[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.
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