The Rights of Christians in the Workplace---American Center for …course1.winona.edu/bperatt/personal/Christian/First... · 2003-08-19 · The Rights of Christians in the Workplace---American

The Rights of Christians in the Workplace---American Center for Law and Justice, www.aclj.org

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IN THE WORKPLACE:Fighting Religious Discrimination

What is Religious Discrimination?

Many people are not sure what constitutes religious discrimination in the workplace. There aremany ways to discriminate against people; some are very obvious and others are more subtle.The subtle discriminations are often hard to recognize and harder still t o prove in a religiousdiscrimination claim. Therefore, we will l ook primarily at more outward forms of religiousdiscrimination.

Religious discrimination includes, but is not limited to, the following: firing an employeebecause of that employees’ Christian beliefs; loss of promotion due to one’s Christian witness atwork; failure to give an employee a raise until the employee no longer spends free time (such asbreaks or lunch) discussing religious beliefs with other employees; harassment of employeesbecause they wear religious clothing, such as a Christian shirt or a cross around the neck;continual mocking of a person’s religious convictions or intentionally using offensive languagearound someone in order to mock one’s religious beliefs.

Like sexual discrimination, religious discrimination is often hard to describe and harder still t odefine. This makes it complicated to prove that religious discrimination has occurred. Therefore,I recommend you carefully document any religious discrimination in preparation for a claimagainst an employer. While we as Christians are warned that those who desire to li ve godly li veswill be persecuted, we should also understand that it is against the law in this country for aperson to be refused a promotion or a raise or be fired due to his religious beliefs.

Many Christians are not aware they may have a religious discrimination claim against theiremployer if they have been harassed or fired due to their religious convictions. The EqualEmployment Opportunity Commission (EEOC) is the government agency in charge ofinvestigating claims of racial, sexual, or religious discrimination in the work place. MostAmericans were probably not aware that the EEOC existed until the Clarence Thomasconfirmation hearings. As you will recall , Justice Thomas was the head of the EEOC at one time.

Fili ng A Complaint With The EEOC

Fili ng a complaint with the EEOC can be an effective way to resolve a legitimate religiousdiscrimination claim. Many states have few laws protecting your right to work in adiscrimination-free environment; thus the EEOC is often your only real remedy if you have beendenied a promotion or fired because of your religious beliefs.

The EEOC polices the workplace by enforcing Title VII of the Civil Rights Act of 1964. TitleVII prohibits discrimination based on race, color, sex, religion, or national origin. In order tomake a legitimate discrimination claim under Title VII, several steps must be rigidly followed. Ifany of these steps is not completed within the time frame established by the government, theclaim will be dismissed. These steps are time consuming and will require that you wait patientlyfor the EEOC to evaluate and investigate your claim.


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The process for fili ng a complaint is very tedious. To begin the process, you must file a claimwith either the state or the federal branch of the EEOC. If this step is not followed, you cannotfile a federal lawsuit in a federal district court. In a state where there is an anti-discrimination lawand a state agency authorized to act on your behalf, you must file a complaint with the EEOCwithin 300 days of the discriminatory act. If you file with the state EEOC first, you may requesta review of their decision to the federal EEOC within 60 days. If there is no state agency with theauthority to handle this cause of action, you must file a complaint with the EEOC within 100days of the discriminatory act. Part of the theory behind the short time period for fili ng is thatconstitutional rights violations are so grievous that legitimate complaints will be made quickly.Furthermore, the longer you wait to file a complaint about a discriminatory act, the harder thatact becomes to prove. As more and more time passes, witnesses are harder to locate, witnesses’memories get blurry, or they may lose their motivation to testify against an employer becausethey have been promoted.

At this point, the EEOC will i nvestigate your complaint to determine the validity of the claim.The investigation involves several steps. First, the EEOC will notify your employer or formeremployer concerning the charges you have made against him or her. Then the EEOC will requestinformation about the charges from the employer. Witnesses who have knowledge of thediscriminatory act will be interviewed. If this investigation shows there are reasonable grounds tobelieve a discriminatory act has occurred, the EEOC will notify you and your employer orformer employer.

The EEOC will attempt to persuade your employer or former employer to eliminate voluntarilythe discrimination and correct any actions that have been carried out in violation of Title VII.One remedy could include reinstating you to the position you had or would have had but for thediscrimination. You could also receive lost wages and have lost benefits, such as vacation oreven retirement, restored to you.

If the EEOC finds reasonable cause to believe that your complaint is actionable and all efforts atreconcili ation have proven fruitless, the EEOC may file a lawsuit against the offending party.Within 90 days of receiving a notice of the “right-to-sue” from the EEOC, you must file a privatelawsuit or you will l ose your right to file a legal claim. It is important for you to know that youmust request the “right-to-sue” letter from the EEOC; they will not send it automatically.

Obviously, the EEOC may conclude their investigation by determining that you do not have areasonable ground to file a complaint against your employer or former employer. If this occurs,you do not have the right to bring a claim against your employer or former employer forreligious discrimination.

If you have followed all of these steps, the 1991 Civil Rights Act allows you to request a jurytrial and sue for compensatory and punitive damages. Compensatory damages cover the actuallosses you have incurred as a result of the discriminatory act. Punitive damages are soughtstrictly to punish wrongdoers for their discriminatory act as a way of encouraging them not todiscriminate in the future. To obtain the correct forms for fili ng a complaint with the EEOC, youshould call 1-800-USA-EEOC.


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This is so important that I want to repeat it one more time. Religious discrimination claims arevery serious matters. It is not enough to merely believe you have been discriminated against.Because the charge is so serious, you will be required to prove your claim. So be sure todocument any discriminatory acts that are committed against you in the workplace. Also, youwill find it helpful i f you have other witnesses who heard or saw the discriminatory act aroundwhich your complaint revolves. If that is not possible, you should attempt to find witnesses whohave experienced the same type of discrimination you have alleged in your complaint.

Title VII of the Civil Rights Act was designed to protect you in the workplace. You should nothesitate to contact the EEOC if you can show that the discriminatory act about which you arecomplaining actually occurred. Also remember, this type of action takes a lot of time to workthrough. You will need to be patient while your complaint is processed and resolved.

Unfortunately, religious discrimination is becoming more prevalent in our society. It amazes meto watch a society that claims to believe in total diversity discriminating against Christians inevery arena. Often I meet Christians who have lost their jobs or not been promoted or had theirspeech censored for the sole reason that they were Christians. We are the salt of the earth. Ourlives are a daily reminder to the people around us that there is a God and He cares for all of us.That alone is reason enough to remain in the workplace and not sit back and allow our jobs andour voice to be taken away from us.

As the days grow darker, we must stand in the face of adversity and show forth the glory andmercy of our God. He has set us in this place, at this time, that we might win some to Hiskingdom. When the government has set up an agency such as the EEOC to protect our rights, weshould util ize that tool to benefit the Gospel. For the same reason we go into the courtroom andask a judge to grant us the rights we have been guaranteed under the United States Constitution,we must go to the EEOC and ask them to protect us against discrimination when it occurs. WhenPaul stood before the rulers in Jerusalem, he demanded his rights as a Roman citizen; hedemanded to be brought before Caesar. When we enter a courtroom or petition the EEOC, we areresponding like the apostle Paul.


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CHRISTIAN RIGHTS IN THE WORKPLACEIntroduction by Jay Alan Sekulow

INTRODUCTION

The Great Commission requires believers to spread the Gospel to the four corners of the Earth.Increasingly, people are realizing that this means that we are to be witnesses in our places ofwork. We at The American Center for Law and Justice are being inundated with calls from bothemployees and employers asking what the rules are for sharing one’s faith at work.

There will always be opposition to the spreading of the Gospel. Some in our society wantreligious people to keep their convictions to themselves and leave their religion at home. Thelaw, however, does not require that religious employees and employers check their religion at theoff ice door or the factory gate when they come to work.

Federal and State laws protect the religious freedoms of employees and employers. Employerscan run their business in conformance with godly principles and employees cannot be forced toact in a manner that conflicts with their religious beliefs. For instance, Christian employers mayhold and participate in voluntary chapel services and prayer meetings for employees, andemployees can share their faith with co-workers during breaks or free time so long as it is notdisruptive.

In short, there is no law requiring the workplace to be a religion-free zone. This booklet isdesigned to provide both employees and employers with answers to the question: What does thelaw have to say about religion at work? Do I have to work on Sunday if I think it is a sin? Canmy company employ a full -time chaplain for employees? Do I have to pay union dues if theunion supports homosexual rights? Can the stated purpose of my company be to glorify God?

The answers to these questions and many others are contained in the pages that follow. Theseanswers are based on general legal principles that may or may not apply to any given situation.Because each actual case is unique, the specific facts of each case have a direct impact on itsoutcome. So the answers will give you general guidance, but you need to seek professional legalcounsel to address the specifics of your situation.

For the business world to act ethically and responsibly, it must have access to sound religiousmorali ty through its people in ownership as well as on the work floor. More people are beingmade aware of this truth and have decided that, despite pressure from society, they can no longerkeep their faith a secret while at work. After all , if we have sincerely committed our li ves toGod, how can we leave Him out of the place where we earn our li ving and spend the better partof each day? It is hoped that this booklet will provide business owners and working people witha helpful overview of the law governing religion in the workplace.

Your brother advocating Jesus,

Jay Alan Sekulow


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Summary of The Rights of Chr istians in the Workplace:

• Right to Keep a Bible on a Private Desk and Read it during Breaks• Right to Discuss Religious Views, Subject only to the Same Rules of Order as Apply to

Other Employee Personal Expression• Right to Display Religious Messages on Items of Clothing to the Same Extent that Other

Personal Messages are Permitted to be Displayed• Right to Invite Co-workers to Religious Services• Right to Wear Religious Jewelry and Medalli ons• Right to Accommodation of a Sincerely Held Religious Belief, so long as the Employer

is Not Unduly Burdened


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PART I : EMPLOYEE RELIGIOUS RIGHTS

CHAPTER 1

Q: What Is Title VII And How Does It Protect Employees?

A: The religious freedom of most employees is protected by a federal law called “Title VII” . [1]In order to be protected by Title VII, an employee must show that: (1) He holds a sincerereligious belief that conflicts with an employment requirement; (2) He has informed theemployer about the conflict; and (3) He was discharged, disciplined or subjected todiscriminatory treatment for faili ng to comply with the conflicting employment requirement. [2]

1. Sincerely held religious belief. The sincerity of religious belief is rarely at issue in Title VIIcases. Although failure to act on a religious belief consistently may be considered evidence thatthe belief is not sincerely held [3], the fact that the belief was only recently acquired does notrender it an insincere one [4]. An employee is not held “ to a standard of conduct which wouldhave discounted his beliefs based on the slightest perceived flaw in the consistency of hisreligious practice.” [5] Religion under Title VII is broadly defined as including “all aspects ofreligious observance and practice, as well as belief. . . .” [6]The EEOC defines religious practicesas including “moral or ethical beliefs as to what is right and wrong which are sincerely held withthe strength of traditional religious views.... The fact that no religious group espouses suchbeliefs or the fact that the religious group to which the individual professes to belong may notaccept such belief will not determine whether the belief is a religious belief of the employee....”[7] In other words, the EEOC’s test does not require that the employee’s religious beliefscoincide with the tenets of his church: “Title VII protects more than the observance of Sabbath orpractices specifically mandated by an employee’s religion....” [8] Religion under Title VII hasbeen held to include the Black Muslim faith, the “old Catholic Religion,” a “ faith in humanitybeing,” and atheism [9]. However, “ religion” has not been so broadly defined as to includemembership in the Ku Klux Klan, membership in the United Klans of America, or belief in thespiritual power of a certain cat food. [10]

2. Employee informed employer of religious belief. Next the employee must show that theemployer was aware of the belief. An employer has sufficient notice of an employee’s religiousbelief if he has enough information about the employee’s “ religious needs to permit the employerto understand the existence of a conflict between employee’s religious practices and theemployer’s job requirements.” [11] The best way to inform the employer is in writing. A simpleletter to the employer stating: “ I have a sincerely held religious belief to (or not to) ________. Iam requesting that you, my employer, accommodate this sincerely held religious belief byallowing me to (or not requiring me to) ____________.” The employee should sign and date theletter, and keep a copy. Notification in writing is not absolutely necessary, as long as theemployer is aware of the beliefs [12]. However, a written notification gives the employer a fairchance to attempt to accommodate your religious convictions by avoiding confusion or disputesover whether they actually had notice. [13] This requirement must not be ignored. Anemployee’s claim will be rejected if the employer does not understand the religious beliefsinvolved. [14]


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3. Discriminatory treatment of employee. If an employee can show they have a sincerely heldreligious belief and that the employer knew about it, Title VII prohibits the employer fromdiscriminating against the employee because of the belief. “Discrimination” includes demotion,layoff, transfer, failure to promote, discharge, harassment, or intimidation, or the threat of theseadverse employment actions. [15] The employer is also required to reasonably accommodate theemployee’s religious beliefs unless such accommodation would result in undue hardship to theemployer. [16] “Accommodation” means that employer neutrali ty is not enough. [17] In general,an employer is required to accommodate an employee’s adherence to the principles of hisreligion unless such accommodation will actually interfere with the operations of the employer.


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CHAPTER 2: Employees Of Pr ivate, Non-government Organizations

Most employees work for private employers, not for the government. These employees areprimarily protected only by Title VII. They may also be protected by laws in their State similarto Title VII . State laws protecting the religious freedom of employees may provide moreprotection than Title VII, but generally they are very similar to the federal law. This booklet doesnot attempt to describe individual state laws therefore employees should consult an attorney whois li censed in their particular state to determine if state law provides them with added protection.This chapter explains how employees of private organizations are protected by Title VII. Therules of law stated also apply to government employees, but focus on private employees becauseTitle VII is usually their only remedy.

Q: Can I Share The Gospel With Co-workers At Work?

A: If required by their religious beliefs, an employee’s religiously motivated expressions of faithare protected by Title VII. For instance, in conversations with other employees, you may refer toBiblical passages on slothfulness and “work ethics.” [18] Employees can engage in religiousspeech at work as long as there is no actual imposition on co-workers or disruption of the workroutine [19]. Generally, no disruption of the work routine will occur if an employee’s witnessingtakes place during breaks, or other free time. If other employees are permitted to use electronicmail and screen savers for speech that is not related to work, an employee who has a sincerelyheld religious belief to communicate their faith with others should also be able to use thesemodes of communication. To ensure that their religious speech is protected by Title VII, anemployee should first of all be able to honestly say that their religious beliefs require them toshare the Gospel whenever possible with willi ng co-workers during breaks or other free time.The employee must then inform the employer of this religious belief (preferably in writing). Atthat point, the employer must attempt to accommodate this religious belief unless it will causethe employer undue hardship.

Q: Can I Keep My Bible Or Other Religious Items At My Desk?

A: Yes. As with witnessing to co-workers, an employee can bring his Bible to work and keep itat his desk if he is required to do so by sincerely held religious beliefs. To ensure that thisreligious belief of having a Bible or other religious items at work is protected by Title VII, anemployee should first of all be able to honestly say that their religious beliefs require them tobring these items to work. The employee must then inform the employer of this religious belief(preferably in writing). The employer is then required to attempt to accommodate this belief.

Q: Is My Employer Permitted To Restrict What I Say When I Am Not At Work?

A: Employers generally cannot discriminate against employees because of religious speechexpressed outside of the workplace [20]. The only possible exception is if speech activityengaged in outside the workplace directly affects the employee’s abili ty to perform his jobproperly. For instance, even though not acting in their off icial capacity, judges have beenprohibited from speaking out about issues on which that they may have to rule on [21].


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Q: Do I Have To Work On Sundays If My Religion Prohibits It?

A: Employers must accommodate requests by employees for absence on their Sabbath or otherreligious holidays. An aff irmative duty arises under Title VII for the employer to make a goodfaith effort to arrange the employee’s schedule to allow the employee to have Sabbaths off [22].The employer will be in violation of Title VII if they have “made no real effort” or have taken a“don’ t care” attitude [23].

For instance, courts have held that an employer is required to accommodate a World WideChurch of God employee who observed his Sabbath from sunset on Friday to sunset on Saturday.The reason for this decision is that the employer did not incur additional costs from theaccommodation because they employed extra men at all times to cover unscheduled absences[24]. The employer’s aff irmative duty to attempt to accommodate the employee’s request fortime off is not limited if the employee asks for more than one accommodation. For instance, anemployee who belongs to the World Wide Church of God requested time off in view of twosincerely held religious beliefs: (1) attending a religious festival during her normal working shift,and (2) refraining from all work during the religious festival. The employer argued thataccommodating one of these religious beliefs satisfied their duty under Title VII. But the Courtruled against the employer, refusing to “condone an employer’s entire lack of effort toaccommodate a given conflict merely because the employer offered to accommodate otherones.” [25] The same rule applies where an employee’s religious beliefs prevent him fromworking on Sundays, and prevent him from asking someone else to engage in this prohibitedactivity for him. Merely allowing the employee to swap shifts with someone does not constitutereasonable accommodation in this instance. In addition to allowing the employee to be off onSundays, the employer has an aff irmative duty to arrange a swap for the employee. [26]Employees must be careful to specifically inform their employer of this religious belief not toask anyone else to work on Sunday either.

In sum, employers must attempt to accommodate an employee’s need for days off due toreligious beliefs. At a minimum, the employer’s duty to accommodate includes allowingemployees to trade shifts, and may require the employer to arrange for the trade.

Q: Can My Employer Force Me To Work On Jobs That Support Abortion?

A: Title VII requires employers to accommodate employees who refuse to do specific tasksbecause of a conflict with religious beliefs. For instance, an employer has been required toaccommodate a religious worker’s objections to abortion [27]. In that case, an Internal RevenueService employee refused to handle applications for tax exempt status submitted by anyorganization which supported abortion. The court ruled that accommodating the employee wouldnot result in undue hardship to the employer because the number of applications the employeemight refuse to handle would be relatively insignificant as compared to his total workload. Soemployees who have a religious objection to abortion can request that their employer not requirethem to work on projects involving abortion. The employer will be required to grant this requestif it can assign these projects to other employees without undue hardship.


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Q: Can My Employer Require Me To Speak In A Way That Violates My ReligiousConvictions?

A: An employee cannot be forced to speak in a manner that would violate his religion. Forexample, when an employee was fired for refusing, based on religious beliefs, to answer thetelephone with “Merry Christmas, Lesco,” the court found that the employer should haveaccommodated the Jehovah’s Witness employee’s religious convictions regarding theobservance of Christmas [28]. The employer should have provided other ways for the employeeto answer the phone or assigned her to a different task during the Christmas season.

Q: Do I Have To Pay Union Dues If It Would Violate My Religious Beliefs?

A.: Many employees object to the causes that some unions support, such as Planned Parenthood,or other pro-abortion organizations. Several courts have held that those objecting to the paymentof union dues on religious grounds should be accommodated by allowing employees tocontribute an amount equal to their dues to an acceptable charity [29]. Another possibleaccommodation is discounting the union dues in proportion to the amount of money spent on theobjectionable union activity [30].

Q: Can I Go To Work Dressed In The Particular Fashion Required By My Religion?

A: Employers must accommodate religious beliefs requiring an employee to dress or groom in acertain manner, unless the rule prohibiting certain religious dressing is justified by a businessnecessity. The EEOC has ruled that a nurse whose Old Catholic faith required her to wear a scarfwas unlawfully discharged for refusing to come to work without the scarf, because requiring thenurse to wear a cap instead of the scarf was “not so necessary to the operation of [theemployer’s] business as to justify the effect that this policy has upon the religious convictions.”[31]Title VII has also been found to protect an employee’s religious belief that she must wear aPro-Life button at all times, even at work [32]. An employer, however, does not discriminateagainst an employee by requiring him to shave his long facial hair and refrain from wearing aturban, if both of these religious practices result in safety hazards by preventing a hard hat andrespirator from being worn properly [33].

Q: Are There Any Types Of Religious Beliefs Or Behavior Not Protected By Title VII?

A: Generally, all sincerely held religious beliefs are protected by Title VII. When a Title VIIreligious claim fails, it is often because the employer is able to show the employee wasdiscriminated against for ineff iciency, bad work product, or an inabili ty to get along with co-workers rather than because of the asserted religious practice. A frequent example is when anemployee’s religious speech is couched in an argumentative, confrontational style that inhibitscooperation with other employees [34]. In such cases, the court is li kely to determine that theemployee was not discriminated against because of his religious beliefs, but because of hisoffensive conduct in the off ice [35].

Q: Do I Have To Attend Training If It Violates My Religious Convictions?


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A: An employee cannot be required to attend training that will violate their sincerely heldreligious beliefs. The EEOC has ruled that an employer violates Title VII if it requires anemployee to attend training containing a philosophy that conflicts with the employee’s religiousbeliefs [36]. The EEOC found that the employer failed to show how accommodating thereligious convictions of these employees by not requiring them to attend the training would resultin an undue hardship.

Q: When Can My Employer Refuse To Accommodate My Religious Beliefs Because It WillCause An Undue Hardship?

A: There are very few times when employers can require employees to violate their religiousbeliefs, or refuse to allow the employee to practice his religious beliefs at work only if it wouldcause the employer an undue hardship. In order to successfully assert this defense, courts requirethat the employer demonstrate attempted accommodation before claiming undue hardship [37].Employers must also be able to show evidence of undue hardship that is more than merespeculation [38]. For example, undue hardship requires more than proof that other employeeswould grumble or be unhappy about a particular accommodation [39].

[A]n employer does not sustain his burden of proof merely by showing that an accommodationwould be bothersome to administer or disruptive of the operative routine. In addition, we aresomewhat skeptical of hypothetical hardships that an employer thinks might be caused by anaccommodation that never has been put into practice. The employer is on stronger ground whenhe has attempted various methods of accommodation and can point to hardships that actuallyresulted [40].

An employer is not required, however, to accommodate a particular religious belief if it wouldrequire more than a de minimis cost. For instance, an employer does not have to accommodate areligious belief to be off on Sundays if it would cause the employer to adjust the seniority policyand pay overtime to a replacement [41]. Employers may also consider public safety whenestablishing undue hardship. For instance, substituting an untrained employee for a highlytrained lineman to work on high-voltage power lines would have resulted in undue hardship [42].It should be emphasized that the Establishment Clause has absolutely no bearing on privateemployers. At the ACLJ, we often hear private employers attempt to justify their discriminatorytreatment of religious employees by quoting the phrase “separation of church and state.” Even ifthis phrase were the law, and it is not, it would not require private employees to have religion-free work environments. Private people or companies are not the government and therefore cannever violate the Establishment Clause [43].

Q: How Do I File A Claim Under Title VII If My Religious Rights Have Been Violated?

A: It is recommended that the employee contact an attorney before beginning this process.Because the process must be completed correctly in order to preserve your claim and because itmay vary from state to state, it is important to obtain competent legal counsel before beginning.Title VII first requires that the charge be filed with a state agency if the violation occurs within astate that has set up an agency for handling discrimination claims. If your state does not have itsown human rights commission or similar agency, you should file directly with the EEOC.


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Practically speaking, this means contacting the state agency or EEOC in your state by telephoneand informing them that you wish to file a complaint. They will t hen instruct you on how andwhere to fill out the necessary paper work. In states that have an agency for handling theseclaims, fili ng with the state agency must be followed by timely fili ng the charge with the EEOC.Some state agencies will do this for you. Usually the complaint must be filed within 180 days ofthe discriminatory act. The time period is measured from the date that the discriminatory actoccurred. Upon the fili ng of the charge there is a 180 day mandatory waiting period, duringwhich time the EEOC is given the opportunity to mediate and resolve the complaint. The privateliti gant then has 90 days in which to file suit. This limitation period runs not from thediscriminatory act, but from the date the private party receives notice from the EEOC or stateagency that concili ation was completed, or the date the party receives a right to sue letter. For amore detailed description of this process, see Appendix I.


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CHAPTER 3: Government Employees

Government employees are protected by both Title VII and the United States Constitutionagainst religious discrimination. Public employees do not forfeit their First Amendment rightsupon entering the public workplace [44]. Therefore, the religious freedom of governmentemployees has the additional protection of the Free Exercise and Free Speech Clauses of theFirst Amendment to the United States Constitution. This chapter explains how governmentemployees are protected by the First Amendment above and beyond the protection they havefrom Title VII.

Q: As A Government Employee, Is All My Religious Speech At Work Protected By The FirstAmendment?

A: A public employee receives greater speech protection when speaking “as a citizen uponmatters of public concern” than he does when commenting on employment matters of personalor internal interest [45]. When evaluating these cases, the Supreme Court has traditionallyutili zed a test which balances the importance of the employee’s speech on a matter of publicconcern against the government’s need to run an eff icient workplace [46]. Religious speech willalways be a matter of public concern. For example, in Tucker v. State of Cali fornia Dept. ofEduc. [47], a federal Court of Appeals found religious speech to be a matter of public concern,and used Pickering to protect the religious liberties of a state education department employeewho believed that he was commanded to “give credit to God for the work he perform [ed].” Heengaged in religious discussions, and kept religious material around his work area. Tuckerprevailed when the court weighed the state’s asserted interests of eff iciency, protecting theliberty interests of other employees, and avoiding Establishment Clause issues against the weightof a “broad ban on group speech.” The court rejected the employer’s contention that thereligious speech reduced efficiency since other types of non-work related speech were permitted.The court also rejected the argument that the employee’s speech violated the EstablishmentClause because there was no way it could have been attributed to the state. Therefore, religiousspeech of government employees will always be protected so long as it does not significantlyreduce eff iciency in the workplace, and so long as it will not be attributed to the governmentemployer.

Q: As A Government Employee, Can I Keep Religious Items In My Personal Work Area?

A: The First Amendment also protects the right of public employees to keep items with religiousmessages on them at their desk. In a case where an employee had a Bible and plaques containingthe serenity prayer, the Lord’s Prayer, and one that said, “God be in my li fe and in mycommitment” in his off ice, the government employer violated the First Amendment when itdemanded that these items be removed because they might be considered “offensive toemployees.” [48] The fact that other employees may find these items offensive is irrelevant whenconsidered in light of First Amendment freedoms [49].

Q: As A Government Employee, Can I Advertise Events At My Church On The Bulletin BoardAt Work?


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A: If a government employer allows employees to post non-work related material around theoff ice, they cannot prohibit the posting of religious material. “ [I]t is not reasonable to allowemployees to post materials around the off ice on all sorts of objects, and forbid only the postingof religious information and materials.” [50] Religious speech is given the same expansiveprotections offered to secular speech inviting “employees to motorcycle ralli es, swap meets, x-rated movies, beer busts, or burlesque shows.” Allowing this speech while prohibitingadvertising for religious events “ is unreasonable not only because it bans a vast amount ofmaterial without legitimate justification but also because its sole target is religious speech.” [51].

Q: Doesn’ t Religious Speech By Government Employees Violate The “Separation BetweenChurch And State?”

A: The oft cited phrase “separation between church and state” is found nowhere in theConstitution. This phrase has been misused by many in this country to mislead people and trickthem into believing that the government can have absolutely nothing to do with religion. Thetruth is that the Constitution only prohibits the establishment of religion through theEstablishment Clause of the First Amendment. The Establishment Clause of the FirstAmendment does not provide the government with any justification for prohibiting religiousexpression in the workplace [52]. As the United States Supreme Court said in this regard: “TheEstablishment Clause does not license government to treat religion and those who teach orpractice it, simply by virtue of their status as such, as subversive of American ideals andtherefore subject to unique disabiliti es.” [53]

We emphasize, too, that fear alone, even fear of discrimination or other ill egal activity, is notenough to justify such a mobili zation of governmental force against [an employee]... A phobiaof religion, for instance, no matter how real subjectively, will not do. As Justice Brandeis hassaid,…“Men feared witches and burnt women.” [54].

In August of 1997, President Clinton took the remarkable step of issuing guidelines confirmingthat federal workers can express their faith on the job. These guidelines direct federal agencies to“permit personal religious expression by federal employees to the greatest extent possible...” [55]The guidelines are instructive for all government employees and employers and are reproducedin full i n Appendix Two, beginning on page 20.

In sum, governmental employers may restrict religious activity in the workplace only if itprohibits the government from running an eff icient workplace, or there is clear evidence that it isintimidating or harassing to co-workers. Speculative fears of offense or employee discontent donot provide the government with an excuse for discriminating against religious employees whoexpress their faith through words, actions, or symbols.


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PART II : RELIGIOUS ACTIVITIES BY EMPLOYERS UNDER TITLE VII .

Many employers have sincerely held religious beliefs which they want their businesses to reflect.But federal and state laws prohibiting religious discrimination in employment have discouragedmany business owners from communicating their religious convictions at work. The good newsis that, just like employees, business owners do not have to check their religion at the door whenthey come to work. The following information provides some guidance for religious employerswho want their business to reflect their faith.

CHAPTER 4: Employer Religious Beliefs

Q: Do Employers Unlawfully Discriminate If They Base Business Objectives And Goals UponBiblical Principles?

A: No. An employer does not discriminate on the basis of religion by affirming the faith of itsowners in business objectives [56]. “Title VII does not, and could not, require individualemployers to abandon their religion.” [57]. Employers must be careful, however, not to giveprospective or current employees the perception that employment or advancement with thecompany depends on acquiescence in the religious beliefs of the employer. This can beaccomplished in a number of ways. For instance, applications for employment should state thatapplicants are considered for all positions without regard to religion. This statement should alsobe included in any orientation materials, employee handbooks, or employee evaluation forms. Ofcourse, employers must also be sure that this statement is accurate by not discriminating on thebasis of religion.

Q: As The Owner Of The Business, Can I Witness To My Employees?

A: An employer can talk about his religious beliefs with employees as long as employees knowthat continued employment or advancement within the company is not conditioned uponacquiescence in the employer’s religious beliefs. For instance, one court has held that anemployer did not discriminate against an employee by sharing the Gospel with him and invitinghim to church [58]. Employers must be careful, however, not to persist in witnessing if theemployee objects. Such unwanted proselytizing could be deemed religious harassment.Employers cannot impose their religious beliefs on employees [59].

Q: Am I Permitted To Give My Employees Religious Literature?

A: As with spoken religious speech, employers can share their religious beliefs with theiremployees in print form such as pamphlets, books, and newsletters [60]. Employers must becareful, however, not to give employees the impression that they have to agree with theemployer’s religious beliefs in order to keep their job or get a promotion. For instance, in onecase a Jewish employee was wrongfully terminated for complaining about the printing of Bibleverses on his paychecks and the religious content of a company newsletter [61]. If an employershares religious convictions with employees, and the employee disagrees or protests, no adverseaction can be taken against the employee. Furthermore, employers should be ready to


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accommodate any employee’s objections to the religious speech contained in publicationsdistributed to employees. Suff icient accommodation may be to provide the objecting employeewith a publication that does not contain the religious content. In order to counter any impressiongiven by publications that job security and advancement are contingent upon faith, it is alsorecommended that publications with religious material state that the employer does notdiscriminate on the basis of religion for purposes of continued employment, employee benefits,or promotion.

Q: Can An Employer Hold Regular Prayer Meetings Or Chaplain Services For Employees?

A: Employers can hold regular devotional meetings for employees so long as attendance is notrequired [62]. Moreover, active participation of management in these meetings does not makethem discriminatory [63]. To ensure that employees understand that devotional meetings arevoluntary, notice of the meetings should state that they are not mandatory and it is wise to holdthese meetings before the work day begins, during breaks, or after work.

Q: Can I Require My Employees To Attend Training Based On Biblical Principles?

A: Employers can use training programs that are based on the Bible. For instance, requiring anemployee to attend a management seminar put on by the Institute of Basic Life Principles whichused scriptural passages to support the lessons it sought to promote did not violate aMassachusetts civil rights law [64]. Employees cannot, however, be required to undergoreligious training, participate in religious services, or engage in behavior that would violate theirsincerely held religious beliefs. See Part I to this Booklet.


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APPENDIX I : Title VII Overview

A. THRESHOLD REQUIREMENTS FOR TITLE VII COVERAGE. Title VII applies tomost large private employers as well as to governmental employers. With regard to employers,Title VII states:

(a) Employer practices. It shall be an unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge any individual, or otherwise todiscriminate against any individual with respect to his compensation, terms,conditions, or privileges of employment, because of such individual’s race, color,religion, sex, or national origin; or

(2) to limit , segregate, or classify his employees or applicants for employment inany way which would deprive or tend to deprive any individual of employmentopportunities or otherwise adversely affect his status as an employee, because ofsuch individual’s race, color, religion, sex or national origin.

42 U.S.C. § 2000e-2. Title VII defines “employer” as “a person engaged in an industry affectingcommerce who has fifteen or more employees for each working day in each of twenty or morecalendar weeks in the current or preceding calendar year, and any agent of such a person. . . .” 42U.S.C. § 2000e(b). Title VII therefore covers an employer who has fifteen or more employees onhis payroll for at least twenty weeks during a given year. Once coverage is established in a givenyear, Title VII coverage will extend through the following year, even if the number of employeesfalls below the minimum.

As to what is an “employee,” the statute is not limited to traditional definitions of employees.“Employee” includes all who “are susceptible to the kind of unlawful practices that Title VII wasintended to remedy.” [65] Thus, Title VII may apply even if the employee is an independentcontractor.

The statute also applies to state and local governments through 42 U.S.C. § 2000e(a), and to thefederal government via 42 U.S.C. § 2000e-16. In fact, Title VII is the exclusive judicial remedyoffering injunctive relief for discrimination in federal employment [66]. Title VII does not applyto religious organizations. 42 U.S.C. § 2000e-1. 42 U.S.C. § 2000e-2(b) - (d) brings employmentagencies, labor organizations, and training programs under the umbrella of Title VII.

B. TITLE VII PROCEDURES: PRIVATE DEFENDANTS.

1. Deferral to State Agencies. The majority of jurisdictions have “deferral agencies,” typicallydenoted as a “state equal employment opportunity agency” or “human rights commission.”These are state or local agencies authorized to seek or grant relief from the discriminatorypractice or to institute criminal proceedings. 42 U.S.C. § 2000e-5(c). Charges must be filed withboth the state or local agency as well as with the EEOC. The EEOC is required by statute toallow a deferral agency not less than 60 days after the charge is filed to dispose of the charge. 42U.S.C. § 2000e-5(d). The majority of states require a charge to be filed with their deferral agencywithin 180 days following the act of discrimination.


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In deferral jurisdictions, EEOC has no jurisdiction unless a timely charge is first filed with thedeferral agency. Although EEOC may initially accept a charge and file with the state agency onits own initiative, this should not be replied upon. The aggrieved party should file a timelycharge directly with the deferral agency to ensure meeting this prerequisite to fili ng suit. A localagency may waive its 60-day deferral period through a work-sharing agreement with the EEOC,thus “ terminating” the agency’s proceedings so that the EEOC may deem a charge filed andbegin processing it.

2. Fili ng with the EEOC. In states without a deferral agency, charges of specific discriminatoryacts must be filed with the EEOC within 180 days after the discriminatory act occurred [67].This and other time periods specified by Title VII may be tolled when equity demandsmodification [68]. Where there is a state deferral agency, the time period for fili ng with theEEOC is extended to 300 days, or within 30 days after receiving notice that the state hasterminated the proceedings under state or local law, whichever is earlier [69]. The EEOC may, ifit receives the charge first, file the state charge on its own initiative and then automatically re-filethe charge with itself after the 60-day deferral period expires [70]. However, the surest course ofaction is to directly file the EEOC charge once the state deferral period expires or the stateterminates its investigation, whichever comes first [71].

Once the charge is timely filed, EEOC has 180 days of exclusive jurisdiction over the charge.Because the state deferral period is mandatory, the combined effect is that a plaintiff must firstawait the results of state efforts for 60 days, then ensure that an EEOC charge is filed, and thenawait the results of EEOC concili ation efforts for 180 days. There is no statute of limitation onthe EEOC’s investigation and concili ation efforts.

3. Civil Actions by the EEOC or by the Aggr ieved Party. The EEOC may bring a civil actionif it fails to secure a concili ation agreement within 30 days of either the charge being filed withEEOC or the 60 day state deferral period expiring [72]. If the EEOC dismisses a charge filedwith it, or if the EEOC fails to file a civil action within 180 days of exclusive jurisdiction, thenthe EEOC must so notify the person aggrieved [73]. Alternatively, when EEOC concili ationefforts extend past the 180 days of exclusive EEOC jurisdiction, the aggrieved person need notawait the outcome of concili ation but may instead request a “notice-of-right-to-sue.” In eithercircumstance, the aggrieved person may then bring a civil action on his own behalf within 90days of receipt of such notice [74]. Should the aggrieved person allow the EEOC to continue itsconcili ation efforts past the exclusive jurisdiction period, he may file suit i f the final EEOCresolution is adverse to him, even if the concili ation takes years to complete. In the case wherethe aggrieved person is a state or local government employee and the Commission fails to securea concili ation agreement, it must refer the case to the Attorney General. The person aggrievedhas a right to intervene in a civil action brought by the Commission or the Attorney General [75].The charging party may bring suit on his behalf subject to the same limitations above. After suitis filed the EEOC is precluded from fili ng an independent action. In summary, Title VII firstrequires that the charge be filed with the deferral agency if within a deferral jurisdiction, ordirectly with the EEOC if not. In deferral jurisdictions, fili ng with the deferral agency must befollowed by timely fili ng the charge with the EEOC. The time periods are measured from thedate that the discriminatory act occurred. Upon fili ng of the charge there is a 180 day mandatory


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waiting period, during which time the EEOC is given the opportunity to mediate and resolve thecomplaint. The private liti gant then has 90 days in which to file suit. This limitation period runsnot from the discriminatory act, but from the date the private party receives notice from theEEOC because either concili ation was completed or the party requested a right to sue letter.

C. TITLE VII PROCEDURES: FEDERAL DEFENDANTS

Title VII requires federal defendants to use significantly different procedures. Within the federalgovernment the employing agency is the primary administrator for Title VII. Claims are filedwith Equal Employment Opportunity Counselors within the offending agency, not with theEEOC. Before a formal claim is filed, the aggrieved person must file a “pre-complaint” noticewith a counselor within 45 days of the discriminatory act [76]. The counselor must attempt toresolve the dispute within 30 days [77]. At the end of the dispute resolution period, a finalinterview is conducted with the aggrieved party. If the matter has not been resolved, writtennotice is given to the aggrieved party. Formal charges may then be filed with “appropriateagency officials” within 15 days of receipt of that notice [78]. The agency then has 180 daysfrom fili ng to resolve the complaint; at the end of this period, the complainant may either requesta hearing before an administrative law judge or accept a final agency disposition without furtherhearings [79]. The aggrieved party need not wait for the administrative procedures to run theirfull course. A civil action in federal district court may be commenced when 180 days haveelapsed since the fili ng of the formal complaint [80]. If the agency has made a determination onthe formal charge, the aggrieved party may file suit within 90 days of receipt of the “decisionletter.” [81]. Alternatively, the agency’s final decision or dismissal of the complaint may beappealed to the EEOC within 30 days of receiving the decision letter [82]. As of 1996, there is noset time period limiti ng the length of appellate review by the EEOC [83]. Once EEOC issues afinal decision on the appeal, the aggrieved party has 90 days from receipt of the final decision tofile a civil action [84].


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APPENDIX TWO: GUIDELINES ON RELIGIOUS EXERCISE AND RELIGIOUSEXPRESSION IN THE FEDERAL WORKPLACE

The following Guidelines, addressing religious exercise and religious expression, shall apply toall civili an executive branch agencies, off icials, and employees in the Federal workplace.

These Guidelines principally address employees’ religious exercise and religious expressionwhen the employees are acting in their personal capacity within the Federal workplace and thepublic does not have regular exposure to the workplace. The Guidelines do not comprehensivelyaddress whether and when the government and its employees may engage in religious speechdirected at the expression will rarely, if ever, fall within these exceptions.

As a general rule, agencies may not regulate employees’ personal religious expression on thebasis of its content or viewpoint. In other words, agencies generally may not suppressemployees’ private religious speech in the workplace while leaving unregulated other privateemployee speech that has a comparable effect on the efficiency of the workplace -- includingideological speech on politi cs and other topics -- because to do so would be to engage inpresumptively unlawful content or viewpoint discrimination. Agencies, however, may, in theirdiscretion, reasonably regulate the time, place and manner of all employee speech, provided suchregulations do not discriminate on the basis of content or viewpoint.

The Federal Government generally has the authority to regulate an employee’s private speech,including religious speech, where the employee’s interest in that speech is outweighed by thegovernment’s interest in promoting the eff iciency of the public services it performs. Agenciesshould exercise this authority evenhandedly and with restraint, and with regard for the fact thatAmericans are used to expressions of disagreement on controversial subjects, including religiousones. Agencies are not required, however, to permit employees to use work time to pursuereligious or ideological agendas. Federal employees are paid to perform off icial work, not toengage in personal religious or ideological campaigns during work hours.

(1) Expression in Pr ivate Work Areas. Employees should be permitted to engage in privatereligious expression in personal work areas not regularly open to the public to the same extentthat they may engage in nonreligious private expression, subject to reasonable content- andviewpoint-neutral standards and restrictions: such religious expression must be permitted so longas it does not interfere with the agency’s carrying out of its off icial responsibiliti es.

Examples

(a) An employee may keep a Bible or Koran on her private desk and read it duringbreaks.

(b) An agency may restrict all posters, or posters of a certain size, in private work areas,or require that such posters be displayed facing the employee, and not on common walls;but the employer typically cannot single out religious or anti-religious posters for harsheror preferential treatment.


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(2) Expression Among Fellow Employees. Employees should be permitted to engage inreligious expression with fellow employees, to the same extent that they may engage incomparable nonreligious private expression, subject to reasonable and content-neutral standardsand restrictions: such expression should not be restricted so long as it does not interfere withworkplace eff iciency. Though agencies are entitled to regulate such employee speech based onreasonable predictions of disruption, they should not restrict speech based on merelyhypothetical concerns, having littl e basis in fact, that the speech will have a deleterious effect onworkplace eff iciency.

Examples

(a) In informal settings, such as cafeterias and hallways, employees are entitled to discusstheir religious views with one another, subject only to the same rules of order as apply toother employee expression. If an agency permits unrestricted nonreligious expression of acontroversial nature, it must likewise permit equally controversial religious expression.

(b) Employees are entitled to display religious messages on items of clothing to the sameextent that they are permitted to display other comparable messages. So long as they donot convey any governmental endorsement of religion, religious messages may nottypically be singled out for suppression.

(c) Employees generally may wear religious medalli ons over their clothes or so that theyare otherwise visible. Typically, this alone will not affect workplace eff iciency, andtherefore is protected.

(3) Expression Directed at Fellow Employees. Employees are permitted to engage in religiousexpression directed at fellow employees, and may even attempt to persuade fellow employees ofthe correctness of their religious views, to the same extent as those employees may engage incomparable speech not involving religion. Some religions encourage adherents to spread thefaith at every opportunity, a duty that can encompass the adherent’s workplace. As a generalmatter, proselytizing is as entitled to constitutional protection as any other form of speech -- aslong as a reasonable observer would not interpret the expression as government endorsement ofreligion. Employees may urge a colleague to participate or not to participate in religiousactivities to the same extent that, consistent with concerns of workplace efficiency, they mayurge their colleagues to engage in or refrain from other personal endeavors. But employees mustrefrain from such expression when a fellow employee asks that it stop or otherwise demonstratesthat it is unwelcome. (Such expression by supervisors is subject to special consideration asdiscussed in Section B(2) of these guidelines.)

Examples

(a) During a coffee break, one employee engages another in a polite discussion of whyhis faith should be embraced. The other employee disagrees with the first employee’sreligious exhortations, but does not ask that the conversation stop. Under thesecircumstances, agencies should not restrict or interfere with such speech.


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(b) One employee invites another employee to attend worship services at her church,though she knows that the invitee is a devout adherent of another faith. The invitee isshocked, and asks that the invitation not be repeated. The original invitation is protected,but the employee should honor the request that no further invitations be issued.

(c) In a parking lot, a non-supervisory employee hands another employee a religious tracturging that she convert to another religion lest she be condemned to eternal damnation.The proselytizing employee says nothing further and does not inquire of his colleaguewhether she followed the pamphlet’s urging. This speech typically should not berestricted.

Though personal religious expression such as that described in these examples, standing alone, isprotected in the same way, and to the same extent, as other constitutionally valued speech in theFederal workplace, such expression should not be permitted if it is part of a larger pattern ofverbal attacks on fellow employees (or a specific employee) not sharing the faith of the speaker.Such speech, by virtue of its excessive or harassing nature, may constitute religious harassmentor create a hostile work environment, as described in Part B(3) of these Guidelines, and anagency should not tolerate it.

(4) Expression in Areas Accessible to the Public. Where the public has access to the Federalworkplace, all Federal employers must be sensitive to the Establishment Clause’s requirementthat expression not create the reasonable impression that the government is sponsoring,endorsing, or inhibiting religion generally, or favoring or disfavoring a particular religion. This isparticularly important in agencies with adjudicatory functions.

However, even in workplaces open to the public, not all private employee religious expression isforbidden. For example, Federal employees may wear personal religious jewelry absent specialcircumstances (such as safety concerns) that might require a ban on all similar nonreligiousjewelry. Employees may also display religious art and literature in their personal work areas tothe same extent that they may display other art and literature, so long as the viewing publicwould reasonably understand the religious expression to be that of the employee acting in herpersonal capacity, and not that of the government itself. Similarly, in their private timeemployees may discuss religion with willi ng coworkers in public spaces to the same extent asthey may discuss other subjects, so long as the public would reasonably understand the religiousexpression to be that of the employees acting in their personal capacities.

B. Religious Discrimination. Federal agencies may not discriminate against employees on thebasis of their religion, religious beliefs, or views concerning religion.

(1) Discrimination in Terms and Conditions. No agency within the executive branch maypromote, refuse to promote, hire, refuse to hire, or otherwise favor or disfavor, an employee orpotential employee because of his or her religion, religious beliefs, or views concerning religion.

Examples


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(a) A Federal agency may not refuse to hire Buddhists, or impose more onerousrequirements on applicants for employment who are Buddhists.

(b) An agency may not impose, explicitly or implicitly, stricter promotion requirementsfor Christians, or impose stricter discipline on Jews than on other employees, based ontheir religion. Nor may Federal agencies give advantages to Christians in promotions, orimpose lesser discipline on Jews than on other employees, based on their religion.

(c) A supervisor may not impose more onerous work requirements on an employee whois an atheist because that employee does not share the supervisor’s religious beliefs.

(2) Coercion of Employee’s Par ticipation or Nonparticipation in Religious Activities. Aperson holding supervisory authority over an employee may not, explicitly or implicitly, insistthat the employee participate in religious activities as a condition of continued employment,promotion, salary increases, preferred job assignments, or any other incidents of employment.Nor may a supervisor insist that an employee refrain from participating in religious activitiesoutside the workplace except pursuant to otherwise legal, neutral restrictions that apply toemployees’ off-duty conduct and expression in general (e.g., restrictions on politi cal activitiesprohibited by the Hatch Act).

This prohibition leaves supervisors free to engage in some kinds of speech about religion. Wherea supervisor’s religious expression is not coercive and is understood as his or her personal view,that expression is protected in the Federal workplace in the same way and to the same extent asother constitutionally valued speech. For example, if surrounding circumstances indicate that theexpression is merely the personal view of the supervisor and that employees are free to reject orignore the supervisor’s point of view or invitation without any harm to their careers orprofessional li ves, such expression is so protected.

Because supervisors have the power to hire, fire, or promote, employees may reasonablyperceive their supervisors’ religious expression as coercive, even if it was not intended as such.Therefore, supervisors should be careful to ensure that their statements and actions are such thatemployees do not perceive any coercion of religious or non-religious behavior (or respond as ifsuch coercion is occurring), and should, where necessary, take appropriate steps to dispel suchmisperceptions.

Examples

(a) A supervisor may invite co-workers to a son’s confirmation in a church, a daughter’sbat mitzvah in a synagogue, or to his own wedding at a temple. but -A supervisor shouldnot say to an employee: “ I didn’ t see you in church this week. I expect to see you therethis Sunday.”

(b) On a bulletin board on which personal notices unrelated to work regularly arepermitted, a supervisor may post a flyer announcing an Easter musical service at herchurch, with a handwritten notice inviting co-workers to attend. but - A supervisor shouldnot circulate a memo announcing that he will be leading a lunch-hour Talmud class that


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employees should attend in order to participate in a discussion of career advancement thatwill convene at the conclusion of the class.

(c) During a wide-ranging discussion in the cafeteria about various non-work relatedmatters, a supervisor states to an employee her belief that religion is important in one’sli fe. Without more, this is not coercive, and the statement is protected in the Federalworkplace in the same way, and to the same extent, as other constitutionally valuedspeech.

(d) A supervisor who is an atheist has made it known that he thinks that anyone whoattends church regularly should not be trusted with the public weal. Over a period ofyears, the supervisor regularly awards merit increases to employees who do not attendchurch routinely, but not to employees of equal merit who do attend church. This courseof conduct would reasonably be perceived as coercive and should be prohibited.

(e) At a lunch-table discussion about abortion, during which a wide range of views arevigorously expressed, a supervisor shares with those he supervises his belief that Goddemands full respect for unborn li fe, and that he believes it is appropriate for all personsto pray for the unborn. Another supervisor expresses the view that abortion should bekept legal because God teaches that women must have control over their own bodies.Without more, neither of these comments coerces employees’ religious conformity orconduct. Therefore, unless the supervisors take further steps to coerce agreement withtheir view or act in ways that could reasonably be perceived as coercive, their expressionsare protected in the Federal workplace in the same way and to the same extent as otherconstitutionally valued speech.

(3) Hostile Work Environment and Harassment. The law against workplace discriminationprotects Federal employees from being subjected to a hostile environment, or religiousharassment, in the form of religiously discriminatory intimidation, or pervasive or severereligious ridicule or insult, whether by supervisors or fellow workers. Whether particular conductgives rise to a hostile environment, or constitutes impermissible religious harassment, willusually depend upon its frequency or repetiti veness, as well as its severity. The use of derogatorylanguage in an assaultive manner can constitute statutory religious harassment if it is severe orinvoked repeatedly. A single incident, if sufficiently abusive, might also constitute statutoryharassment. However, although employees should always be guided by general principles ofcivili ty and workplace eff iciency, a hostile environment is not created by the bare expression ofspeech with which some employees might disagree. In a country where freedom of speech andreligion are guaranteed, citizens should expect to be exposed to ideas with which they disagree.

The examples below are intended to provide guidance on when conduct or words constitutereligious harassment that should not be tolerated in the Federal workplace. In a particular case,the question of employer liabili ty would require consideration of additional factors, including theextent to which the agency was aware of the harassment and the actions the agency took toaddress it.


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Examples

(a) An employee repeatedly makes derogatory remarks to other employees with whomshe is assigned to work about their faith or lack of faith. This typically will constitutereligious harassment. An agency should not tolerate such conduct.

(b) A group of employees subjects a fellow employee to a barrage of comments about hissex li fe, knowing that the targeted employee would be discomforted and offended bysuch comments because of his religious beliefs. This typically will constitute harassment,and an agency should not tolerate it.

(c) A group of employees that share a common faith decides that they want to workexclusively with people who share their views. They engage in a pattern of verbal attackson other employees who do not share their views, calli ng them heathens, sinners, and thelike. This conduct should not be tolerated.

(d) Two employees have an angry exchange of words. In the heat of the moment, onemakes a derogatory comment about the other’s religion. When tempers cool, no more issaid. Unless the words are sufficiently severe or pervasive to alter the conditions of theinsulted employee’s employment or create an abusive working environment, this is notstatutory religious harassment.

(e) Employees wear religious jewelry and medalli ons over their clothes or so that they areotherwise visible. Others wear buttons with a generalized religious or anti-religiousmessage. Typically, these expressions are personal and do not alone constitute religiousharassment.

(f) In her private work area, a Federal worker keeps a Bible or Koran on her private deskand reads it during breaks. Another employee displays a picture of Jesus and the text ofthe Lord’s Prayer in her private work area. This conduct, without more, is not religiousharassment, and does not create an impermissible hostile environment with respect toemployees who do not share those religious views, even if they are upset or offended bythe conduct.

(g) During lunch, certain employees gather on their own time for prayer and Bible studyin an empty conference room that employees are generally free to use on a first-come,first-served basis. Such a gathering does not constitute religious harassment even if otheremployees with different views on how to pray might feel excluded or ask that the groupbe disbanded.

C. Accommodation of Religious Exercise. Federal law requires an agency to accommodateemployees’ exercise of their religion unless such accommodation would impose an unduehardship on the conduct of the agency’s operations. Though an agency need not make anaccommodation that will result in more than a de minimis cost to the agency, that cost orhardship nevertheless must be real rather than speculative or hypothetical: the accommodation


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should be made unless it would cause an actual cost to the agency or to other employees or anactual disruption of work, or unless it is otherwise barred by law.

In addition, religious accommodation cannot be disfavored vis-a-vis other, nonreligiousaccommodations. Therefore, a religious accommodation cannot be denied if the agency regularlypermits similar accommodations for nonreligious purposes.

Examples

(a) An agency must adjust work schedules to accommodate an employee’s religiousobservance -- for example, Sabbath or religious holiday observance --if an adequatesubstitute is available, or if the employee’s absence would not otherwise impose an undueburden on the agency.

(b) An employee must be permitted to wear religious garb, such as a crucifix, a yarmulke,or a head scarf or hijab, if wearing such attire during the work day is part of theemployee’s religious practice or expression, so long as the wearing of such garb does notunduly interfere with the functioning of the workplace.

(c) An employee should be excused from a particular assignment if performance of thatassignment would contravene the employee’s religious beliefs and the agency would notsuffer undue hardship in reassigning the employee to another detail .

(d) During lunch, certain employees gather on their own time for prayer and Bible studyin an empty conference room that employees are generally free to use on a first-come,first-served basis. Such a gathering may not be subject to discriminatory restrictionsbecause of its religious content.

In those cases where an agency’s work rule imposes a substantial burden on a particularemployee’s exercise of religion, the agency must go further: an agency should grant theemployee an exemption from that rule, unless the agency has a compelli ng interest in denyingthe exemption and there is no less restrictive means of furthering that interest.

Examples

(a) A corrections off icer whose religion compels him or her to wear long hair should begranted an exemption from an otherwise generally applicable hair-length policy unlessdenial of an exemption is the least restrictive means of preserving safety, security,discipline or other compelli ng interests.

(b) An applicant for employment in a governmental agency who is a Jehovah’s Witnessshould not be compelled, contrary to her religious beliefs, to take a loyalty oath whoseform is religiously objectionable.

D. Establishment of Religion. Supervisors and employees must not engage in activities orexpression that a reasonable observer would interpret as Government endorsement or denigration


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of religion or a particular religion. Activities of employees need not be officially sanctioned inorder to violate this principle; if, in all the circumstances, the activities would leave a reasonableobserver with the impression that Government was endorsing, sponsoring, or inhibiting religiongenerally or favoring or disfavoring a particular religion, they are not permissible. Diversefactors, such as the context of the expression or whether off icial channels of communication areused, are relevant to what a reasonable observer would conclude.

Examples

(a) At the conclusion of each weekly staff meeting and before anyone leaves the room, anemployee leads a prayer in which nearly all employees participate. All employees arerequired to attend the weekly meeting. The supervisor neither explicitly recognizes theprayer as an official function nor explicitly states that no one need participate in theprayer. This course of conduct is not permitted unless under all the circumstances areasonable observer would conclude that the prayer was not off icially endorsed.

(b) At Christmas time, a supervisor places a wreath over the entrance to the off ice’s mainreception area. This course of conduct is permitted.

Section 2. Guiding Legal Pr inciples. In applying the guidance set forth in section 1 of thisorder, executive branch departments and agencies should consider the following legal principles.

A. Religious Expression. It is well -established that the Free Speech Clause of the FirstAmendment protects Government employees in the workplace. This right encompasses a right tospeak about religious subjects. The Free Speech Clause also prohibits the Government fromsingling out religious expression for disfavored treatment: “ [P]rivate religious speech, far frombeing a First Amendment orphan, is as fully protected under the Free Speech Clause as secularprivate expression,” Capitol Sq. Review Bd. v. Pinette, 115 S.Ct. 2448 (1995). Accordingly, inthe Government workplace, employee religious expression cannot be regulated because of itsreligious character, and such religious speech typically cannot be singled out for harshertreatment than other comparable expression.

Many religions strongly encourage their adherents to spread the faith by persuasion and exampleat every opportunity, a duty that can extend to the adherents’ workplace. As a general matter,proselytizing is entitled to the same constitutional protection as any other form of speech.Therefore, in the governmental workplace, proselytizing should not be singled out because of itscontent for harsher treatment than nonreligious expression.

However, it is also well -established that the Government in its role as employer has broaderdiscretion to regulate its employees’ speech in the workplace than it does to regulate speechamong the public at large. Employees’ expression on matters of public concern can be regulatedif the employees’ interest in the speech is outweighed by the interest of the Government, as anemployer, in promoting the eff iciency of the public services it performs through its employees.Governmental employers also possess substantial discretion to impose content-neutral andviewpoint-neutral time, place, and manner rules regulating private employee expression in theworkplace (though they may not structure or administer such rules to discriminate against


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particular viewpoints). Furthermore, employee speech can be regulated or discouraged if itimpairs discipline by superiors, has a detrimental impact on close working relationships forwhich personal loyalty and confidence are necessary, impedes the performance of the speaker’sduties or interferes with the regular operation of the enterprise, or demonstrates that theemployee holds views that could lead his employer or the public reasonably to question whetherhe can perform his duties adequately.

Consistent with its fully protected character, employee religious speech should be treated, withinthe Federal workplace, li ke other expression on issues of public concern: in a particular case, anemployer can discipline an employee for engaging in speech if the value of the speech isoutweighed by the employer’s interest in promoting the efficiency of the public services itperforms through its employee. Typically, however, the religious speech cited as permissible inthe various examples included in these Guidelines will not unduly impede these interests andshould not be regulated. And rules regulating employee speech, li ke other rules regulatingspeech, must be carefully drawn to avoid any unnecessary limiti ng or chilli ng of protectedspeech.

B. Discrimination in Terms and Conditions. Title VII of the Civil Rights Act of 1964 makes itunlawful for employers, both private and public, to “ fail or refuse to hire or to discharge anyindividual, or otherwise to discriminate against any individual with respect to compensation,terms, conditions, or privileges of employment, because of such individual’s... religion.” 42U.S.C. 2000e-2(a)(1). The Federal Government also is bound by the equal protection componentof the Due Process Clause of the Fifth Amendment, which bars intentional discrimination on thebasis of religion. Moreover, the prohibition on religious discrimination in employment applieswith particular force to the Federal Government, for Article VI, clause 3 of the Constitution barsthe Government from enforcing any religious test as a requirement for quali fication to anyOff ice. In addition, if a Government law, regulation or practice facially discriminates againstemployees’ private exercise of religion or is intended to infringe upon or restrict private religiousexercise, then that law, regulation, or practice implicates the Free Exercise Clause of the FirstAmendment. Last, under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1, Federalgovernmental action that substantially burdens a private party’s exercise of religion can beenforced only if it is justified by a compelli ng interest and is narrowly tailored to advance thatinterest.

C. Coercion of Employees’ Par ticipation or Nonparticipation in Religious Activities. Theban on religious discrimination is broader than simply guaranteeing nondiscriminatory treatmentin formal employment decisions such as hiring and promotion. It applies to all terms andconditions of employment. It follows that the Federal Government may not require or coerce itsemployees to engage in religious activities or to refrain from engaging in religious activity. Forexample, a supervisor may not demand attendance at (or a refusal to attend) religious services asa condition of continued employment or promotion, or as a criterion affecting assignment of jobduties. Quid pro quo discrimination of this sort is ill egal. Indeed, wholly apart from the legalprohibitions against coercion, supervisors may not insist upon employees’ conformity toreligious behavior in their private lives any more than they can insist on conformity to any otherprivate conduct unrelated to employees’ abili ty to carry out their duties.


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D. Hostile Work Environment and Harassment. Employers violate Title VII’ s ban ondiscrimination by creating or tolerating a “hostile environment” in which an employee is subjectto discriminatory intimidation, ridicule, or insult suff iciently severe or pervasive to alter theconditions of the victim’s employment. This statutory standard can be triggered (at the veryleast) when an employee, because of her or his religion or lack thereof, is exposed tointimidation, ridicule, and insult. The hostile conduct -- which may take the form of speech --need not come from supervisors or from the employer. Fellow employees can create a hostileenvironment through their own words and actions.

The existence of some offensive workplace conduct does not necessarily constitute harassmentunder Title VII. Occasional and isolated utterances of an epithet that engenders offensivefeelings in an employee typically would not affect conditions of employment, and thereforewould not in and of itself constitute harassment. A hostile environment, for Title VII purposes, isnot created by the bare expression of speech with which one disagrees. For religious harassmentto be ill egal under Title VII, it must be suff iciently severe or pervasive to alter the conditions ofemployment and create an abusive working environment. Whether conduct can be the predicatefor a finding of religious harassment under Title VII depends on the totality of the circumstances,such as the nature of the verbal or physical conduct at issue and the context in which the allegedincidents occurred. As the Supreme Court has said in an analogous context:

Whether an environment is “hostile” or “abusive” can be determined only by looking at all thecircumstances. These may include the frequency of the discriminatory conduct; its severity;whether it is physically threatening or humiliating, or a mere offensive utterance; and whether itunreasonably interferes with an employee’s work performance. The effect on the employee’spsychological well -being is, of course, relevant to determining whether the plaintiff actuallyfound the environment abusive. Harris v. Forkli ft Systems, Inc., 510 U.S. 17, 23 (1993).

The use of derogatory language directed at an employee can rise to the level of religiousharassment if it is severe or invoked repeatedly. In particular, repeated religious slurs andnegative religious stereotypes, or continued disparagement of an employee’s religion or ritualpractices, or lack thereof, can constitute harassment. It is not necessary that the harassment beexplicitly religious in character or that the slurs reference religion: it is suff icient that theharassment is directed at an employee because of the employee’s religion or lack thereof. That isto say, Title VII can be violated by employer tolerance of repeated slurs, insults and/or abuse notexplicitly religious in nature if that conduct would not have occurred but for the targetedemployee’s religious belief or lack of religious belief. Finally, although proselytization directedat fellow employees is generally permissible (subject to the special considerations relating tosupervisor expression discussed elsewhere in these Guidelines), such activity must stop if thelistener asks that it stops or otherwise demonstrates that it is unwelcome.

E. Accommodation of Religious Exercise. Title VII requires employers “ to reasonablyaccommodate... an employee’s or prospective employee’s religious observance or practice”unless such accommodation would impose an “undue hardship on the conduct of the employer’sbusiness.” 42 U.S.C. 2000e(j). For example, by statute, if an employee’s religious beliefs requireher to be absent from work, the Federal Government must grant that employee compensation


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time for overtime work, to be applied against the time lost, unless to do so would harm the abili tyof the agency to carry out its mission eff iciently. 5 U.S.C. 5550a.

Though an employer need not incur more than de minimis costs in providing an accommodation,the employer hardship nevertheless must be real rather than speculative or hypothetical.Religious accommodation cannot be disfavored relative to other, nonreligious, accommodations.If an employer regularly permits accommodation for nonreligious purposes, it cannot denycomparable religious accommodation: “Such an arrangement would display a discriminationagainst religious practices that is the antithesis of reasonableness.” Ansonia Bd. of Educ. v.Philbrook, 479 U.S. 60, 71 (1986).

In the Federal Government workplace, if neutral workplace rules -- that is, rules that do notsingle out religious or religiously motivated conduct for disparate treatment -- impose asubstantial burden on a particular employee’s exercise of religion, the Religious FreedomRestoration Act requires the employer to grant the employee anywhere the public reasonablywould perceive that the employee is acting in an off icial, rather than a private, capacity, or undercircumstances that would lead a reasonable observer to conclude that the Government isendorsing or disparaging religion. The Establishment Clause also forbids Federal employeesfrom using Government funds or resources (other than those faciliti es generally available togovernment employees) for private religious uses.

Section 3. General. These Guidelines shall govern the internal management of the civili anexecutive branch. They are not intended to create any new right, benefit, or trust responsibili ty,substantive or procedural, enforceable at law or equity by a party against the United States, itsagencies, its off icers, or any person. Questions regarding interpretations of these Guidelinesshould be brought to the Off ice of the General Counsel or Legal Counsel in each department andagency.

Documents

The Rights of Christians in the Workplace---American Center for …course1.winona.edu/bperatt/personal/Christian/First... · 2003-08-19 · The Rights of Christians in the Workplace---American