LD 1428: A license to harass employees

Religious freedom (pic)In Romeo and Juliet, Shakespeare wrote, “What’s in a name?  That which we call a rose By any other name would smell so sweet.”  Last week, the Judiciary Committee of the Maine Legislature held hearings on a bill entitled “An Act to Protect Religious Freedom.”  But this bill, while masquerading as a rose, doesn’t smell so sweet; in fact, it’s a real stinker.  If enacted, LD 1248 could seriously undermine Maine’s civil rights laws. 

Currently, the Maine Human Rights Act prohibits discrimination based on race, age, sex, religion, national origin, disability, and sexual orientation.  If adopted, the bill under consideration would allow employers to subject their employees to a hostile work environment with impunity despite the longstanding protections of the MHRA.  

Traditionally, hostile work environment claims were founded on what is known as “quid pro quo” harassment – for example, a boss telling his secretary, “If you don’t sleep with me, you’re fired.”  But that is not the only basis for a hostile work environment claim.  Employees who are subjected to severe or pervasive and unwelcome comments at work—such as co-workers making derogatory remarks about blacks or women or homosexuals—or who are forced to endure distasteful jokes or inappropriate pictures, can also assert claims for a hostile work environment.

LD 1428 would give employers a defense to hostile work environment claims if the employee who made the offensive comments can show that his/her conduct or expression was substantially motivated by a sincerely held religious belief. 

Let me give you a concrete example of how this bill could impact a real live case.  In a case I’ve written about before, Carnot v. Department of Homeland Security, my client, Rebecca Carnot, a 30-year-old woman, was hired as a border protection officer at the border crossing in Coburn Gore, Maine.  Ms. Carnot’s supervisor was a fundamentalist Christian, and several of the other officers at the station belonged to the same fundamentalist church as the supervisor.

From the outset of her employment, the supervisor tried to impose his fundamentalist values upon Ms. Carnot.  During the first week of her employment, after learning that Becky was divorced and dating, the supervisor told her during a car trip to Jackman that she should court, not date.  When she asked the difference, the supervisor explained that dating involved sexual intimacy and that he did not believe that an unmarried woman should engage in such conduct.  Then he turned on some gospel music.

The supervisor’s comments during the first week of her employment set the tone for Becky’s 18 months of work in Coburn Gore.  During that time, the supervisor commented that “My proudest moment was when my daughter got married and was still a virgin”; “Women should not be involved in law enforcement”; “A woman’s place is 50 feet from the oven.” “My wife is well-trained; she should have dinner hot and ready for me when I come home”; “You ruined a perfectly good hunting camp”; and referred to gays as “Section 212a queers” (Section 212 prohibits entry into the United States for undesirable individuals).

Ultimately, Becky filed a claim of religious and sexual harassment.  Upon learning that she had done so, the supervisor terminated her employment. 

While Becky’s case may sound extreme, unfortunately it is not so uncommon as you might think.  If the Legislature were to adopt LD 1428, not only would the supervisor’s conduct become legal, but I believe such cases would become more common.  Under the guise of expression of religion, individuals would be free to state that their religion does not permit [fill in the blank].

After Becky’s case was settled, because it was not confidential, it received considerable publicity.  The general consensus of employees who commented about the news stories was that politics and religious beliefs should be checked at the workplace door; that the workplace is not an appropriate forum for such discussion, especially if an employee indicates that s/he does not want to discuss those topics.  

I recognize that we need to balance freedom of religious expression with individual rights in the workplace.  But LD 1248 goes way too far in the opposite direction.  Contrary to its name, LD 1428 is no act to protect religious freedom.  Rather, LD 1428 would subject all of us to religious intolerance.  In the name of religious expression, LD 1428 would leave employees defenseless who disagree with another’s religious expression and who do not want to be subjected to harassment.  If you care about true religious liberty, urge your legislator to vote against this bill.

If you believe your rights have been violated, contact us.

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