specially concurring.
The lead opinion holds that petitioner was deprived of his rights of freedom to worship and freedom to express religious opinion under Article I, sections 2 and 3, of the Oregon Constitution by the Bureau of Labor and Industries’ (BOLI) sanction. Although I concur that petitioner’s right to express his religious opinion was unconstitutionally interfered with when BOLI fined him $3,000 for expressing his beliefs to his employee, I write separately to express my differences with the lead opinion’s analysis.
The lead opinion says much that is unnecessary and much that should concern all people about BOLI’s infringement on their right to express themselves concerning religious matters in the workplace. The constitutional guarantee of the freedom to express beliefs about religious subjects, whether those expressions encompass atheistic, agnostic or a particular religion’s viewpoints, must be preserved as *283intended by the founding fathers.1 However, in this case, we should not reach the constitutional issue.2 BOLI’s sanction is for conduct that is not prohibited under ORS 659.030(l)(b). That statute makes it unlawful “to discriminate’ ’ on the basis of an employee’s religion, “in compensation or in terms, conditions or privileges of employment.”3 The statute affords an individual protection from discrimination on the basis of that individual’s religion.4 BOLI’s rule, however, makes “religious advances” an unlawful employment practice when they have the effect of creating an intimidating, hostile or offensive environment from the perspective of a reasonable employee. BOLI’s rule and its application of that rule do not grasp the focus of the protection under the statute.
First, BOLI’s rule exceeds the rule-making authority granted to it by ORS 659.030(1)(b). The statute affords protection from discrimination in compensation, terms, conditions or privileges of employment on the basis of the employee’s religion, race, sex, color, national origin, marital status or age. Discrimination for other reasons does not fall within the proscription of the statute. BOLI has no authority to expand the protection of the statute by rule. U. of O. Co-Oper. v. Dept. of Rev., 273 Or 539, 542 P2d 900 (1975). BOLI’s *284rule makes expression of religious opinion unlawful even though an employer does not discriminate because of the employee’s religion. Under the rule, an employer commits an unlawful employment practice if the employer merely expresses religious opinions to the employee to the extent that the employee considers the statements offensive. That enlargement of the coverage of the statute is without authority and renders the rule unlawful.
The lead opinion says such religious advances “constitute discrimination when the employer’s motivation for making those advances is that the employee’s religious beliefs are different than the employer’s.” 120 Or App at 278. That interpretation ignores the plain language of the statute, which requires discrimination based on an “employee’s” religion. The statute does not make religious advances actionable when the employer and the employee hold different religious beliefs and the employer chooses to express his belief. Moreover, if it did prohibit an employer from expressing his religious opinions when an employee held different religious beliefs, it would violate Article I, section 2 and 3. Those provisions are based on the notion that individuals are entitled to hold different religious beliefs and to express their opinions about those beliefs without constraint by the government.5 If possible, we are required to give statutes a constitutional construction. Anderson v. Alexander, 191 Or 409, 229 P2d 633, reh den 230 P2d 770 (1951). The lead opinion’s construction of BOLI’s rule would render ORS 659.030(l)(b) constitutionally invalid.
The dissent says that “freedom from religion is as important as freedom to practice religion” and that “freedom from religion is entitled to the same level of constitutional, statutory and administrative protection in the workplace.” 120 Or App at 293. (Emphasis in original.) The dissent is wrong. Although the expression of religious beliefs by an employer may require some accommodation for the beliefs of employees,6 there is no generalized constitutional right to be *285free from religious expression in the workplace. Apparently, the dissent would sanitize all religious expression from the workplace if the expression annoyed a worker. That proposition cannot be constitutional. ORS 659.030(l)(b) does not protect an employee from religion but rather from discrimination based on the employee’s religious beliefs. The focus of the statute is on discrimination because of those beliefs. In contrast, the focus of the rule is on the nature and extent of the employer’s expression. The statute does not prohibit an employer from expressing religious opinions. It is the difference in focus that causes the rule to be an unlawful enlargement of the statute.
Second, BOLI’s finding, that the employee was discriminated against because of his religion, is not supported by substantial evidence.7 BOLI found that petitioner’s conduct “was directed at [employee] because of [employee’s] religious beliefs.” However, BOLI’s findings about the employee’s religious beliefs are:
“12) During times material, Complainant did not go to church. He attended Sunday school when he was ‘very little, ’ and went to kindergarten in a church. He sometimes went to church on Christmas Eve with his mother. He had not gone to church regularly since he was in kindergarten.”
Notably missing is a finding that the employee had a religious belief that caused petitioner to discriminate against him. Instead, BOLI’s findings focus on the nature and extent of petitioner’s religious beliefs. In fact, the Board’s findings indicate that, other than the invitations to church, the majority of petitioner’s comments were directed at the employee’s way of life. A “way of life” is not entitled to the status of a “religious belief’ if based on only secular considerations. Christofferson v. Church of Scientology, supra n 1, 57 Or App at 240.
Even if the rule is a valid exercise of BOLI’s delegated authority, ORS 659.030(l)(b)’s prohibition against religious discrimination requires more than what occurred here. It *286makes unlawful, discrimination that results from harassment8 because of the employee’s beliefs, not the employer’s. The fact that the employee took offense9 to petitioner’s repeated invitations to attend petitioner’s church and the expression of petitioner’s religious opinions is not tantamount to discrimination because of the employee’s religious beliefs. For an unlawful employment practice to have occurred, BOLI must have found that the employee was harassed because of his religious beliefs. Petitioner was not even aware that his statements were offensive to the employee, because the employee did not express those sentiments to him. There is no evidence to support BOLI’s conclusions.
Third, BOLI analogized the instant situation to a work environment involving sexual harassment. To find a hostile environment, BOLI had to find that the religious enmity, because of the employee’s religious beliefs, was pervasive and exceeded casual comments or sporadic conversation.10 See Snell v. Suffolk County, 782 F2d 1094, 1103 (2d Cir 1986). The absence of any evidence that the statements were offensive because of the employee’s religious beliefs or that the employee expressed to petitioner that he was offended by the statements, makes it impossible to determine if a hostile environment existed.
Moreover, BOLI’s conclusion that a hostile environment existed is inconsistent with its own findings. BOLI *287found that petitioner never criticized any religion or used religious slurs, that petitioner was being obedient to the “basics” of his religious beliefs when he “witnessed” to the employee and that not to do so would have violated those beliefs, and that he discharged the employee because of poor work performance. Also, there is no evidence that petitioner’s statements were so unreasonably intimidating, hostile or offensive so as to pollute a healthy working environment with discrimination, destroy the emotional and psychological stability of minority group workers or adversely affect a reasonable employee’s ability to perform the tasks required by the employer.11 See, e.g., Man-of-Jerusalem v. Hill, 769 F Supp 97, 101 (EDNY 1991). BOLI’s findings are not supported by substantial evidence nor do its conclusions follow from the findings that it did make.12
Should we reach the constitutional issue, then I differ with the lead opinion’s analysis. What is at stake here is the right of an employer to express religious opinions in the workplace, a right guaranteed by both the Oregon and the federal constitutions. To be constitutional, a law must accommodate both the employer’s right to express religious beliefs as well as the employee’s right to not be discriminated against *288because of the employee’s religious beliefs. Under the lead opinion and BOLI’s rule, there is no accommodation, and when the lead opinion says that “BOLI’s rule can be enforced without burdening religious freedom * * it is plainly wrong. 120 Or App at 280.
ORS 659.030(l)(b) requires that an employee must have been discriminated against in the terms or the conditions of his employment because of his religious beliefs before there is a violation. The statute extends to the workplace and carries out the protection contemplated by the constitutional provisions regarding freedom of religion: that an employee not be discriminated against because of his religious beliefs. Although ORS 659.030(l)(b) protects an employee’s religious expression and belief, BOLI’s rule restricts the expression by an employer of his religious belief. It broadly defines religious harassment to include “religious advances.” “Religious advances” necessarily includes religious expression and, therefore, the rule directly targets religious expression. The lead opinion says that BOLI’s rule is not subject to a facial attack. 120 Or App at 280. If a statute or rule burdens religious expression on its face, as this rule does, that assertion cannot reasonably be made.13 Moreover, it would be difficult to convince petitioner that a $3,000 fine imposed under the rule does not directly burden his religious expression. Because the rule makes some religious expression an unlawful employment practice, it implicates Article I, section 3.
Article I, section 3, provides:
“No law shall in any case whatever control the free exercise and enjoyment of religeious [sic] opinions or interfere with the rights of conscience.”
In Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 371, 723 P2d 298 (1986), appeal dismissed 480 US 942 (1987), the court emphasized the importance of section 3:
“The religion clauses of Oregon’s Bill of Rights, Article I, sections 2, 3, 4, 5, 6 and 7, are more than a code. They are *289specifications of a larger vision of freedom for a diversity of religious beliefs and modes of worship and freedom from state-supported official faiths or modes of worship. The cumulation of guarantees, more numerous and more concrete than the opening clause of the First Amendment, reinforces the significance of the separate guarantees.”
At issue in Cooper was a law that prohibited religious dress while performing public school teaching duties. The court said:
“The law here at issue is not a general regulation, neutral toward religion on its face and its policy, like the unemployment benefits standards that we sustained against attack under the Oregon Constitution (though not under the First Amendment) by claimants who had been discharged for religiously motivated conduct in Smith v. Employment Division, [301 Or 209, 721 P2d 445 (1986), vacated and remanded sub nom, Employment Div. v. Smith, 485 US 660, remanded to Employment Appeals Board, Smith v. Employment Division, 307 Or 68, 763 P2d 146 (1988), rev’d and remanded, Employment Div. v. Smith, 494 US 872, on remand, Smith v. Employment Div., 310 Or 376, 799 P2d 148 (1990),] and Black v. Employment Division, 301 Or 221, 721 P2d 451 (1986). The cases would be comparable if a school regulation prescribed how teachers should dress while on duty without taking account of religious considerations. Then we would have only an issue of statutory authority to make such a regulation, see Hysong v. Gallitzin School Dist., 164 Pa 629, 30 A 482 (1894); Neuhaus v. Federico, 12 Or App 314, 505 P2d 939 (1973), and an individual claim to exemption on religious grounds. * * * But ORS 342.650 is not neutral toward religion. On the contrary, the religious significance of the teacher’s dress is the specific target of this law. The law singles out a teacher’s religious dress because it is religious and to the extent that its religious significance is apparent when the wearer is engaged in teaching. The issue therefore is whether the law infringes the right guaranteed to ‘all men’ by Article I, section 2 of the Oregon Constitution ‘to worship Almighty God according to the dictates of their own consciences,’ or ‘controls] the free exercise, and enjoyment of religious opinions or interfere [s] with the rights of conscience’ contrary to Article I, section 3.” 301 Or at 368. (Emphasis supplied.)
By that language, the court drew a distinction between laws like ORS 659.030(l)(b), which regulate conduct *290and do not specifically target religious expression, and laws like BOLI’s rule, which directly limit the expression of religious beliefs.
In Cooper, the court said:
“Thus, a law restricting dress specifically for being ‘religious dress’ cannot stand as a regulation of ‘conduct’ rather than ‘belief or ‘worship.’ If such a law is to be valid, it must be justified by a determination that religious dress necessarily contravenes the wearer’s role or function at the time and place beyond any realistic means of accommodation.” 301 Or at 372. (Emphasis supplied.)
Cooper teaches us that, for BOLI’s rule to be constitutional, it must accommodate petitioner’s religious expression in the light of his responsibility to provide a nondiscriminatory workplace.14 Although the Cooper rule requires accommodation, the lead opinion’s analysis grants BOLI a license to restrict expression under the cloak of an overriding governmental interest. It views BOLI’s rule as an indirect regulation of conduct and not a direct regulation of expression. That causes it to mistakenly rely on the “least restrictive means” test in Employment Div. v. Rogue Valley Youth for Christ, 307 Or 490, 770 P2d 588 (1989). There, the court interpreted a law that was not specifically directed at religious expression. BOLI’s rule is more like the statute at issue in Cooper. Because the constitutionality of BOLI’s rule is what is at issue and not the constitutionality of ORS 659.030(l)(b), and because BOLI’s rule specifically targets religious expression, we must exercise great caution in any leeway that is granted to circumscribe what is protected under Article I, section 3.
According to the tenor of its arguments, BOLI’s objective is to protect the workplace environment from an employer’s expression of religious advances when that expression is offensive to a “reasonable employee.”15 BOLI’s *291rationale equates religious advances, made by an employer to an employee, with sexual harassment. Religious advances or expression are protected expressly and require accommodation under the constitution. Sexual harassment is a form of discrimination that occurs because of an employee’s gender. It has no constitutional protection. The comparison is untenable. Although BOLI’s rule would permit limited sporadic religious advances, the effect of such a rule is that the extent of an employer’s religious expression is controlled by the government’s enforcement of a standard imposed by a “reasonable” employee. The “reasonable” employee standard is not synonymous with the scope of protection afforded by the constitution. The standard will vary depending on the religious beliefs of a “reasonable” employee as envisioned by BOLI. That cannot be the law.16
The lead opinion encourages BOLI’s pursuit, saying that, “[ajlthough we conclude that BOLI cannot constitutionally apply its rule to petitioner, the rule is not invalid, because it has other constitutional applications and is not facially void.” 120 Or App at 280. I am persuaded that religious expressions of the kind here can never be constitutionally censured in the workplace because they are protected under both constitutions.
The constitutional guarantee of freedom of such expression means little if the government can promote an overriding interest, as the lead opinion suggests, in order to restrict or eliminate without accommodation what otherwise is guaranteed, simply because it occurs in the workplace. If we reach the constitutional issue, we should hold that BOLI’s present rule exceeds constitutional bounds, because it fails to accommodate an employer’s expression of religious belief or opinion. Petitioner asked his employee to go to his church and *292told the employee about his beliefs. He did not discriminate against the employee because of the employee’s religion. On those facts alone, no administrative rule can lawfully prohibit such expression, because it is clearly protected under section 3 and, therefore, requires accommodation.17
This case is not about the protection of an employee from discrimination because of his religious beliefs. This case is about an employee who took offense because of his employer’s expression of his religious beliefs. No one questions that the state has a legitimate interest in protecting employees from discrimination, but no discrimination occurred here. ORS 659.030(l)(b) is intended solely to protect an employee from discrimination because of his religious beliefs. It is consistent with the axiom that a valid governmental purpose “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 US 479, 488, 81 S Ct 247, 5 L Ed 2d 231 (1960). BOLI’s rule and the lead opinion’s endorsement of it turn the statute on its head to give the state a sword, not against the evil of discrimination, but against all employers who dare to express their own religious beliefs in the workplace.
The framers of the constitution would shudder if they were aware of BOLI’s effort to erode the right to express religious opinions. Based on the history of governmental infringement of religious expression, they founded our nation and our state on the principles of freedom of speech and of religious expression and practice. Those rights are not forfeited in the workplace. See Merrick v. Board of Higher Education, 116 Or App 258, 841 P2d 646 (1992). Whether some kinds of religious expression lose their protection under the constitution because they constitute “discrimination” in the work place under ORS 659.030(l)(b), can only be decided *293on a case by case basis, because of the guarantees of freedom of speech and religious practice. BOLI’s rule and its application to the facts of this case constitute a grave encroachment on rights that the citizens of our country have enjoyed for over two hundred years. I will not join in encouraging the wholesale “chilling” of those rights.
While the employer in this case is an Evangelical Christian, the belief in a traditional, or any, “God” is not a prerequisite to a finding that a belief is religious. Christofferson v. Church of Scientology, 57 Or App 203, 240, 644 P2d 577, rev den 293 Or 456 (1982), cert den 459 US 1206 and 459 US 1227 (1983).
If a case can be decided on a different basis, we are required to refrain from making a constitutional holding. Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564, 687 P2d 785 (1984). In Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989), the court said:
“Avoiding needless constitutional rulings is not a technical nicety of judicial etiquette. If there is no duty to decide the constitutionality of a law, there is a duty not to decide it.” 307 Or at 680 n 4.
ORS 659.030(l)(b) also protects an individual from discrimination because of the religion of any other person with whom the individual associates.
ORS 659.030(l)(b) is patterned after 42 USC § 2000(2)(a)(l) (Title VII). Seitz v. Albina Human Resources Center, 100 Or App 665, 672, 788 P2d 1004 (1990). ORS 659.030 should be interpreted the same way as Title VII. Moreover, relevant federal law should be taken into account. Hillesland v. Paccar, Inc., 80 Or App 286, 294, 722 P2d 1239, rev den 302 Or 299 (1986). Title VII is designed to protect “an imposition on an individual plaintiffs religious beliefs, not the employer’s beliefs.” McCrory v. Rapides Regional Medical Center, 635 F Supp 975, 979 (WD La), aff’d 801 F2d 396 (5th Cir 1986) (emphasis in original); see also E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F2d 610, 620 (9th Cir 1988), cert den 489 US 1077, mod 946 F2d 898 (9th Cir 1991).
The lead opinion, by stating that discrimination occurs when the employer’s motive is that the employee’s religious beliefs are different, misses the possibility that an employer may discriminate against an employee who holds the same religious beliefs.
See E.E.O.C. v. Townly Engineering & Mfg. Co., supra n 4, 859 F2d at 621.
We review the findings of an agency for substantial evidence. ORS 183.482(8)(c). Included within that standard of review is the concept that an agency’s conclusion must reasonably follow from its findings of fact. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981).
The elements of a prima facie case of religious harassment are:
“(1) plaintiff belongs to a protected class; (2) plaintiff was subject to unwelcome religious harassment; (3) the harassment was based upon religion; (4) the harassment affected a term, condition or privilege of employment, and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.”
Vaughn v. AG Processing, Inc., 459 NW2d 627, 632 (Icwa 1990); see also Beasley v. Health Care Service Corp, 940 F2d 1085, 1088 (7th Cir 1991).
BOLI’s findings indicate that the employee expressed his offense to family • members and co-workers but not to petitioner. Moreover, on occasion, the employee’s response to petitioner’s religious advances implied that future advances might be fruitful.
In proving a claim for a hostile work environment due to religious harassment, the plaintiff must show that but for the fact of the employee’s religion, the employee would not have been the object of harassment. Vaughn v. AG Processing, Inc., supra n 8,459 NW2d at 633; Henson v. City of Dundee, 682 F2d 897, 904 (11th Cir 1982) (discussing hostile work environment in sexual harassment claims).
The rationale behind “hostile environment” discrimination is that the statute affords an employee “the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Mentor Savings Bank v. Vinson, 477 US 57, 65, 106 S Ct 2399, 91 L Ed 2d 49 (1986). In this case, the facts do not support the conclusion that petitioner’s religious advances constituted discriminatory intimidation, ridicule, or insult. Moreover, in Weiss v. United States, 595 F Supp 1050, 1056 (ED Vir 1984), the court described what constitutes religious harassment:
“An occasional offensive religious epithet by a co-worker does not necessarily give rise to a Title VII claim against an employer. Nonetheless, when an employee is repeatedly subjected to demeaning and offensive religious slurs before his fellows by a co-worker and by his supervisor, such activity necessarily has the effect of altering the conditions of his employment within the meaning of Title VII.”
This case is factually unlike Ai re Sapp‘s Realty, No. 11-83 (BOLI January 31, 1985), on which BOLI relies. There, BOLI found that the complainant was raised in the Lutheran church and had been confirmed as a Lutheran, that one respondent had made derogatory comments about Protestants and negative comments about the complainant’s Lutheran religion, that the complainant perceived some of the comments to be in the nature of ‘ ‘ridicule,” and that the complainant made it clear to respondent that she did not want to hear him discuss religion. BOLI concluded that the submission to the employer’s religious advances was a condition of the complainant’s continued employment. Moreover, BOLI noted that the employer never claimed that their religious advances were required by their religion.
The lead opinion also says that ‘Ttlhe special concurrence contends that a law that only incidentally burdens religious freedom is not subject to constitutional scrutiny * * 120 Or App at 281. It is not apparent from where that conclusion springs. Regardless, the assertion is mistaken.
When an employer and an employee’s beliefs conflict, the employer may be required to reasonably accommodate the employee’s beliefs such as not requiring the employee to attend office devotional services. See E.E.O.C. v. Townley Engineering & Mfg. Co., supra n 4, 859 F2d at 620.
The dissent would “curb” the religious expression of an employer because “a special relationship of power and necessary subservience exists [between the employer and employee).” 120 Or App at 293. I find it alarming that the dissent *291would hold that an individual loses constitutional rights simply by becoming an employer.
Even if the standard of a “reasonable person” or “reasonable employer” is used, that does not accommodate the constitutional right of employers holding minority religious beliefs under the constitution to express those beliefs. Moreover, such a standard results in the same vice that a “reasonable employee” standard creates, because it imposes shifting constitutional goal posts depending on the hearing officer’s value judgments and what the hearing officer believes a “reasonable employer” would find offensive.
The fact that an employer and an employee may hold and express conflicting religious beliefs does not necessarily make the employer’s expression of his beliefs intimidating, hostile or offensive to those of the employee. See E.E.O.C. v. Townley Engineering & Mfg. Co., supra n 4, 859 F2d at 620. It is only when the employee is treated differently because of his religious beliefs or when his religious beliefs are not accommodated by the employer, does that potential arise. The focus of the inquiry remains whether the employer is treating some people less favorably than others because of their race, color, religion, sex, or national origin. Furnco Construction Corp. v. Waters, 438 US 567, 577, 98 S Ct 2943, 57 L Ed 2d 957 (1978).