It was one of those only-in-Los-Angeles events, a get-acquainted meeting of Chinese immigrant bankers and black entrepreneurs. One of the stars was the owner of a thriving home health-care business employing about a dozen people. Proud of succeeding without set-asides or affirmative action, he gave out copies of a trade magazine's article on his company's strategy.
He thought he was countering stereotypes. He thought he was showing how creating a sense of community among managers, workers, and clients could lead to business success. He thought he was demonstrating how much his company was respected in its industry. He had no idea how big a risk he was taking.
But there in the stack of article reprints was proof positive that this African-American business role model was blatantly violating federal civil-rights law. One of the photos showed his staff beginning their day with a group prayer. The article explained how important the company's Christian atmosphere was to its success. It is, of course, against the law to discriminate on the basis of religion.
I thought of that businessman recently, when a policy I'd once suggested as a joke—a satire on the excesses of sexual-harassment law—suddenly became very real. Last fall, the Equal Employment Opportunity Commission proposed new guidelines extending the concept of sexual harassment to other protected categories: race, color, national origin, age, disability, and religion.
The EEOC claims the guidelines "were intended merely to explain and interpret existing law." It is already illegal, for instance, to hold mandatory, or apparently mandatory, prayer meetings for employees. The home health-care entrepreneur is over the line.
But a lot of businesses aren't—yet. The Chick-fil-A fast-food chain, for instance, closes its restaurants on Sundays and holds voluntary Monday morning devotional services at its corporate offices. It is a privately held company whose policies and charitable activities reflect its founder's religious beliefs. His son Dan Cathy, the company's executive vice president, testified at a June Senate hearing that the EEOC's proposed guidelines would force the company "to eliminate all references to religion, which would significantly change the culture and morale at Chick-fil-A." Cathy and other critics fear the guidelines would make workplaces as devoid of religious expression as the public schools.
The guidelines impose the equivalent of the "reasonable woman" standard (as opposed to the generic "reasonable person" standard). Whether an action constitutes harassment depends on the perspective of a reasonable member of the offended group—the reasonable black, the reasonable 70-year-old, the reasonable Jehovah's Witness. And harassment need not be deliberate; it can be anything that has the effect of "creating an intimidating, hostile, or offensive work environment."
So the safest policy may be a religion-free workplace. As Michael K. Whitehead, general counsel to the Southern Baptist Convention's Christian Life Commission, notes, "Employers trying to avoid lawsuits want a clear-cut, simple rule which can be understood and obeyed by all employees, whether high school drop-outs or Harvard MBAs. Their primary aim is not to be sensitive to EEOC's intentions or to maximize religious liberty. Their bottom line is to find a policy that will help them stay out of court."
Yet even a religion-free workplace is no sure protection. Federal law requires employers to accommodate employees' religious practices. If a company lets evangelical Christian employees proselytize on the job, it can be sued for creating a "hostile environment" for non-Christians. If it doesn't allow proselytizing, it can be sued for failing to accommodate evangelical Christians.
And for two months a year, most U.S. businesses wage a campaign of religious harassment. Employees are bombarded with songs, slogans, letters, artwork, and numerous other expressions of religious faith. Most businesses shut down to give believers time off to observe their rituals.
This pattern of harassment is known as the Christmas season. It seems OK only because we are used to it. And, as the EEOC notes, "Recent case law on this issue emphasizes the importance of considering the perspective of the victim of the harassment rather than adopting notions of acceptable behavior that may prevail in a particular workplace."
Just because shipyard workers have always posted racy pinups doesn't mean their employer is off the hook for sexual harassment. And just because a department store has always made its clerks listen to piped-in renditions of "Silent Night" doesn't mean that Christmas carols won't spark a suit. After all, says the EEOC, "employees have standing to challenge a hostile or abusive work environment even if the harassment is not targeted specifically at them."
The proposed guidelines have created a stir, drowning the EEOC in protest mail and leading to Sen. Howell Heflin's hearing. The agency will undoubtedly modify its rules, perhaps adding a disclaimer asserting that the EEOC does not intend to create religion-free zones. The modifications may make the current controversy go away. Or Congress may intervene to exempt religious expression from being considered harassment. Either result will represent not good public policy but the triumph of organized religious groups lobbying for special treatment.
"Religious harassment" is a dangerous concept. It can be used as a club by disgruntled employees. The proposed guidelines prohibit free expression. They try to centrally plan the corporate culture of millions of wildly different businesses. They turn the private workplace into an extension of the public sphere. They impose impossible burdens on employers.
And none of that is new. "When I started this business 15 years ago, I spent 95 percent of my time out front with customers. Now I spend 95 percent of my time in back doing paperwork" to comply with new labor laws, Michigan restaurateur David Gillie told me recently. One of his worries: Anyone who gets fired can file an EEOC complaint if he or she belongs to a protected category. "It's amazing what they can put you through," he said. "They get a free lawyer and I have to buy one." Needless to say, settlements are common even in meritless cases.
Massive workplace regulation, down to the details of wall decorations, does more than lead to wasteful lawsuits. It busts up communities, destroying the institutions that stand between individuals and the state. We long ago told workers to forget about unions, that they can substitute bureaucrats and lawsuits for the give and take of collective bargaining. Now we're telling people like the health-care entrepreneur that they cannot create small businesses that reflect their most deeply held beliefs and hire employees who want to work in an atmosphere that expresses those ideas and values.
Anti-harassment law says, in effect, that every workplace must be homogenized, conforming to the standards of decorum set by legal intellectuals who may never have worked in a restaurant, on a loading dock, or on the trading desk of a securities firm. The law replaces "notions of acceptable behavior that may prevail in a particular workplace" with notions of acceptable behavior that prevail among legal scholars.
Yet all the while, American intellectuals go around mourning the loss of community. They usually blame capitalism. Its dynamic processes do break up established institutions, but they also create new ones, adapted to changed circumstances. No communitarian intellectual showed up at Heflin's hearing to defend the creation of community within the institutions of capitalism. For that, we had to depend on the self-interested likes of the Rev. Lou Sheldon, which means that the only freedom that got defended was freedom of religion. That freedom is important, but it's only part of the picture.