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
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. *fn1
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." *fn2 "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." *fn3
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). *fn4
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, *fn5 and 8, of the Oregon Constitution, and the First Amendment to the United States Constitution. *fn6
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, *fn7 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 religion" and that "the intensity of uninvited religious proselytizing by [Employer] constituted common harassment and religious discrimination" that was not constitutionally protected. Ibid.
Allowing BOLI's petition for review, this court now holds that the complaint should be dismissed for the reasons that follow.
The primary issues in this administrative review are whether the religious harassment rule, adopted by BOLI for the purpose of implementing ORS 659.030(1), violates Article I, sections 2, 3, or 8, of the Oregon Constitution, or the First Amendment to the United States Constitution; *fn8 and, if not, whether application of that rule to Employer violates any of those constitutional provisions. See ORS 183.482(8)(a), (b) (providing standards of review of a contested case proceeding,
for erroneous interpretation of a provision of law and for impermissible exercise of discretion in violation of constitution). Before reaching those questions, however, the court must consider pertinent subconstitutional issues. Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 687 P.2d 785 (1984).
ORS 659.030(1) provides in part:
"[I]t is an unlawful employment practice:
"(b) For an employer, because of an individual's * * * religion * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment." *fn9
In Sapp's Realty, BOLI adopted the following rule implementing that statute:
"Harassment on the basis of religion is a violation of ORS 659.030. Unwelcome religious advances and other verbal or physical conduct of a religious nature constitute religious harassment when:
"(1) submission to such conduct is made, either explicitly or implicitly, a term or condition of the subject's employment;
"(2) submission to or rejection of such conduct by the subject is used as the basis for employment decisions affecting the subject; or
"(3) such conduct has the purpose or effect of unreasonably interfering with the subject's work performance or creating an intimidating, hostile or offensive working environment." Id. at 79 (emphasis added).
In Sapp's Realty, BOLI also "emphasize[d] that by adopting this test, this [agency] does not mean to state that general
expressions of religious beliefs at the workplace, by themselves, constitute a violation of ORS 659.030." Id. at 80. BOLI also analyzed the constitutional guarantees of free exercise of religion and free speech. Id. at 88-94.
BOLI's rule has been further interpreted in the present case. Four additional aspects of the Sapp's Realty rule, as further developed in this case, bear on the analysis.
(1) The "religious advances" or "other verbal or physical conduct of a religious nature" must be "sufficiently pervasive as to alter the conditions of employment." The employer's conduct will be examined to determine whether, from the objective standard of a "reasonable person," that conduct would actually create an "intimidating, hostile, or offensive working environment."
(2) The conduct must in fact be unwelcome to the employee. As to that factor, the test is subjective.
(3) The unwelcome conduct must have been directed at an employee because of that employee's religion.
(4) Within the meaning of the rule, "religion" for both employer and employee includes nonbelief, as well as belief.
The analysis below will consider BOLI's rule as so interpreted by BOLI.
B. Statutory Authority for BOLI's Rule
The parties do not contend that BOLI lacks authority to promulgate rules *fn10 or that the rule in this case was promulgated in violation of applicable rulemaking procedures. *fn11 However, Judge Edmonds reasoned in his special concurrence below that the statute protects an employee from discrimination based on the employee's religion,
whereas BOLI's rule permits a finding of discrimination when an employee is offended by an employer's expression of the employer's religious beliefs. 120 Or.App. at 285-86, 852 P.2d 859. Employer argues in this court that BOLI has, impermissibly, expanded the coverage of ORS 659.030(1), in three ways. First, Employer argues that the rule is written to cover "harassment" on the basis of religion, whereas the statutory prohibition against discrimination in terms, conditions, or privileges of employment does not include harassment. Second, Employer argues that the statute focuses on protecting the employee, while the rule focuses on conduct of the employer. Third, Employer argues that guarantees of freedom of religion do not protect nonbelief.
Under the applicable standard of review, each of those arguments is flawed. The standard is described in Planned Parenthood, which involved a rule challenge brought under ORS 183.400. This court's Discussion of statutory authority in that context is pertinent in the present contested case proceeding, because Employer's argument is, in effect, that the way in which "the agency has erroneously interpreted a provision of law," ORS 183.482(8)(a), is that "the rule * * * [e]xceeds the statutory authority of the agency," ORS 183.400(4)(b). In Planned Parenthood, this court explained:
"The question, then, is whether [a rule] corresponds to the statutory policy as we understand it. * * *
"To the extent that the rule departs from the statutory policy directive, it 'exceeds the statutory authority of the agency' within the meaning of those words in ORS 183.400(4)(b). 'Authority' in that section cannot be taken to mean only the overall area of an agency's authority or 'jurisdiction,' because that construction would leave rules open to substantive review only for constitutional violations under ORS 183.400(4)(a). In effect, such an interpretation would expand every official's rulemaking power on matters within [the official's] general assignment to the limits of constitutional law, whatever the legislative policy of the statute might be. It would contradict the well-established principle to avoid constitutional holdings until it is clear that the challenged policy indeed has been enacted into law by the politically responsible lawmakers, in this case the Legislative Assembly.
"We do not think [that] this is what the legislature intended in enacting the 'exceeds statutory authority' language of ORS 183.400(4)(b). Rather we agree with [the following statement]:
" 'To resolve whether the challenged rule is within the statutory authority of the agency, this court need only determine whether the rule is within the range of discretion allowed by the more general policy of [the statute at issue].' " 297 Or. at 573-74, 687 P.2d 785.
The court examined the policies expressed in the enabling statute in that case, including the "explicit[ ] * * * aim" of the statute, and determined that the rule in that case violated the agency's rulemaking authority. Id. at 574, 687 P.2d 785. *fn12 Here, however, the rule does not "depart[ ] from the statutory policy directive." Id. at 573, 687 P.2d 785.
With respect to Employer's first argument, "discriminat[ion] * * * in terms, conditions or privileges of employment," ORS 659.030(1)(b), includes the conduct covered by BOLI's rule. As discussed above, BOLI's rule requires all of the following: that the employer's conduct within one of the statutorily protected areas, such as religion, was so pervasive and severe that it altered the employee's working conditions for the worse to the extent that the conduct ...