Meltebeke v. Bureau of Labor and Industries

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 (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.

SUBCONSTITUTIONAL ISSUES

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;8 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, *139for 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 P2d 773 (1990); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 687 P2d 785 (1984).

A. BOLTs Rule

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.”9

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 *140expressions 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 rules10 or that the rule in this case was promulgated in violation of applicable rulemaking procedures.11 However, Judge Edmonds reasoned in his special concurrence below that the statute protects an employee from discrimination based on the employee’s religion, whereas *141BOLI’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. 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.
*142“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.

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 574.12 Here, however, the rule does not “depart!] from the statutory policy directive.” Id. at 573.

With respect to Employer’s first argument, “discrimination] * * * in terms, conditions or privileges of employment,” ORS 659.030(l)(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 created an intimidating, hostile, or offensive working environment when viewed under an objective standard; and that the *143employee actually suffered a detriment as a result of the conduct.

The psychological environment in which a person works is as much a part of working “conditions” as is the physical environment. (That is, the nature, quality, and manner of the relationship with one’s employer is one of the terms, conditions, or privileges of a person’s employment, some of which come within the categories protected by this civil rights statute, such as religion.) The “reasonable person” or objective standard contained in BOLI’s rule is designed, at least in part, to ensure that there is objective evidence on which to base a finding of an actual alteration of those working conditions before BOLI will find a violation of the rule. The rule also requires that the employee have suffered a detriment — in other words, was discriminated against in those terms and conditions of employment. See Webster’s Third New Int’l Dictionary 648 (unabridged ed 1993) (“discriminate” means “to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit”).

Employer’s second statutory argument also fails. ORS 659.030(1) focuses on the conduct of others in the workplace, including the employers’ conduct, not just on the protection of employees from discriminatory conduct. ORS 659.030(1) defines as unlawful employment practices certain kinds of conduct engaged in by employers. The statute declares it unlawful “[f]or an employer” to discriminate. The rule in question likewise focuses on employers’ conduct.

As to Employer’s third argument, BOLI’s rule comes squarely within the statutory directive to protect employees from discrimination “because of” the employee’s religion. A causal connection is required by BOLI’s rule. BOLI’s rule, as interpreted in this case, is limited to situations in which the employer’s discriminatory conduct is directed at an employee based on that employee’s religious belief or nonbelief.

The term “religion” in the present context commonly includes a lack of such beliefs, as well as a belief-system of faith or worship practiced by a particular sect. See Salem College & Academy, Inc. v. Emp. Div., 298 Or 471, 489, 695 *144P2d 25 (1985) (“Religious pluralism is at the historic core of American guarantees of religious freedom” and includes “ ‘persons of all religious denominations, as well as nonbelievers’ ” (quoting Judge Matthew P. Deady speaking at Oregon’s constitutional convention in 1857));13 Dilger v. School District 24CJ, 222 Or 108, 132, 352 P2d 564 (1960) (denial of atheist parent’s right to excuse that parent’s child from religious training “would probably be a violation of the freedom of religion guaranteed by both the Oregon and the United States Constitutions”); see also Epperson v. Arkansas, 393 US 97, 104, 89 S Ct 266, 21 L Ed 2d 228 (1968) (“'The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” (footnote omitted)); Or Const, Art I, §§ 4-7 (no religious test to be required as qualification for office; no money to be appropriated for religious or theological institutions or for religious services in legislature; no religious qualification to be used for witnesses or jurors; oath or affirmation to be administered in manner most consistent with and binding upon conscience of person to whom administered).

There is no indication in ORS chapter 659 that the legislature used the term “religion” in a more restrictive sense when prohibiting employment discrimination on the basis of an employee’s religion. In addition to being enacted against the foregoing background, ORS 659.030(1) covers categories occupied by every person. That is, every person has a race, color, national origin, marital status, and age; likewise, under this broad-brush statute, every person has a religion. All are to be protected from discrimination. Thus, the policy embodied in ORS 659.030(1) is one of prohibiting employment discrimination because of an individual’s religion. BOLI’s rule “corresponds to [that] statutory policy” and is “within the range of discretion allowed by” that policy. See Planned Parenthood, 297 Or at 573-74 (stating those tests just quoted).

*145C. Application of the Rule to the Facts

Employer also argues that, even if the rule is valid because it is within BOLI’s authority, there is insufficient evidence, as a matter of law, to permit BOLI to find as fact or to conclude that a reasonable person with Complainant’s characteristics would have found this work environment to have been intimidating, hostile, or offensive. As did the Court of Appeals, 120 Or App at 276-77 & n 3, we disagree.

A reasonable person could find a work environment to be intimidating, hostile, or offensive in the totality of the circumstances presented here, including the characteristics of Complainant here. Those circumstances also included, it will be recalled, the employer’s

— repeatedly inviting the employee to attend the employer’s church;

— repeatedly telling the employee that he would go to hell because of his personal living situation and because of his nonattendance at church and calling the employee and members of the employee’s family at home, with similar messages;

— telling the employee that a person could not be good at the employee’s work unless the employee was a member of the same generic religious group as the employer and attended church, while informing the employee that the employer wanted to work with someone with a religious preference similar to that of the employer, because such people would not steal at work.

For the foregoing reasons, we conclude that Employer’s subconstitutional arguments are not well taken. We turn, therefore, to the first of his state constitutional claims.

ARTICLE I, SECTIONS 2 AND 3, OF THE OREGON CONSTITUTION

A. The BOLI Rule on Its Face

Article I, section 2, of the Oregon Constitution, provides:

“All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.”

*146Article I, section 3, provides:

“No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience.”

These provisions are obviously worded more broadly than the federal First Amendment, and are remarkable in the inclusiveness and adamancy with which rights of conscience are to be protected from governmental interference. From our current vantage point of a society that is religiously diverse and relatively unconcerned about that diversity, it is difficult to fully appreciate why Oregon’s pioneers approved these broad and adamant protections. However, the history of religious intolerance was fresh in the minds of those who settled Oregon, many of whom themselves represented relatively diverse religious beliefs. Reporting on 300 years of governmental intolerance enforced by criminal laws in England, Judge Stephen summarized:

“I may observe in general that all opinions except those which were regarded as strictly correct, were pretty impartially punished. It was as dangerous to believe too much as not to believe enough — to be a Roman Catholic priest as to be a publisher of fanatical pamphlets.” Sir James Fitzjames Stephen, II History of the Criminal Law of England, 426 (Macmillan ed 1883).

Under the criminal laws reported by Stephen, a person was fined for not attending the “Established Church” and imprisoned for attending “conventicles,” or meetings, of any other persuasion. The last of these governmental acts of intolerance were not repealed until 1844, well into Queen Victoria’s reign, id. at 483, just two years before the Oregon country became territory of the United States by an 1846 treaty between England and the United States. In fact, the law imposing a fine for failing to attend the “Established Church” was not repealed until 1846. Ibid.

The text of Article I, sections 2 and 3, and some of the historical circumstances surrounding its adoption, have been discussed in this court’s case law. A starting point for examining the case law pertaining to those provisions is Salem College. In Salem College, this court considered the constitutionality of laws that exempted certain religious organizations, but not others, from taxation to fund unemployment *147benefits for their workers. The court came to two central conclusions, the first of which is pertinent to the resolution of this case.

This court concluded, first, that the free exercise of religion and rights of conscience under Article I, section 2, of the Oregon Constitution, do not relieve religious schools from paying payroll taxes for unemployment insurance pursuant to a general statutory scheme imposing taxes for such insurance. Salem College, 298 Or at 489. The unemployment insurance statutes are not based on the religious character of the employing entity. Id. at 486. The court expressly rejected the formula suggested in that case of requiring a “compelling” state interest to be shown to validate the tax. Id. at 492. A court need not weigh the nature or degree of the state’s interest to permit the regulation and participation of all employers, including religious organizations, in an unemployment insurance system. Ibid.14

This court in Salem College said several additional things of note. As stated earlier, that opinion implied that the prevailing view at the Oregon constitutional convention was that equal constitutional tolerance for various religious beliefs extends to religious believers and nonbelievers alike. Id. at 489. This court quoted with apparent approval from the Court of Appeals’ decision in that case to the effect that the legislature cannot “infring[e] on the right of citizens to develop, independently, their own set of beliefs” or “discour-ag[e] the multiplicity of sects.” Ibid, (quoting Salem College & Academy, Inc. v. Emp. Div., 61 Or App 616, 628, 659 P2d 415 (1983)). The court followed through on that point by stating that, if a statutory exemption were to choose among religions or religious organizations, then all religions are not *148equally “secure” to exercise their rights under Article I, sections 2 and 3. In such a case, the state may not excuse its uneven conduct by asserting “ ‘compelling’ interests in order to discriminate between otherwise indistinguishable religious activities by their sectarian affiliations.” Id. at 492.

This court ultimately upheld the statutory scheme to permit taxation of all schools, including religious schools of all types, and held that the statute, so interpreted, does not contravene Article I, sections 2 and 3, of the Oregon Constitution. Id. at 495.

Under Salem College, a general statutory scheme regulating employers, such as the unemployment compensation program, is not subject to a valid challenge based on Article I, sections 2 and 3. In this case, the general regulation of employment discrimination is such a scheme. ORS chapter 659 and its implementing rules prohibit employers from treating employees in a discriminatory manner because of listed factors (such as race, sex, religion, and age) that generally are unrelated to job qualifications and work performance.

A general scheme prohibiting religious discrimination in employment, including religious harassment, does not conflict with any of the underpinnings of the Oregon constitutional guarantees of religious freedom identified in Salem College'. It does not infringe on the right of an employer independently to develop or to practice his or her own religious opinions or exercise his or her rights of conscience, short of the employer’s imposing them on employees holding other forms of belief or nonbelief; it does not discourage the multiplicity of religious sects; and it applies equally to all employers and thereby does not choose among religions or beliefs.

The law prohibiting religious discrimination, including religious harassment, honors the constitutional commitment to religious pluralism by ensuring that employees can earn a living regardless of their religious beliefs. The statutory prohibition against religious discrimination in employment and, in particular, the BOLI rule at issue, when properly applied, will promote the “[njatural right” of employees to “be secure in” their “worship [of] Almighty God *149according to the dictates of their own consciences,” Or Const, Art I, § 2, and will not be a law controlling religious rights of conscience or their free exercise.

The next case to arise under Article I, sections 2 and 3, added something to the state constitutional analysis. In Smith v. Employment Div., 301 Or 209, 721 P2d 445 (1986), vacated and remanded on other, unrelated grounds, 485 US 660, 108 S Ct 1444, 99 L Ed 2d 753 (1988), Smith was denied state unemployment benefits after he was fired from his job as a drug counselor for using peyote in disregard of his employer’s express requirement that he be drug free. He asserted that the use was a religious practice. That use also violated a state criminal law, but the decision was about Smith’s disqualification for unemployment benefits because of job-related misconduct. The validity of the discharge was not at issue; only the constitutionality of the denial of unemployment benefits was before the court. This court held that there was no state constitutional violation, reiterating the salient portions of Salem College to the effect that the law denying unemployment benefits for a misconduct-based discharge is part of a general regulatory scheme and is “completely neutral toward religious motivations for misconduct.” Smith, 301 Or at 215.

The Smith court then stated that, “[a]s long as disqualification by reason of the religiously based conduct is peculiar to the particular employment and most other jobs remain open to the worker, we do not believe that the state is denying the worker a vital necessity in applying the ‘misconduct’ exception of the unemployment compensation law.” Id. at 216. That passage appears to mean that the application of a neutral law to misconduct that is being justified as a religious practice does not burden the actor’s religious freedoms unconstitutionally where such application does not foreclose the actor’s enjoyment or exercise of that religious practice. Smith thus reinforced the position announced in Salem College: A law that is neutral toward religion or non-religion as such, that is neutral among religions, and that is part of a general regulatory scheme having no purpose to control or interfere with rights of conscience or with religious opinions does not violate the guarantees of religious freedom in Article I, sections 2 and 3.

Smith also went further than Salem College, which did not involve a religious practice. The element that Smith *150added to Salem College — the denial of a challenge to a neutral law that, under certain factual circumstances, has an impact on a religious practice — is crucial in the context of this case.15

We conclude that, under established principles of state constitutional law concerning freedom of religion, discussed above, BOLI’s rule is constitutional on its face. The law prohibiting employment discrimination, including the regulatory prohibition against religious harassment, is a law that is part of a general regulatory scheme, expressly neutral toward religion as such and neutral among religions. Indeed, *151its purpose is to support the values protected by Article I, sections 2 and 3, not to impede them.

B. The Reach of the BOLI Rule

The statute empowers the agency to punish on-the-job discrimination that is based on religion; it does not empower agency prohibition or punishment of on-the-job religious practices. Discrimination is the key, that is, discrimination that is not itself protected by the state constitution.

In the present case, Employer raised an affirmative defense, based on the rights of conscience and religious practices guaranteed by Article I, sections 2 and 3, to excuse violation of the BOLI rule. Employer argued that his conduct was constitutionally privileged even if it violated a statutorily authorized rule that is constitutionally valid on its face. BOLI found, at least implicitly, that Employer’s conduct,16 which violated its rule, constituted a religious practice. BOLI found expressly that Employer had no knowledge that his religious practice created an intimidating, hostile, or offensive working environment. The question is whether Employer is entitled under that circumstance to prevail on his defense.

Smith contains an additional — if less explicit — requirement: A person against whom a sanction is to be imposed for conduct that constitutes a religious practice must know that the conduct causes an effect forbidden by law. In Smith, this court regarded it as significant that Smith had received a memorandum from his employer stating its policy against employees’ use of drugs and had been told by his employer that ingestion of peyote would result in his termination as a drug counselor. 301 Or at 211-12. The court noted that Smith knew that he was ingesting peyote and knew that he was violating his employer’s work rule (although there is no indication whether he knew that his conduct had a particular legal significance under the unemployment compensation law). Id. at 215-16.

*152In the present case, BOLI requires for a violation of its rule that the employer act because of the employee’s religion or nonreligion. However, BOLI has declined to include any subjective component related to the employer within its anti-harassment rule where the conduct of the employer constitutes a religious practice. Rather, BOLI’s objective standard imposes liability when an employer should have known that its conduct causes a specified forbidden effect, whether or not the employer actually did know.17 Under the reasoning of Smith, more is required. When a person engages in a religious practice, the state may not restrict that person’s activity unless it first demonstrates that the person is consciously aware that the conduct has an effect forbidden by the law that is being enforced. (That principle does not mean that the state must show that the person understands the legal conclusion that the activity violates a law or appreciates subjectively or morally that the conduct is wrong.) With respect to an employer whose activity that violates BOLI’s rule constitutes a religious practice, as is the case here, the employer must know that that activity created an intimidating, hostile, or offensive working environment.18 Where religious practice is involved, BOLI’s assertion that state constitutional religious values are adequately protected by using a reasonable person’s perspective and reaction to the activity is erroneous.

The agency’s use of a reasonable person standard to provide some relevant evidence as to an employer’s knowledge that his activity is harming others is, in itself, unremarkable. In its quest for the facts upon which a contested case may depend, an administrative agency need not eschew logic. That is not the problem in this case. The agency expressly found that Employer did not know that his activity *153made the workplace intimidating, hostile, or offensive as to this employee or any employee. That is the operative fact in this case, whether or not a reasonable person might have inferred otherwise. Because sections 2 and 3 of Article I are expressly designed to prevent government-created homogeneity of religion, the government may not constitutionally impose sanctions on an employer for engaging in a religious practice without knowledge that the practice has a harmful effect on the employees intended to be protected. If the rule were otherwise, fear of unwarranted government punishment would stifle or make insecure the employer’s enjoyment and exercise of religion, seriously eroding the very values that the constitution expressly exempts from government control.

CONCLUSION

Fairly read, BOLI’s revised final order found that Employer’s actions, in violation of its rule, constituted a religious practice.19 BOLI also expressly found that Employer did not know that his conduct created an intimidating, hostile, or offensive working environment. That being so, Employer established an affirmative defense under Article I, sections 2 and 3.20

BOLI’s rule, challenged in this case, does not exceed the scope of the authorizing statute. The facts found by BOLI permitted it to conclude that Employer’s conduct violated the rule. On its face, the challenged rule does not offend Article I, sections 2 or 3, of the Oregon Constitution, in the manner argued by Employer. However, the rule offends Article I, sections 2 and 3, by not requiring that BOLI find that Employer knew in fact that ids actions in exercise of his religious practice had an effect forbidden by the rule.

The decision of the Court of Appeals is affirmed. The revised final order of the Bureau of Labor and Industries is *154reversed, and the case is remanded to that agency with instructions to dismiss the complaint.

Relevant constitutional provisions are set out in the discussion below.

An anti-discrimination statute was first enacted in Oregon Laws 1947, chapter 508, many years earlier than Congressional adoption of the Equal Employment Opportunity Act. The stated purpose was to “safeguard [the] right to obtain and hold employment without discrimination.” Id. at § 1. Such discrimination was declared an unlawful practice in words nearly identical to the present statute by Oregon Laws 1949, chapter 221, section 5.

See ORS 659.103 (granting very broad rulemaking authority to BOLI).

ORS 183.355(5) provides in part that, “if an agency, in disposing of a contested case, announces in its decision the adoption of a general policy applicable to such case and subsequent cases of like nature the agency may rely upon such decision in disposition of later cases.” Accordingly, the method used by BOLI to announce the challenged rule in the course of exercising its adjudicatory authority in Sapp’s Realty was permissible. See Trebesch v. Employment Division, 300 Or 264, 267-70, 710 P2d 136 (1985) (discussing when method may be used); Marbet v. Portland General Electric, 277 Or 447, 461, 561 P2d 154 (1977) (citing the quoted statute and holding that method may be used).

PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), does not provide the appropriate framework for the issue presented. In PGE, the question was whether the express terms of a statute conflicted with the agency’s rule; the court had to interpret what the legislature meant by that specific statute. Here, instead, the question is whether the agency’s rule is within the broad, general delegation for rulemaking. In other words, PGE sets a method of analysis for situations in which the court is asked to interpret what the legislature has specified directly. Here, the court is asked instead to interpret what the legislature has specified in generalities, indirectly; the question is the scope of a broad delegation to an administrative agency for rulemaking. See Springfield Education Assn. v. School Dist., 290 Or 217, 226-35, 621 P2d 547 (1980) (describing different kinds of legislative delegation to agencies and discussing whether an agency’s interpretation coincides with the legislative policy that inheres in the meaning of the statute).

Nonetheless, the result would be the same using the PGE methodology. The text of ORS 659.030(1), read in context, covers the kind of conduct prohibited by BOLI’s rule. See PGE, 317 Or at 610-12 (text and context are first level of analysis; no resort to legislative history or maxims of construction if first level clearly discloses legislative intent). Religious discrimination in “conditions” of employment includes acts of religious harassment.

Oregon’s territorial legislature enacted Sunday closing laws but exempted from them those who celebrated a different “Sabbath” day. When the state constitution was drafted, it protected religious “opinions” and “rights of conscience.” Or Const, Art I, § 3 (quoted post).

The Salem College court’s second main conclusion was that, if the state elects to exempt religious schools from paying into the unemployment insurance system, then Article I, sections 2 and 3, of the Oregon Constitution, prohibit the state from discriminating among similar religious schools by virtue of their differing structural relationship with a church or other religious organization. 298 Or at 489. Referring to the proceedings of the Oregon constitutional convention, the court asserted that religious pluralism is at the core of America’s and Oregon’s guarantees of religious freedom and concluded, accordingly, that equality among the various “faiths and kinds of religious organizations” is implicit in Article I, sections 2 and 3. Id. at 488-89,492,495. That conclusion is not directly relevant to the resolution of this case, because the BOLI rule at issue treats all forms of religious belief and nonbelief in the same way.

This court has decided two additional cases under Article I, sections 2 and 3, but they are off the point of the issue before us.

In Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 723 P2d 298 (1986), appeal dismissed 480 US 942 (1987), this court analyzed the constitutionality of a statute prohibiting public school teachers from wearing “any religious dress.” The court upheld the statute after construing it to prohibit only the wearing of religious dress as a regular or frequently repeated practice while teaching in the public school. 301 Or at 381. Unlike the unemployment compensation law considered in Smith, the statute at issue in Cooper was “not a general regulation, neutral toward religion on its face and in its policy”; instead, the statute “single[d] out a teacher’s religious dress because it is religious and to the extent that its religious significance is apparent.” Id. at 368-69. In addition to limiting directly a religious practice, the statute in Cooper did not apply equally to all religions, but had an impact on only those religions whose practices prescribe the wearing of religious dress (such as but not limited to the Sikh teacher in Cooper, certain Islamic adherents, traditional Jews, and certain Roman Catholic priests and nuns). Id. at 360, 369, 371-72. The BOLI rule at issue here does not expressly or necessarily limit any religious practice, and it does not discriminate among religions. Accordingly, Cooper does not provide guidance here.

BOLI relies on Cooper in the present case, but misses its point about the circumstances under which a governmental restriction on governmental conduct may be permitted. Cooper is a case of an agent of the government dramatically espousing a specific religious belief to an audience made captive by other acts of the government. It is about the government restricting itself from such advocacy by restricting its agent while acting in an official, governmental capacity. But in this case, there is no overt religious symbolism expressed or supported by the government. In Cooper, the prohibition was upheld because it could be limited to “actual incompatibility with the [public school] teaching function.” Id. at 378.

In Employment Div. v. Rogue Valley Youth for Christ, 307 Or 490, 770 P2d 588 (1989), this court considered a challenge to a statute requiring religious organizations that were not churches to pay unemployment compensation taxes. A local organization claimed that it was constitutionally exempt from paying taxes because of its religious purpose. The court construed Oregon’s unemployment compensation taxation scheme so as to treat all religious organizations equally and, as so construed, upheld it. Id. at 499. Before that construction, the statute in that case could be read to discriminate among types of religious organizations. By contrast, here, the challenged BOLI rule does not differentiate among religions. Therefore, Rogue Valley is not on point.

Here, BOLI has applied the Sapp’s Realty rule to a situation in which the conduct in question was engaged in by the employer personally. We need not and do not consider how to analyze a situation in which an employee seeks to impose vicarious liability for the conduct of persons other than the employer (such as coworkers).

The agency bases its decision on the proposition that the moral comments, expressions, and invitations in this case were such that a reasonable person “would know or should know” they would offend workers.

Employer argues that BOLI must find that such an employer intended to create an intimidating, hostile, or offensive working environment or, in the alternative, that BOLI must find that the employee placed the employer on notice by complaining explicitly to the employer. Those are two possible ways to demonstrate that an employer knew that its conduct created an intimidating, hostile, or offensive working environment, but they are not the only two ways that such knowledge may be proved, either directly or circumstantially. We decline to limit the means by which such knowledge may be proved by BOLI or gained by the employer.

Conduct that may be motivated by one’s religious beliefs is not the same as conduct that constitutes a religious practice. The knowledge standard is considered here only in relation to the latter category. In this case, no distinction between those categories is called into play, because a fair reading of BOLI’s revised final order is that BOLI found that all of Employer’s religious activity respecting Complainant is part of Employer’s religious practice.

Because Employer obtains complete relief under Article I, sections 2 and 3, of the Oregon Constitution, we need not consider his remaining constitutional arguments.