferson County School Dist. No. 509-J v. FDAB, 311 Or. 389, 393 n. 7, 812 P.2d 1384 (1991) (unchallenged findings of fact are the facts for purposes of judicial review of an administrative agency's final order).

James Meltebeke (Employer) was, at all material times, an employer subject to the provisions of ORS chapter 659. He was the sole proprietor of a painting business in St. Helens. From June 17 to July 27, 1988, he employed Complainant as a painter. In this small business, Employer was normally Complainant's direct supervisor. They worked near each other from four to eight hours per day. Employer dismissed Complainant for poor work performance. ¹

Employer is an evangelical Christian. He believes that he has a religious duty to tell others, especially non-Christians, about God and sinful conduct. That duty, he believes, includes initiation of discussions about religion and includes "preaching" or "witnessing" even when "an individual doesn't want to hear." It also includes denouncing sin by telling others that they are sinners where he believes that is appropriate.

In the month during which Employer employed Complainant, Employer invited him to attend church eight times (twice a week). The first such request occurred two days after Complainant was hired. Complainant repeatedly told Employer that he "could not make it" but that he "would think about it." He never did attend. Employer also tried to call Complainant at home to encourage him to attend church.

On more than one occasion, Employer told Complainant that he was a sinner who would go to hell, because he slept with his fiancee and because he did not attend church. Employer made similar remarks to the fiancee, whom Complainant later married, and to Complainant's mother. Employer told Complainant that "he had to be a good Christian to be a good painter, and that he should go to church to be a good painter." He also told Complainant that he wanted to work with a Christian, because he believed that a Christian "wouldn't be stealing stuff" while working "in people's homes, inside repainting."

Complainant never informed Employer that he felt offended, harassed, or intimidated by anything that Employer said to him or to anyone else. He did not ask Employer to cease. Employer "did not know that his comments were unwelcome or offensive to Complainant," the agency found as fact. Employer did not "criticize[ ] any religion by name" to Complainant or apply any "religious slur" to Complainant or otherwise.

Complainant was 22 years old at the time of the hearing. He has completed 10th grade and is considered to be learning disabled. Complainant was a "loner" who had little interest in religion. While in the Job Corps in the mid-1980s, he was issued Bibles, which he "thr[e]w * * * in the garbage[;] [he] didn't want to mess with it." Complainant attended Sunday School and Christmas Eve services when he was "very little" but had not gone to church regularly since he was in kindergarten. While employed by Employer, he did not attend any church.

Complainant felt "embarrassed," "very uncomfortable," "humiliated," "bug[ged]," "reluctant to go to work each morning," and "out of place" because of his perception that Employer "was pushing God down his throat, and he did not want to have anything to do with it." Complainant "would come home from work angry. * * * [H]e was coming home after work and 'basically exploding.' " Employer's "comments caused Complainant to hate churches. Now he 'can't stand looking at them' * * * [and] 'can't stand' to talk about religion. He 'gets upset' whenever religion is mentioned."

Complainant did not complain or request that Employer cease inviting him or discussing religious topics, because "you don't say that to your boss. I mean, at least I don't. I told him I couldn't make it [to church] all the time. He should have got the hint, and I ain't a rude person that tells someone that's his religion, that's not mine." ² "Complainant thought his job might be affected by his unwillingness to go to church. * * * He did not know what to do because [Employer] was his boss. * * * After two weeks of employment with [Employer], Complainant began looking for other work because he was so uncomfortable about [Employer's] religious comments." ³

Sometime after his termination, Complainant filed a complaint with BOLI, alleging that he was the victim of an unlawful employment practice by Employer. Specifically, Complainant alleged that he had been subjected to religious discrimination in the form of religious harassment.

In its final order dated February 4, 1992, BOLI found as ultimate facts that Employer's conduct was directed at Complainant because of Complainant's religious beliefs; that Employer's conduct was subjectively "unwelcome and offensive" to Complainant; and that Employer's conduct "was sufficiently pervasive so as to alter the conditions of employment, and had the effect of creating an intimidating and offensive working environment." BOLI concluded that Employer had violated ORS 659.030(1)(b) by violating BOLI's implementing rule, which is a "test for religious harassment" adopted in In the Matter of Sapp's Realty, No. 11-83, (BOLI 1985). ⁴

BOLI withdrew and revised its final order after employer objected. In the amended opinion portion, BOLI explained that the evidence demonstrated that Employer's conduct occurred because "[C]omplainant did not share [Employer's] religious beliefs" and that Employer's conduct was unwelcome to Complainant subjectively. BOLI also explained that, under the totality of the circumstances and applying an objective, "reasonable person" standard, Employer's conduct had the effect of creating an "intimidating, hostile, or offensive working environment." Also in its amended opinion, BOLI considered, and rejected, Employer's affirmative defenses, based on Article I, sections 2, 3, ⁵ and 8, of the Oregon Constitution, and the First Amendment to the United States Constitution. ⁶

BOLI determined that Complainant was entitled to $3,000 in compensatory damages. It ordered that Employer pay those damages plus interest; that Employer "cease and desist from discriminating against any employee on the basis of religion"; and that Employer post at his work sites copies of ORS 659.030 and related notices.

Employer appealed, arguing that BOLI's order violated his rights under the above-enumerated constitutional provisions. The Court of Appeals reversed and remanded the case to BOLI for reconsideration. Meltebeke. The Court of Appeals concluded that BOLI's rule, as applied in this case, ⁷ violated Article I, sections 2 and 3. That court reasoned that the burden imposed on religion by the rule would be acceptable if the rule were "essential" to accomplish an "overriding governmental interest" and that the rule is not the "least restrictive" means of protecting that interest, because it does not require that the individual "intend" to create a hostile, offensive, or intimidating environment. 120 Or.App. at 278-80, 852 P.2d 859. The court did not reach Complainant's other constitutional claims. Id. at 282, 852 P.2d 859.

Judge Edmonds concurred specially, stating that, if the constitutional issues were reached, he would hold that BOLI's rule violated Article I, section 3, on its face, because "it fails to accommodate an employer's expression of religious belief or opinion." Id. at 287-91, 852 P.2d 859. But he reasoned that the court need not reach the constitutional issues presented, for several reasons: BOLI's rule exceeded its statutory rulemaking authority, id. at 283, 852 P.2d 859; the findings of discrimination due to Complainant's religious beliefs, id. at 285, 852 P.2d 859, and that a hostile environment existed were not supported by substantial evidence in the record, id. at 286-87, 852 P.2d 859; and, in any event, BOLI's conclusions did not follow from the findings that it made, id. at 287, 852 P.2d 859.

Judge Riggs dissented, reasoning that "freedom from religion is entitled to the same level of constitutional * * * protection in the workplace" as "freedom to practice religion." Id. at 293, 852 P.2d 859 (emphasis in original). He would hold that "[c]onduct is not always protected merely because someone chooses to invoke constitutional guarantees of expression or...