[Congressional Record Volume 140, Number 69 (Tuesday, June 7, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 7, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
        SENATE RESOLUTION 219--RELATING TO RELIGIOUS HARASSMENT

  Mr. BROWN (for himself, Mr. Gramm, Mr. Smith, and Mr. Nickles) 
submitted the following resolution; which was referred to the Committee 
on Foreign Relations:

                              S. Res. 219

       Whereas the liberties protected by our Constitution include 
     religious liberty protected by the first amendment;
       Whereas citizens of the United States profess the beliefs 
     of almost every conceivable religion;
       Whereas Congress has historically protected religious 
     expression even from governmental action not intended to be 
     hostile to religion;
       Whereas the Supreme Court has written that ``the free 
     exercise of religion means, first and foremost, the right to 
     believe and profess whatever religious doctrine one 
     desires'';
       Whereas the Supreme Court has firmly settled that under our 
     Constitution the public expression of ideas may not be 
     prohibited merely because the content of the ideas is 
     offensive to some;
       Whereas Congress enacted the Religious Freedom Restoration 
     Act of 1993 to restate and make clear again our intent and 
     position that religious liberty is and should forever be 
     granted protection from unwarranted and unjustified 
     government intrusions and burdens;
       Whereas the Equal Employment Opportunity Commission has 
     written proposed guidelines to title VII of the Civil Rights 
     Act of 1964, published in the Federal Register on October 1, 
     1993, that expand the definition of religious harassment 
     beyond established legal standards set forth by the Supreme 
     Court, and that may result in the infringement of religious 
     liberty; and
       Whereas such guidelines do not appropriately resolve issues 
     related to religious liberty and religious expression in the 
     workplace: Now, therefore, be it
           Resolved, That it is the sense of the Senate that, for 
     purposes of issuing final regulations under title VII of the 
     Civil Rights Act of 1964 in connection with the proposed 
     guidelines published by the Equal Employment Opportunity 
     Commission on October 1, 1993 (58 Fed. Reg. 51266), the 
     Commission should withdraw religion as a category covered by 
     the proposed guidelines, hold public hearings, and receive 
     additional public comment before issuing similar new 
     regulations.

  Mr. BROWN. Mr. President, I appreciate the indulgence of the Chamber. 
I rise to draw attention to a resolution that I submitted today dealing 
with guidelines on harassment in the workplace published by the Equal 
Employment Opportunity Commission on October 1, 1993.
  The Equal Employment Opportunity Commission is charged under various 
civil rights laws with preventing harassment in a variety of areas in 
our working environments, and in the past they have issued an 
established guideline to employers to prohibit harassment of 
individuals based on sex, race, creed, and color. The new guidelines, 
though, involve a different area than has been addressed in the past. 
Among other areas, they specifically deal with religion. And the new 
guidelines are dramatically different than the legal and ethical 
philosophies that have affected this country over its entire history.
  Our history is one of expanding individual freedom, one of expanding 
the right to exercise any religious belief that one may choose. It is a 
history which notes the expansion of individual freedom and rights of 
expression. The new religious harassment guidelines do the opposite.
  For the first time that I am aware of in U.S. history, we will have a 
Government agency act to dramatically suppress the ability of people to 
express their own religious beliefs, even in a way that does nothing 
more than simply indicate their faith or preferences, or otherwise 
celebrate their joy and faith at holidays or other special times. Most 
Members, I suspect, when they hear this, will be surprised and find it 
hard to believe that the Equal Employment Opportunity Commission would 
be acting in such a manner. Yet, what I think has happened here, 
simply, is that the agency has followed the same guidelines that they 
have used to deal with sexual harassment or guidelines similar to those 
that they have used to deal with racial harassment, and tried to make 
them fit into the determination of what constitutes harassment in 
religious area. They simply do not fit.
  What the Commission needs to do is to now withdraw religion as a 
category covered by the proposed guidelines, go back through published 
guidelines, review them in detail, hold public hearings, receive 
additional public comment, and, if it chooses, publish new ones that 
root out religious harassment in the workplace consistent with the 
Constitution, rather than trying to make religion fit in with other 
categories of harassment regardless of their different nature.
  What is involved here is enormously important. Even though it is 
almost hard to believe, literally what the Commission does is establish 
guidelines for the determination of legal liability for employers. They 
require employers to issue their own religious harassment guidelines 
and then expose employers to liability if they do not do so or if any 
alleged religious harassment takes place, regardless of whether the 
employees knew or should have known about the alleged harassing 
conduct.
  What is of such great concern about these new guidelines? Literally, 
the result of their implementation would be the suppression in the 
workplace of individual acts of religious expression, or celebrations 
of religious beliefs. They literally require companies to draft a set 
of religious harassment guidelines, and in the event that guidelines 
are not prominently displayed, or in the event that individual innocent 
acts of religious expression take place, then the employer can be held 
liable.
  What could be these acts of harassment? Literally, the result of 
implementing the guidelines will provide that a whole series of acts of 
simple individual religious expression could well become proof of 
harassment, religious harassment. I do not believe that all Americans, 
regardless of their religious belief or background or lack of religious 
belief or background, think that it is in our country's best interest 
to have guidelines issued that prohibit the wearing of a cross or 
yarmulke, that outlaw a Christmas party, that would prohibit 
celebration of Hanukkah at work--a wide range of things which under the 
guidelines could become proof of harassment.
  By way of example, let me just review briefly some of the things that 
could be used as proof of religious harassment in the workplace. 
Wearing a cross around the neck or wrist or any openly visible part of 
the body; wearing a yarmulke; displaying a picture of Christ on an 
office desk or wall; wearing a T-shirt or hat with any religious 
picture, drawing, phrase, or commentary; having on a desk or wall 
anything that has any religious significance; displaying a Bible or 
other religious book on a desk; making openly visible on display in a 
work or lounge area a work of art or any item of religious 
significance; hosting Christmas, Hanukkah, Thanksgiving, or Easter 
celebrations; parties or celebrations in any form that have any 
religious focus or reference; allowing for opening or closing prayer or 
invocation at a company program, banquet, celebration or event; sharing 
your faith or witnessing the gospel with a fellow employee; speaking 
openly with employees about your religious beliefs; allowing for 
nativity displays or scenes in the workplace during the Christmas 
holiday season.
  I do not know how Members react when they listen to this: ``Oh, come 
on, let us be serious,'' some may say--``Surely no one could suggest 
these actions constitute harassment.'' Still others may say, ``Surely 
no Government agency would decide they want to get involved to prohibit 
these kinds of things from taking place.'' Clearly all of us--or I hope 
all of us--would agree that harassing people is wrong and that 
religious harassment is wrong as well, even if the person genuinely 
intends well. But merely open displays of our religious beliefs, of our 
religious commitments, are quite different.
  Let me draw the Members' attention to something that could be proof 
of harassment of a sexual nature: A calendar with a depiction of a nude 
person on it, displayed openly in an office. That may be interpreted--
and reasonably interpreted by some--as sexual harassment; something 
that could be offensive to the members of the opposite sex. Think, now, 
of the person who, instead of displaying a calendar with a nude person 
on it that could be interpreted as pornographic, displays a calendar 
with a religious figure on that calendar. Sadly, under the proposed 
guidelines it could be treated the same, as proof of religious 
harassment.
  But are they actually offensive? Does anyone really believe that it 
is real proof of harassment to have an office with a religious figure 
shown on a calendar displayed on a desk or wall? Do we really want to 
equate, in Government guidelines, the depiction of a pornographic nude 
photo with a picture of Christ? This is absurd. The guidelines as they 
pertain to religious harassment are idiotic. They have been 
disseminated without public hearings, without a great deal of thought, 
and without a reflection on the impact they can have.
  What we have is a clear attempt to chill religious expression or 
displays of any religious feeling or belief in the workplace--an 
attempt to make the workplace a religion-free zone. None of us wants 
religious harassment to exist or be allowed to take place on the job. 
The EEOC should act in a responsible manner to assure that people in 
the workplace are protected from it. But the proposed religious 
harassment guidelines will unfortunately simply result in efforts to 
outlaw any visible form of religious expression from much of our daily 
lives.
  Some will say that is not possible. No responsible employer would do 
that. But let me remind Members of the legal requirements of the 
proposed guidelines. If an employer fails to set forth guidelines in 
the workplace that restrict these kind of activities, they are subject 
to legal liability--liability imposed on them under title VII of the 
1964 Civil Rights Act because the Commission has come forth with 
mandates through its proposed guidelines that they create religious 
harassment guidelines. ``Well,'' someone would say, ``surely no one at 
all would come up with these kind of guidelines that would prohibit 
this kind of conduct.'' But it is also true because all employers are 
required to create and display religious harassment guidelines.
  By way of example, I would like to read to you a quote from religious 
harassment guidelines already created and put in place by one of 
America's major airlines in response to the EEOC proposed guidelines, 
and I might suggest, in defense of the company that put them out, that 
they were not their ideas. They were simply trying to comply with the 
new EEOC requirements:

       Technical personnel should not possess or display in any 
     manner on premises any material which may be construed by 
     anyone to have racial, religious or sexual overtones, whether 
     positive or negative.

  That is an unfortunately incredible guideline with regard to 
religious beliefs and behavior: Any material construed by anyone to 
have any religious overtones, whether positive or negative. Surely 
America should not become the land of the intolerable. Surely our 
agencies should not become the ``thought police'' and ``religion 
police.'' Surely dissenting and varying ideas have enriched our lives. 
Surely the very fiber of the American freedom is to promote, defend and 
protect people who have ideas they express both overtly and covertly. 
Surely the American psyche is not so fragile that we have to outlaw any 
public and private expressions of faith.
  Mr. President, complaints to the EEOC resulted in fewer than 1.8 
percent of those complaints relating to religion-based complaints. That 
1.8 percent is in the entire category of religious complaints. Of the 
1.8 percent, only a very small portion of those even alleged the 
affirmative conduct of religious harassment. The guidelines are clearly 
over-broad and disproportionate in their effort.
  Mr. President, I am not saying that we should not abandon our 
commitment to prevent workers from having to face harassment on job 
sites, and we should not turn a blind eye to the potential of abuse 
even in the religious area, but these guidelines are so overreaching, 
and are so devastating to our individual freedom of religion and speech 
that they should be rejected.
  I have introduced a resolution today which asks the EEOC to withdraw 
religion as a category covered by the proposed guidelines and issue new 
ones only after they have held public hearings and received additional 
public comment. My hope is that any new proposed guidelines for the 
determination of religious harassment will respect people's right of 
religious liberty, to express religious and political convictions 
without the chilling effect of regulatory intimidation and burdens on 
the workplace.
  I hope the EEOC will withdraw religion as a category covered by the 
proposed guidelines by the close of business today. Also, as I stated 
previously, I hope that any new religious harassment guidelines 
developed by the EEOC respect people's religious beliefs and 
constitutional rights.
  I ask that the Members of this body immediately review the resolution 
to facilitate our acting quickly to make sure our fundamental rights of 
religious freedom and religious expression at work are not destroyed by 
the overzealous proposed guidelines.
  Behind me is a chart that lists over 61 different families religious 
affiliations as embraced by Americans. If an employer is to 
conscientiously fulfill his responsibilities under the EEOC guidelines, 
he must determine what would be considered offensive to some 
combination of almost every one of these 61 groups that are listed, and 
perhaps more as well. And then the employer must use the information 
gained to develop his own religious harassment guidelines. This task 
would be monumental.
  Religious practices vary. The Sabbath is celebrated on Friday by 
some, on Saturday by others, on Sunday by still others. Religious 
holidays abound among these 61 groups. To prohibit the expression, or 
the celebration, or the remembrance of religion in a way that will 
offend no one jeopardizes the freedom of all.
  I hope this Chamber will act quickly on the Brown resolution to 
ensure the continuation of our religious freedoms.

                          ____________________