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 Sikh 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 guidance on 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 Friedmandescribed 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.
David Urban, attorney in the Los Angeles office of Liebert Cassidy Whitmore, represents organizations in all aspects of labor and employment law. He can be reached at durban@lcw.wpxnew.riefmedia.com.
This article was originally published in Western City Magazine (December 2016 Cover Story) & Public CEO (December 2016 Issue).
