Christianity, Judaism, Islam,
Buddhism, and Hinduism are typically cited as the major religions of the world,
although there are many others that have tens of millions of adherents or
more. The United States has no official established religion, and instead
since its founding has guaranteed its citizens the right to free choice and
exercise of religion.
For state agencies and local
governments, these principles are not just abstractions but can come up in
daily work. In fact, public employers often face situations in which the
religious beliefs of their employees become a major issue. As a legal
matter, the U.S. Constitution, the California Constitution, and state and
federal statutes all demark boundaries that can guide public agencies in how to
address these issues.
Unfortunately, lines in this area are often
blurry. Also, the scenarios can involve firmly held, personal beliefs on
matters ranging in significance from the timing of daily religious practices to
the very meaning of life. Accordingly, workplace conflicts in this area
can quickly escalate into matters of high emotional intensity that affect
morale and harm productivity, and can easily develop into a grievance or
lawsuit.
The following is a brief
question and answer that explains the primary legal doctrines and addresses
some commonly-occurring factual scenarios.
1.
What if employees seek to proselytize in the public
sector workplace?
What if an employee spends a
substantial amount of time in the government workplace talking to co-workers
about religion? What if he or she uses the email system to invite
co-workers to church events or to explain positions on matters of faith?
These questions involve all of the sources of law mentioned above. In
particular, the First Amendment of the U.S. Constitution prevents the
government from creating an “establishment” of religion, from prohibiting the
“free exercise” of religion, and from abridging freedom of speech (including
certain speech in the government workplace). The California Constitution
contains similar provisions. Title VII, a federal civil rights statute
and California’s Fair Employment and Housing Act (“FEHA”) prohibit employers (both
public and private) from discriminating against employees on the basis of
religion, and require reasonable accommodation of employee religious practices.
As is evident from this list,
the laws sometimes appear to conflict – public employers cannot use their
resources to promote religion (under the Establishment Clause) but cannot
discriminate against employees on the basis of religion (under Title VII and
the FEHA) and are restricted in their ability to allow expression of some
viewpoints but not others (under constitutional free speech law), including
views on matters of faith.
Given these potentially
contradictory requirements, how does a public employer respond to employees who
wish to speak, e-mail, or otherwise communicate about religion in the workplace?
One approach many employers use is to establish a policy limiting employees’
use of work time and the employer e-mail system to work-related matters only
(typically with an allowance for incidental personal use, and a carve-out for
use mandated by labor relations laws). Pursuant to this type of rule,
employees may freely express their views on their own time as long as they do
not interfere with the work of others. But if an employee spends too much
time at work talking with co-workers about non-work-related matters, including
religion, then this can be addressed as a violation of the personnel
rule. The same is true of the employer’s email system. Lengthy
emails on religious topics can be found to violate the policy, not because of the
viewpoint expressed, but because of the lack of relationship to work. The
issue can certainly become more complicated, for example, if the religious
themes interweave with matters that relate to work, or if the employer does not
have this type of rule in place, and freely allows employees to use the email
system for purposes that do not relate to work. It is prudent to consult
legal counsel in these circumstances.
2.
What if employees seek to take time out for prayer
meetings in the public sector workplace – during the work day or on the
agency’s property?
This type of scenario raises
the same concerns as the previous one. The First Amendment and the
California Constitution limit a public agency’s ability to curb employee free
speech and association. But again, the use of government property to
promote religion can infringe principles of separation of church and state, and
violate the First Amendment’s Establishment Clause. A public employer’s
making special accommodations for, and expending resources to support, prayer
meetings can be problematic, because it could easily be viewed as the
government promoting religion.
To navigate these challenges,
many government employers adopt an approach similar to that described in the
previous section. They allow employees to use a break room or facility to
talk about basically any topic, on their own time. Employees can then use
the break room for prayer to the same extent employees are allowed to use the
room to talk about any other type of topic. For example, if
employees are allowed to use empty areas to congregate on their own time and
plan social events, employees should not be prohibited from using the area just
because their speech happens to be on religion.
This is the simple answer –
many circumstances will not present issues that are easily resolved. If
organized religious activities by some employees tend to create a hostile
environment for other employees, this will raise concerns under state and
federal laws that prohibit workplace harassment. Also, as described in
the next section, an employee may reasonably come forward and explain that his
religion requires prayers at particular times during the workday, and claim a
particular type of accommodation is necessary. Federal and state statutes
require reasonable accommodation of religious practices, and the employer will
have to evaluate the situation carefully to comply with those laws.
3.
What if employees request workplace accommodations for
religious dress or practices?
One the most important and
sometimes confusing obligations employers face is responding to requests for
workplace accommodations based on religion. Requests can include those
relating to religious dress, for examples, headscarves, turbans, or
burqas. Others can be more difficult: what if an employee requests for
religious reasons to carry a kirpan, a Hindu ceremonial knife that is supposed
to be worn at all times, in the workplace, even in areas where weapons are
prohibited? What if an agency employee asks to have religious icons or
images in offices or cubicles visible to the public whom the employee
serves? Similar issues can arise relating to Christmas or other holiday
decorations, Bible quotes or religious content as part of workplace
communications, refusals to take certain oaths, or requests not to work certain
days of the week.
California law is the first
place to look for answers. In general, it requires reasonable
accommodation of employees’ religious grooming and practices, unless
accommodation would impose an “undue hardship.” California’s FEHA sets
forth specific requirements as follows. It makes it unlawful for an
employer “to refuse to hire or employ a person or . . . to discharge a person
from employment or . . . discriminate against a person in compensation or in
terms, conditions, or privileges of employment because of a conflict between
the person’s religious belief or observance and any employment requirement, unless the
employer . . . demonstrates that it has explored any available reasonable
alternative means of accommodating the religious belief or observance
. . . , but is unable to reasonably accommodate the religious belief or
observance without undue hardship . . . .” (Emphasis
added.) This obligation includes the employer’s exploring “the
possibilities of excusing the person from those duties that conflict with his
or her religious belief or observance or permitting those duties to be
performed at another time or by another person.” (Government Code section
12940(l)(1).) Under the FEHA, undue hardship means “an action requiring
significant difficulty or expense,” when considered in light of factors such as
the “nature and cost of the accommodation needed,” financial resources of the
facilities and of the employer, the size of the business, and the type of
operations. (Gov. Code section 12926(u).)
The applicable federal
anti-discrimination law, Title VII, 42 USC sections 2000e-2(a)(1), 2000e(j),
imposes its own accommodation requirement on employers, including public
employers, and is in many ways similar to California law, although its
accommodation requirements are considered not as extensive. (The federal
Equal Employment Opportunity Commission provides some helpful guidanceon how to navigate the
accommodation process under federal law.)
In practice, applying these
standards often depends very much on individual facts and circumstances.
An employer should be proactive and diligent in considering accommodations,
and cautious in asserting the defense of undue hardship. Undue hardship
can often be shown where accommodation of the employee’s religious practice
would require significantly more than ordinary, administrative costs, impair
workplace safety, cause co-workers inordinately to assume burden of work, or
conflict with statute or regulation.
Finally, constitutional
considerations can enter the analysis. If a public employee demands, as
an accommodation, to be able to display religious icons to the public in
discharging work responsibilities or to proselytize to the public in some way,
this could well create First Amendment Establishment Clause or other
constitutional concerns. In turn, this would support a public employer’s
defense of undue hardship.
4.
What if an Employee invents his or her own religion?
If an employee invents his or
her own religion, that employee can actually benefit from statutory
anti-discrimination laws. A religion in this context does not need to
have existed for any length of time, or have any particular number of
adherents. It must, however, meet a definition of “religion” that has
been thoughtfully constructed by the Courts. In 2002, the California
Court of Appeal in Friedman v. Southern Cal. Permanente Medical Group, interpreting the protections
to individuals on the basis of religion that are afforded by the FEHA set forth
a three-part test. The test is designed to assure that the “beliefs,
observances, or practices” at issue occupy in the person’s life “a place of
importance parallel to that of traditionally recognized religions.” The
Court in Friedman described the three factors as follows:
“First, a religion addresses fundamental and ultimate questions having to
do with deep and imponderable matters. Second, a religion is
comprehensive in nature; it consists of a belief-system as opposed to an
isolated teaching. Third, a religion often can be recognized by the
presence of certain formal and external signs,” meaning for example “teachers
or leaders; services or ceremonies; structure or organization; orders of
worship or articles of faith; or holidays.” (The Court in Friedman, applying
this test, found that veganism is not a religion.)
The test set forth above is
California’s statutory test for defining a religion. Under the U.S.
Constitution, however, the test for what qualifies as a “religion” is more
conservative, and based on history and tradition. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the U.S. Supreme Court
concluded that Santeria, a hybrid African/Catholic faith mandating animal
sacrifice, constituted a “religion” entitled to First Amendment protection,
based in part on the “historical association between animal sacrifice and
religious worship.”
In conclusion, in terms of
practicalities, legal issues relating to religion in the workplace can have a
strong emotional dimension for those concerned. Sensitivity and tolerance are
extremely important in crafting solutions to these issues. Also,
management should consider at the outset that employees asking for
accommodation of religious beliefs or practices will likely understand what is
at stake for management and their co-workers, and will likely help management
arrive at a way to resolve the issue. Finally, working with legal counsel
is very important in resolving disputes that arise in this complex area of the
law.
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