Religious Activity of Employees

Court ruling favors employee in religious discrimination suit.

Church Law and Tax 1996-09-01

Freedom of Religion

Key point. Employees do not have an unlimited right to engage in religious activities during the course of their employment. On the other hand, employers cannot prohibit all religious expression by their employees.

A federal appeals court addressed the important question of the extent to which employees can engage in religious activities during the course of their employment. A county government employed a conservative Christian as director of its data processing department. The county launched an internal investigation into the director’s religious activities following a number of complaints by other employees. The investigation revealed that (1) the director had his secretary type Bible study notes for him; (2) several employees said prayers in the director’s office on a number of occasions prior to the start of the workday; (3) several employees said prayers in the director’s office during departmental meetings conducted during the workday; and (4) in addressing employee meetings the director affirmed his Christian faith and referred to Bible passages relating to “slothfulness.” The county reprimanded the director and ordered him to “immediately cease any activities that could be considered to be religious proselytizing, witnessing, or counseling and further to cease to utilize county resources that in any way could be perceived as to be supporting a religious activity or organization.” The director was later ordered to remove from his office all items having a religious connotation, including a Bible on his desk. The director was later dismissed, and he sued the county claiming that the county’s demand that he refrain from any religious activities and remove all items from his office having any religious connotation violated his constitutional right to freely exercise his religion. He also argued that his dismissal amounted to religious discrimination in violation of Title VII of the Civil Rights Act of 1964 (which bans discrimination on the basis of religion in employment decisions, including dismissals). A trial court ruled in favor of the county, and the director appealed.

A federal appeals court agreed in part with the director. It began its opinion by noting that Title VII of the Civil Rights Act of 1964 prohibits covered employers from dismissing an employee on account of religion “unless an employer demonstrates that it is unable to reasonably accommodate an employee’s religious observance or practice without undue hardship on the conduct of [its] business.” The court noted that the county had made no attempt to accommodate the director’s religious practices, and therefore it could defend against the charge of religious discrimination only by demonstrating that it would have suffered “undue hardship” had it not dismissed the director. The court cautioned that “undue hardship” must be real rather than speculative, and that it requires more than “some fellow worker’s grumbling.” An employer must demonstrate “actual imposition on co—workers or disruption of the work routine.” The court agreed with the county that allowing the director to have his secretary type Bible study notes would impose an undue hardship on the county, and therefore a dismissal based on this conduct would not violate Title VII. The court reached the same conclusion with regard to the prayer meetings conducted in the director’s office prior to the start of the workday. It noted that “nothing in Title VII requires that an employer open its premises for use before the start of the workday.” However, the court disagreed that the county would have suffered “undue hardship” by allowing the director to utter occasional and spontaneous prayers during departmental meetings or to make occasional affirmations of religious faith. The court concluded that such expressions were “inconsequential … especially since they were apparently spontaneous and infrequent” no employee complained about them. They did not result in “actual imposition on co—workers or disruption of the work routine.” As a result, the court concluded that the director could maintain his religious discrimination lawsuit against the county.

The court also concluded that the county’s actions may have violated the director’s first amendment right to freely exercise his religion. It observed:

We may concede for the sake of argument that [the county] has a legal right to ensure that its workplace is free from religious activity that harasses or intimidates. But any interference with religious activity that the exercise of that right entails must be reasonably related to the exercise of that right and must be narrowly tailored to its achievement. Here, there was not the least attempt to confine the prohibition to harassing or intimidating speech. Instead [the county] baldly directed [the director] to “cease any activities that could be considered to be religious proselytizing, witnessing, or counseling.” That order exhibited a hostility to religion that our Constitution simply prohibits. It would seem to require no argument that to forbid speech “that could be considered” religious is not narrowly tailored to the aim of prohibiting harassment, although it is certainly capable of doing that. If [the director] asked someone to attend his church, for instance, we suppose that that “could be considered” proselytizing, but its prohibition runs afoul of the free exercise clause. Similarly, a statement to the effect that one’s religion was important to one’s life “could be considered” witnessing, yet for the government to forbid it would be unconstitutional ….

[The director] also complains about the directive to remove from his office all items with a religious connotation, including a Bible that was on his desk. It is here, perhaps, that the zealotry of the county administrator is most clearly revealed. [The director] had to remove a plaque containing the serenity prayer (“God, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference”), another that said “God be in my life and in my commitments,” and a third containing the Lord’s Prayer. Most intrusive of all was the order to take down a poster that proclaimed some non—religious inspirational [sayings] that were deemed inappropriate because their author, although he occupied no religious office, had “Cardinal” in his name. [The director] was told that these items had to go because they might be considered “offensive to employees” …. We emphasize … that even if employees found [the director’s] displays “offensive,” [the county] could not legally remove them if their “offensiveness” was based on the content of their message. In that case the county would be taking sides in a religious dispute, which, of course, it cannot do ….

This case provides important guidance on what kinds of religious activities employees of secular employers (both governmental and private) can engage in without interference from their employer. Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995). [ The Civil Rights Act of 1964, The Establishment Clause, The Right to Witness]

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