Christian Rights in the Workplace
January 27, 2007 • By The American Center for Law and Justice
Note: These articles apply only to employees working in the United States.For more on this topic see
http://www.aclj.org/News/Read.aspx?ID=431 to read the booklet, Christian Rights in the Workplace available through American Center for Law and Justice.
Employees of Private Organizations
Most employees work for private employers and these employees are primarily protected only by Title VII of the Civil Rights Act of 1964. They may also be protected by laws in their State similar to Title VII. State laws protecting the religious freedom of employees may provide more protection than Title VII, but generally they are very similar to the federal law. This article does not attempt to describe individual state laws therefore employees should consult an attorney who is licensed in their particular state to determine if state law provides them with added protection.
Here, we explain how employees of private organizations are protected by Title VII. The rules of law stated also apply to government employees, but focus on private employees because Title VII is usually their only remedy.
Can I share the Gospel with co-workers at work?
If required by their religious beliefs, an employee's religiously motivated expressions of faith are protected by Title VII. For instance, in conversations with other employees, you may refer to Biblical passages on slothfulness and "work ethics." Employees can engage in religious speech at work as long as there is no actual imposition on co-workers or disruption of the work routine. Generally, no disruption of the work routine will occur if an employee's witnessing takes place during breaks, or other free time. If other employees are permitted to use electronic mail and screen savers for speech that is not related to work, an employee who has a sincerely held religious belief to communicate their faith with others should also be able to use these modes of communication.
To ensure that their religious speech is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to share the Gospel whenever possible with willing co-workers during breaks or other free time. The employee must then inform the employer of this religious belief (preferably in writing). At that point, the employer must attempt to accommodate this religious belief unless it will cause the employer "undue hardship."
Can I keep my Bible or other religious items at my desk?
Yes. As with witnessing to co-workers, an employee can bring his Bible to work and keep it at his desk if he is required to do so by sincerely held religious beliefs. To ensure that this religious belief of having a Bible or other religious items at work is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to bring 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.
Do I have to work on Sundays if my religion prohibits it?
Employers must accommodate requests by employees for absence on their Sabbath or other religious holidays. An affirmative duty arises under Title VII for the employer to make a good faith effort to arrange the employee's schedule to allow the employee to have Sabbaths off. The employer will be in violation of Title VII if they have "made no real effort" or have taken a "don't care" attitude.
For instance, courts have held that an employer is required to accommodate a World Wide Church 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 the accommodation because they employed extra men at all times to cover unscheduled absences.
The employer's affirmative duty to attempt to accommodate the employee's request for time off is not limited if the employee asks for more than one accommodation. For instance, an employee who belongs to the World Wide Church of God requested time off in view of two sincerely 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 that accommodating one of these religious beliefs satisfied their duty under Title VII. But the Court ruled against the employer, refusing to "condone an employer's entire lack of effort to accommodate a given conflict merely because the employer offered to accommodate other ones."
The same rule applies where an employee's religious beliefs prevent him from working on Sundays, and prevent him from asking someone else to engage in this prohibited activity for him. Merely allowing the employee to swap shifts with someone does not constitute reasonable accommodation in this instance. In addition to allowing the employee to be off on Sundays, the employer has an affirmative duty to arrange a swap for the employee. Employees must be careful to specifically inform their employer of this religious belief not to ask anyone else to work on Sunday either.
In sum, employers must attempt to accommodate an employee's need for days off due to religious beliefs. At a minimum, the employer's duty to accommodate includes allowing employees to trade shifts, and may require the employer to arrange for the trade.
Can I go to work dressed in the particular fashion required by my religion?
Employers must accommodate religious beliefs requiring an employee to dress or groom in a certain manner, unless the rule prohibiting certain religious dressing is justified by a business necessity. The EEOC has ruled that a nurse whose Old Catholic faith required her to wear a scarf was unlawfully discharged for refusing to come to work without the scarf, because requiring the nurse to wear a cap instead of the scarf was "not so necessary to the operation of [the employer's] business as to justify the effect that this policy has upon the religious convictions." Title VII has also been found to protect an employee's religious belief that she must wear a Pro-Life button at all times, even at work.
An employer, however, does not discriminate against an employee by requiring him to shave his long facial hair and refrain from wearing a turban, if both of these religious practices result in safety hazards by preventing a hard hat and respirator from being worn properly.
Are there any types of religious beliefs or behavior not protected by Title VII?
Generally, all sincerely held religious beliefs are protected by Title VII. When a Title VII religious claim fails, it is often because the employer is able to show the employee was discriminated against for inefficiency, bad work product, or an inability to get along with co-workers rather than because of the asserted religious practice. A frequent example is when an employee's religious speech is couched in an argumentative, confrontational style that inhibits cooperation with other employees. In such cases, the court is likely to determine that the employee was not discriminated against because of his religious beliefs, but because of his offensive conduct in the office.
Do I have to attend training if it violates my religious convictions?
An employee cannot be required to attend training that will violate their sincerely held religious beliefs. The EEOC has ruled that an employer violates Title VII if it requires an employee to attend training containing a philosophy that conflicts with the employee's religious beliefs. The EEOC found that the employer failed to show how accommodating the religious convictions of these employees by not requiring them to attend the training would result in an undue hardship.
How do I file a claim under Title VII if my religious rights have been violated?
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 it may 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 a state that has set up an agency for handling discrimination claims. If your state does not have its own human rights commission or similar agency, you should file directly with the EEOC. Practically speaking, this means contacting the state agency or EEOC in your state by telephone and informing them that you wish to file a complaint. They will then instruct you on how and where to fill out the necessary paper work. In states that have an agency for handling these claims, filing with the state agency must be followed by timely filing the charge with the EEOC. Some state agencies will do this for you.
Usually the complaint must be filed within 180 days of the discriminatory act. The time period is measured from the date that the discriminatory act occurred. Upon the filing of the charge there is a 180 day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC or state agency that conciliation was completed, or the date the party receives a right to sue letter.
Government employees are protected by both Title VII and the United States Constitution against religious discrimination. Public employees do not forfeit their First Amendment rights upon entering the public workplace. Therefore, the religious freedom of government employees has the additional protection of the Free Exercise and Free Speech Clauses of the First Amendment to the United States Constitution. Below, we explain how government employees are protected by the First Amendment above and beyond the protection they have from Title VII.
As a government employee, is all my religious speech at work protected by the First Amendment?
A public employee receives greater speech protection when speaking "as a citizen upon matters of public concern" than he does when commenting on employment matters of personal or internal interest. When evaluating these cases, the Supreme Court has traditionally utilized a test which balances the importance of the employee's speech on a matter of public concern against the government's need to run an efficient workplace. Religious speech will always be a matter of public concern.
For example, in Tucker v. State of California Dept. of Education, 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 employee who believed that he was commanded to "give credit to God for the work he perform[ed]." He engaged in religious discussions, and kept religious material around his work area. Tucker prevailed when the court weighed the state's asserted interests of efficiency, protecting the liberty interests of other employees, and avoiding Establishment Clause issues against the weight of a "broad ban on group speech." The court rejected the employer's contention that the religious 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 Establishment Clause because there was no way it could have been attributed to the state.
Therefore, religious speech of government employees is protected so long as it does not significantly reduce efficiency in the workplace, and so long as it will not be attributed to the government employer.
As a government employee, can I keep religious items in my personal work area?
The First Amendment also protects the right of public employees to keep items with religious messages on them at their desk. In a case where an employee had a Bible and plaques containing the serenity prayer, the Lord's Prayer, and one that said, "God be in my life and in my commitment" in his office, the government employer violated the First Amendment when it demanded that these items be removed because they might be considered "offensive to employees." The fact that other employees may find these items offensive is irrelevant when considered in light of First Amendment freedoms.
As a government employee, can I advertise events at my church on the bulletin board at work?
If a government employer allows employees to post non-work related material around the office, they cannot prohibit the posting of religious material. "[I]t is not reasonable to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials." Religious speech is given the same expansive protections offered to secular speech inviting "employees to motorcycle rallies, swap meets, x-rated movies, beer busts, or burlesque shows." Allowing this speech while prohibiting advertising for religious events "is unreasonable not only because it bans a vast amount of material without legitimate justification but also because its sole target is religious speech."
Doesn't religious speech by government employees violate the "Separation between Church and State?"
The oft cited phrase "separation between church and state" is found nowhere in the Constitution. This phrase has been misused by many in this country to mislead people and trick them into believing that the government can have absolutely nothing to do with religion. The truth is the Constitution only prohibits the establishment of religion through the Establishment Clause of the First Amendment.
The Establishment Clause of the First Amendment does not provide the government with any justification for prohibiting religious expression in the workplace. As the United States Supreme Court said in this regard: "The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.
We emphasize, too, that fear alone, even fear of discrimination or other illegal activity, is not enough to justify such a mobilization of governmental force against [an employee]…. A phobia of religion, for instance, no matter how real subjectively, will not do. As Justice Brandeis has said, ‘…Men feared witches and burnt women.’"
In August of 1997, President Clinton took the remarkable step of issuing guidelines confirming that 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…." The guidelines are instructive for all government employees and employers.
In sum, governmental employers may restrict religious activity in the workplace only if it prohibits the government from running an efficient workplace, or there is clear evidence that it is intimidating or harassing to co-workers. Speculative fears of offense or employee discontent do not provide the government with an excuse for discriminating against religious employees who express their faith through words, actions, or symbols.
Employer Religious Beliefs
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 discouraged many business owners from communicating their religious convictions at work. The good news is that, just like employees, business owners do not have to check their religion at the door when they come to work. The following information provides some guidance for religious employers who want their business to reflect their faith.
Do employers unlawfully discriminate if they base business objectives and goals upon Biblical principles?
No. An employer does not discriminate on the basis of religion by affirming the faith of its owners in business objectives. "Title VII does not, and could not, require individual employers to abandon their religion." Employers must be careful, however, not to give prospective or current employees the perception that employment or advancement with the company depends on acquiescence in the religious beliefs of the employer. This can be accomplished in a number of ways. For instance, applications for employment should state that applicants are considered for all positions without regard to religion. This statement should also be included in any orientation materials, employee handbooks, and employee evaluation forms. Of course, employers must also be sure that this statement is accurate but not discriminating on the basis of religion.
As the owner of the business, can I witness to my employees?
An employer can talk about his religious beliefs with employees as long as employees know that continued employment or advancement within the company is not conditioned upon acquiescence in the employer's religious beliefs. For instance, one court has held that an employer did not discriminate against an employee by sharing the gospel with him and inviting him to church. Employers must be careful, however, not to persist in witnessing if the employee objects. Such unwanted proselytizing could be deemed religious harassment. Employers cannot impose their religious beliefs on their employees.
Am I permitted to give my employees religious literature?
As with spoken religious speech, employers can share their religious beliefs with their employees in print form such as pamphlets, books, and newsletters. Employers must be careful, however, not to give employees the impression that they have to agree with the employer's religious beliefs in order to keep their job or get a promotion. For instance, in one case a Jewish employee was wrongfully terminated for complaining about the printing of Bible verses on his paychecks and the religious content of a company newsletter. If an employer shares religious convictions with employees, and the employee disagrees or protests, no adverse action can be taken against the employee.
Furthermore, employers should be ready to accommodate any employee's objections to the religious speech contained in publications distributed to employees. Sufficient accommodation may be to provide the objecting employee with a publication that does not contain the religious content. In order to counter any impression given by publications that job security and advancement are contingent upon faith, it is also recommended that publications with religious material state that the employer does not discriminate on the basis of religion for purposes of continued employment, employee benefits, or promotion.
Can an employer hold regular prayer meetings or chaplain services for employees?
Employers can hold regular devotional meetings for employees so long as attendance is not required. Moreover, active participation of management in these meetings does not make them discriminatory. To ensure that employees understand that devotional meetings are voluntary, notice of the meetings should state that they are not mandatory and it is wise to hold these meetings before the work day begins, during breaks, or after work.
Can I require my employees to attend training based on Biblical principles?
Employers can use training programs that are based on the Bible. For instance, requiring an employee to attend a management seminar put on by the Institute of Basic Life Principles which used scriptural passages to support the lessons it sought to promote did not violate a Massachusetts civil rights law. Employees cannot, however, be required to undergo religious training, participate in religious services, or engage in behavior that would violate their sincerely held religious beliefs.
Used by permission of the ACLJ. For further questions and answers regarding Christian rights in the workplace, or to see the dozens of endnotes associated with the content of this article, please visit www.aclj.org