By David L. Hudson Jr., First Amendment Scholar
September 16, 2002
Religious expression in the public workplace has become a contentious issue. Public employees claim they have a free-speech or free-exercise of religion right to express their religious beliefs on the job, often through speaking about their faith to other employees or wearing religious clothing or garb. Employers counter that they can prohibit such religious expression in order to prevent disruption and to avoid establishment-clause problems.
Legal commentator Brian Richard explains that “the role of religion in both the public and private workplace has become an embattled issue, challenging the boundaries of work and state, and resulting in a busy stream of litigation.”
Many of the cases involve employees’ symbolic expression, such as the wearing of clothing or other items of religious significance. Other cases involve employees speaking about their religious faith to co-workers or members of the public. Examples of litigation over religious expression the public workforce include:
In virtually all of these cases, a public employee asserts that an employer policy infringed on her or his constitutional right to religious expression. But, in every case the employer counters that either the employee speech was disruptive of a legitimate employer goal or the religious expression could lead to a church-state violation.
In each of these cases, a public employee alleges that the employer violated the worker’s religious-freedom rights under either the U.S. Constitution or a federal statute. Public employees have the protections of the First Amendment and Title VII of the Civil Rights Act of 1964, the major federal anti-discrimination law that covers virtually all public and private employers with 15 or more full-time employees. Employees in the executive branch of the federal government are also covered by the “White House Guidelines on Religious Exercise and Religious Expression in the Federal Workplace.”
Title VII generally prohibits an employer from discriminating against employees on the basis of race, color, sex, national origin or religion. Under Title VII, an employer must reasonably accommodate an employee’s religion unless doing so would create an “undue hardship.”
“Reasonable accommodation should be the standard,” says John Whitehead, president of the Rutherford Institute, a Virginia-based civil liberties organization that often advocates on behalf of individuals in religious free-expression cases. “The immediate goal of any employer should be reasonable accommodation.”
In 2002, Sens. John Kerry, D-Mass., and Rick Santorum, R- Pa., introduced the Workplace Religious Freedom Act of 2002, which would have amended Title VII to narrow the definitions of reasonable accommodation and undue hardship. Kerry stated in a news release: “This legislation asks only that employers make reasonable accommodations for an employee’s religious observance — and that we protect the best of America’s spiritual life even as we leave employers the flexibility they need to run their businesses.”
With respect to reasonable accommodations, the bill would have expanded workers’ religious freedoms by making it more difficult for employers to deny time off for religious holidays or to prevent the wearing of religious clothing. The bill stated that:
“to ‘perform the essential functions’ includes carrying out the core requirements of an employment position and does not include carrying out practices relating to clothing, practices relating to taking time off, or other practices that may have a temporary or tangential impact on the ability to perform job functions, if any of the practices described in this subparagraph restrict the ability to wear religious clothing, to take time off for a holy day, or to participate in a religious observance or practice.”
Under the bill, undue hardship would mean “an accommodation requiring significant difficulty or expense.” The bill failed to make its way out of a Senate committee.
The First Amendment’s free-speech and free-exercises clause also protect public employees’ religious speech. The free-exercise clause provides that the government may not prevent individuals from freely practicing their religious faith. Public employees do not forfeit all of their free-exercise rights when they take a government job. If a government employer or workplace rule targets an employee’s religious speech and causes a substantial burden on his or her religious faith, it can be justified only if the employer shows a compelling interest. More often employer policies do not intentionally target an employee’s religious faith but have an incidental impact. Legal commentators Michael Wolf, Bruce Friedman and Daniel Sutherland have written: “As one might expect there are relatively few workplace rules that are promulgated with the intention of restricting religious beliefs or behavior.”
Traditionally, under free-exercise jurisprudence, the government could not substantially burden a public employee’s free-exercise-of-religion rights, even if the rule did not specifically target the employee’s religious beliefs, unless the government could show that it had a compelling interest to do so. In its 1963 decision Sherbert v. Verner, the U.S. Supreme Court determined that the state of South Carolina could not deny unemployment compensation to a Seventh-day Adventist woman denied benefits because her religious faith prevented her from working on Saturdays. In later decisions, the Supreme Court applied the so-called “compelling interest” test in free-exercise cases. (See Thomas v. Review Board of Indiana Employment Security, 1981 and Wisconsin v. Yoder, 1972.) In Thomas, the Court stated that the government employer could satisfy this high threshold by showing that its regulation was “the least restrictive means of achieving some compelling state interest.”
However, in 1990 the Supreme Court altered free-exercise jurisprudence in its decision Employment Division v. Smith. In Smith, the Court ruled that the state of Oregon did not violate the First Amendment by denying unemployment compensation to two Native Americans fired from their jobs as drug counselors for their religious use of the hallucinogenic drug peyote. The Court determined that if a “neutral, generally applicable law” incidentally impacts religion, the government need not show any compelling interest. Under the Smith test, the government need only establish that the rule is rational. Several lower courts have extended the Supreme Court’s ruling in Smith to rules governing the workplace.
Public employee free-speech claims
As a practical matter, many public employee religious-expression cases are analyzed as free-speech cases. In 1968 in Pickering v. Board of Education, the Supreme Court determined that a public high school teacher’s First Amendment rights were violated when he was terminated for writing a letter to the editor critical of school administrators. The Court determined that it had to balance the employee’s right to free speech on matters of public concern against the employer’s general interests in an efficient workplace.
The Pickering test contains two parts: whether the employee speech touches on a matter of public concern, and if so, whether this employee speech-interest trumps the employer’s efficiency interests.
Many lower courts have applied a Pickering analysis to public employee religious-speech cases. For example, the 8th U.S. Circuit Court of Appeals wrote in Brown v. Polk County, Iowa: “Pickering dealt with free speech rather than the free exercise of religion, but because the analogy is a close one, and because we see no essential relevant differences between those rights, we shall endeavor to apply the principles of Pickering to the case at hand.”
Other federal appeals courts have also applied the Pickering standard to employee religious-expression cases. For example, the 2nd Circuit determined in Knight v. State of Connecticut Department of Public Health that two state health workers, nurse consultant Jo Ann Knight and sign language interpreter Nicole Quental, could be disciplined for proselytizing their religious faith to clients. Knight counseled a homosexual patient about Christianity and told him that God “doesn’t like the homosexual lifestyle.”
The 2nd Circuit determined that the employee’s speech that upset clients could be prohibited under the Pickering test: “Here the state showed permitting religious speech when working with clients was and would continue to be disruptive, and that disruption outweighed appellants’ free-speech interests.”
Employer establishment-clause defenses
In litigation, many public employers assert that they silenced an employee’s religious expression to avoid an establishment-clause conflict. The argument is that if the employer allows employees to speak about their religious faith on the job, the public will believe that the employer is sanctioning or endorsing the religious views.
In Knight, the state argued that allowing employees profess their religious faith to clients raised a church-state separation issue. The 2nd Circuit agreed, writing: “This permits the state to place a slight burden on appellants’ speech: Knight and Quental may not share their religious beliefs with clients while conducting state business.”
“In the federal workplace, you have Title VII and the First Amendment,” says Jeremy Leaming, a spokesman for Americans United for Separation of Church and State and former First Amendment Center staff writer. “But this does not give a government employee the unfettered right to proselytize in the workplace. As a state employee, [one] has a duty to uphold the rights of visiting members of the public. The employee abdicates his First Amendment rights to a certain degree when representing a public employer.”
Lower courts have reached differing conclusions when balancing an employee’s right to religious expression with an employer’s duty to not violate the establishment clause. Richards writes: “In sum, without any guidance from the Supreme Court, many of the federal circuits have applied a version of the Pickering balancing analysis. Circuits have afforded varying levels of deference to the employer’s fear of an Establishment Clause violation, resulting in factually similar cases with dissimilar results.”
The cases often focus on whether the employee proselytized his or her religious faith to co-workers or to the public. Courts are far more likely to find an establishment-clause violation if the employee proselytizes to the public. Wolf, Friedman and Sutherland write: “The courts have shown greater leeway towards employees who direct their proselytizing solely towards their co-workers, as long as the proselytizing is neither disruptive nor harassing.”
However, if an employee continues to proselytize to another co-worker after requests to stop, the employee may be creating a hostile work environment. “Public employees had better refrain from proselytizing on the job or else face harassment complaints,” says Leaming.
Employees do not lose their First Amendment rights when they work for a public employer. Title VII, the First Amendment and the 1997 White House Guidelines provide a degree of protection for employee religious rights. Some members of Congress support a version of the Workplace Religious Freedom Act, which would ensure that government workplaces are not religion-free zones.
The lower courts do not agree on what legal standards to apply to public employee religious-expression cases. Without further guidance from the Supreme Court, the issue is likely to remain unclear.