EMPLOYEE RELIGIOUS
EXPRESSION AT WORK
PRESENTED BY:
MARK GOULET
&
MELANIE CHARLESTON
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Let’s Organize This Talk…..
Context matters:
• Applicable Laws
• Limitations on Employee Religious
Expression
• Real Life Scenarios
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Federal Laws
•  First Amendment of the U.S. Constitution
•  Title VII of the Civil Rights Act of 1964
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United States Constitution
First Amendment in the Bill of Rights to the U.S.
Constitution reads:
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof;”
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First Amendment Tension
Establishment Clause vs. Free Exercise Clause
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Title VII
Prohibits an employer from discriminating
with respect to compensation, terms, conditions, or
privileges of employment because of a person’s
religion.
Religion includes all aspects of religious observance,
as well as belief, unless an employer demonstrates
that it is unable to reasonably accommodate an
employee’s religious observance or practice without
undue hardship.
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Texas State Laws
•  Constitution – Freedom of Worship Clause
•  Religious Freedom Restoration Act
•  Commission on Human Rights Act - (Title VII)
•  Texas Education Code 21.406
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Texas Constitution
Article 1 § 6 (in part)
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 FREEDOM OF WORSHIP. All men have a
natural and indefeasible right to worship
Almighty God according to the dictates of their
own consciences.
No human authority ought, in any case whatever,
to control or interfere with the rights of
conscience in matters of religion…
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Texas Religious Freedom
Restoration Act
Protects free exercise of religion, defined as “an
act or refusal to act that is substantially
motivated by sincere religious belief.” Tex. Civ.
Prac. & Rem. Code § 110.001(a)(1).
Prohibits a government employer from
substantially burdening an employee’s free exercise
of religion, unless the burden is the least restrictive
way of furthering a compelling governmental
interest. Tex. Civ. Prac. & Rem. Code § 110.003.
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TEC §21.406
A school district may not deny an educator a
salary bonus or similar compensation given in
whole or in part on the basis of educator
attendance because of the educator’s absence
from school for observance of a holy day
observed by a religion whose places of worship
are exempt from property taxation under
Section 11.20, Tax Code.
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Limitations on Employee
Religious Expression
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PRAYER
•  It makes a big difference whether teachers pray
on their own, with other teachers, or with
students.
•  Teachers who pray alone or with other adults
(voluntarily) have the 1st Amendment right
to do so.
•  Not so when students
are around.
•  We do have case law on this….
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Doe v. Duncanville ISD
•  5th Circuit clearly said that teachers/coaches
participating in prayer with students at
school/school activities is an improper
entanglement in religion and signals an
unconstitutional endorsement of religion.
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Jewelry, Posters, Books….
•  The dividing line between the teacher’s
personal items and classroom displays
is not clear.
•  No case law prohibits teachers from wearing
religiously oriented jewelry.
•  Displays in the classroom, even if the teacher
thinks of them as “personal” may present a
problem. See next slide!
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Teacher Can Go Too Far
•  In Roberts v. Madigan, the 10th Circuit held that
the elementary teacher created an overly religious
atmosphere in the classroom with a poster,
books, and a prominently displayed
Bible from which he read (silently)
every day. 921 F.2d 1047 (10th Cir. 1990).
•  Thus the principal did not violate
the teacher’s rights when he ordered these
items removed.
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Here’s the Balance One Court Struck
•  “School employees may not display crosses,
religious images, quotations, Bibles or religious
texts, etc. on walls, filing cabinets, halls, lobbies,
locker rooms, windows and doors unless for
pedagogical, non-religious reasons.”
•  Note: no restriction on jewelry, personal
items on desk.
•  Source: Settlement of Schultz v. Medina Valley
ISD.
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Dress Code Restrictions
•  Must be neutral and generally applicable.
▫  Exception for religious purpose required if If
exception for secular purpose allowed
•  May be permissible if dress causes undue
hardship
•  Dress promoting religion not permitted
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Attendance
•  Denial of compensation prohibited by
TEC 21.406
•  Under Title VII adverse employment action
based on absence to observe religious holy
day prohibited absent undue hardship
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Scenarios
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Scenario 1
Teacher Crosby has bus duty every Monday and
Wednesday, starting at 7:10 a.m. On other days, the
teacher is expected to report for duty no later than 7:40
a.m. Last year, the local See You at the Flagpole event
occurred on a Wednesday at 7:30 a.m. Because he was
on bus duty at the time, Teacher Crosby was present,
but did not participate in the prayer by praying aloud
or by joining hands with the group. This year, the
event will take place on a Thursday at 7:30 a.m., before
the teacher is technically on duty. Teacher Crosby asks
his principal whether he may participate in the prayer
circle.
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Scenario 2
Ms. Coral teaches high school chemistry. She is
also a Buddhist, and in her classroom on the wall
next to her desk, she displays a calendar with
images of the Buddha. A student notices the
religious symbols and complains to the school
principal.
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Scenario 3
The Christmas season is upon us. Mrs. Noel arrives
to teach middle school history wearing a shirt that
reads, “Jesus is the reason for the season.” A
fellow teacher complains to the principal.
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Scenario 4
After a recent local tragedy in which two students
were killed by a drunk driver, school employees
agree to meet before school to pray for the families
and the students affected by this loss.
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Scenario 5
Ms. Harper is a high school science teacher. She
includes a Bible verse as a tagline at the end of
every email that she sends, including the ones she
sends from her district-provided email account.
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Scenario 6
Mr. Washington is a middle school history teacher.
During a lesson on our founding fathers a student
asks Mr. Washington if he is a Christian.
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Concluding Words
•  Know your district’s relevant policies
including how to handle complaints.
-DIA (Legal) (Local)
•  Be consistent in application of policy and
practices.
•  Ensure district instructional and administrative
staff understand employee religious expression
rights.
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Mark Goulet
Austin Office
505 E. Huntland Dr.
Suite 600
Austin, TX 78752
Ph: (512) 454-6864
Fax: (512) 467-9318
Email:[email protected]
Melanie Charleston
Houston Office
10375 Richmond Ave.
Suite 750
Houston, TX 77042
Ph: (713) 789-6864
Fax: (713) 789-9318
Email:[email protected]
Web: www.WalshGallegos.com
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The information in this handout was created
by Walsh Gallegos Treviño Russo & Kyle P.C.
It is intended to be used for general
information only and is not to be considered
specific legal advice. If specific legal advice is
sought, consult an attorney.
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