texaslawyer.com ❘ May 10, 2016
If Tolerance for Religious Expression
in Public is Waning, What Does That
Mean for the Workplace?
By Lee Winkelman and Alan Bush
Photo: Diego M. Radzinschi/NLJ
Religious expression is
often tangled up with religious
belief. It can be controversial—­
­
especially at work. Take, for
example, Christianity. The Bible
just hit the No. 6 slot on the
American Library Association’s
list of the most challenged books.
Christ himself said that his
followers stand out from their
surroundings like salt and light.
The Christian faith requires action.
The book of James leaves no room
for discussion: “Don’t just listen
to God’s word. Do what it says.”
And Christ-­
followers bring their
faith to work. Other religions echo
the same sentiments. Let’s unpack
how in-house counsel can help HR
make the call between religious
expression and harassment.
Title VII of the Civil Rights
Act of 1964 protects religious
belief and expression at work. It
bans employment discrimination
because of religious belief. A step
further, Title VII requires employers
to “reasonably accommodate” an
employee’s religious observance
or practice unless doing so would
result in an “undue hardship” on
the employer’s business.
Demonstrators outside the U.S. Supreme Court on Tuesday, March 25, 2014,
during arguments in Burwell v. Hobby Lobby Stores, Inc.
Some religious practices look
easier to accommodate than others.
Typically,
an
accommodation
doesn’t expose co-workers to
the meat of an employee’s faith.
Granting time off for religious
observances or letting an employee
wear religious garb fall into that
category. But sometimes, an
employee practices his religion
by expressing it. Think sharing
religious beliefs with co-workers.
Christ made no bones about it,
telling his disciples to “go and make
disciples of all nations.”
Even religious expression must
be reasonably accommodated.
But if the expression crosses the
line into religious harassment, it’s
a Title VII no-no. The employer’s
duty to accommodate one
employee’s religious practice
knocks up against its duty
to provide a harassment-free
workplace for everyone else.
That leaves the employer, as one
court put it, “between a rock and
a hard place.”
Take this hypothetical: Richard
works in a regional office of a
large, multinational corporation
with thousands of employees
worldwide. He’s worked there
over 20 years with a solid record.
He would call himself a “devout
Christian” and believes that
homosexual behavior is a sin
because the Bible says so. One
day, Richard comes to work and
sees several new posters around
the office as part of a companywide diversity initiative. Each
poster depicts a fellow employee
with the slogan “Diversity is
Our Strength.” One also had the
caption “Gay.” In protest, ­Richard
posts two passages from the
Bible that condemn homosexual
behavior right above his cubicle.
Richard’s faith just ran headfirst into his employer’s antiharassment policy, so his supervisor
asks Richard to remove the signs.
Who wins out? Is it Richard with
his right to religious expression?
Or his employer with its obligation
to avoid religious discrimination
in the workplace? That’s the call
the Ninth Circuit faced in Peterson
v. Hewlett-Packard in 2004.
The Peterson court sided with
the employer, so the employee’s
signs had to come down. The
Ninth Circuit cut right to it: “An
employer need not accommodate
an employee’s religious beliefs
if doing so would result in
discrimination against his coworkers.” The court’s right. An
employee’s right to religious
freedom ends where a co-worker’s
right to a workplace free from
religious harassment begins. If
allowing religious expression,
such as proselytization, would
subject the employer to religious
harassment claims from coworkers, it constitutes an undue
burden. The employer can step in
there.
There’s one trick—deciding
when religious expression has
crossed into illegal harassment
is not an exact science. The
Ninth Circuit admitted it in
Peterson. The court explained
that Title VII wasn’t designed
for “[c]omplete harmony in the
workplace.” Accommodating an
employee’s religious expression,
said the court, does not create
undue hardship just because his
co-workers “find his conduct
irritating or unwelcome.” Bottom
line, co-workers’ discomfort
with religious expression alone
doesn’t warrant censoring it.
Censoring religious expression
too early can get a company nailed
too. Check out the Eighth Circuit’s
opinion in Brown v. Polk County,
Iowa. The county’s IT director,
Isaiah Brown, got fired, and he
sued for failure to accommodate
his religious practices. He allowed
spontaneous ­
Christian prayers,
openly affirmed his Christianity
and referred to Bible passages
at department meetings. The
county played a textbook defense:
We can’t let this go because
Brown’s subordinates and coworkers might hit us for religious
discrimination. But the Eighth
Circuit saw no undue burden.
Why? The county’s c­
oncerns
were too “hypothetical.” After
all, the county couldn’t point to
any proof that Brown’s practice
had actually imposed on his coworkers or disrupted their work.
Brown won his lawsuit.
In-house counsel and HR
can learn from Polk County’s
mistake. Lock in on these things.
Are concerns about harassment
founded or hypothetical? Is the
religious expression unwelcome
or uninvited? Does it impose
personally and directly on coworkers—especially by demeaning
their religious beliefs? Does
the expression truly threaten
productivity or disrupt co-workers’
work environment or their ability
to work? Had Polk County done
that, its case might have gone the
other way.
Gold standard, an employer can
have a specific policy on religious
harassment and accommodation.
In it, religious harassment would
be defined in broad terms and
banned. The employer would also
explain that it must accommodate
religious practices. The policy
would, of course, lay out
procedures to report, investigate
and correct both harassment
and the failure to accommodate
religious practices.
Silencing religious speech isn’t
the answer—balancing it is. HR
may look to in-house counsel to
play referee. Heads up.
Lee Winkelman and Alan Bush are
attorneys at the Bush Law Firm in The
Woodlands. They represent companies
in labor and employment matters. They
speak and write extensively, breaking
the law down into actionable business
points.
Reprinted with permission from the May 10, 2016 edition of the Texas Lawyer © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is
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