Workplace Proselytizing: A
Cross Employers May Have to Bear
Michael Starr and Christine M. Wilson
The National Law Journal
Friday, January 05, 2007
The culture wars are coming to a workplace near you. There was a time when
religious discrimination cases arose from the claims of certain employees that
their work requirements be waived or that their work schedules be adjusted because
of a conflict with their religious obligations. But now a new kind of religious
discrimination claim is coming from those who feel they have a religious
obligation to affirm publicly in the workplace their religious beliefs,
proselytize to others or expressly oppose what they believe to be the sinful
behavior of their co-workers -- even if this conflicts with their employer's
anti-harassment or diversity policies that affirm the value of all employees
irrespective of their religion, sexual orientation or lifestyle.
Federal law prohibits employers from discriminating against employees on the
basis of religion. If an employee's sincerely held religious beliefs require
that employee to engage in observances or practices at work that conflict with
the employer's policy, it is the employer that must reasonably accommodate the
employee's needs unless doing so would cause an undue hardship. When an
employee's religiously based need to proselytize or affirmatively oppose
sinfulness conflicts with an employer's diversity policies or is experienced as
harassing by co-workers, employers that reflexively enforce their
anti-harassment policies run the risk of liability for
religious discrimination. Some effort to accommodate the employee's religious
practice must be made.
While employers often can lawfully discipline those who will not accept the
accommodation, they may sometimes be forced to tolerate conduct they disfavor
if it emanates from a sincerely held religious belief, even one that runs
counter to the workplace culture the employer is seeking to cultivate.
EEOC'S ANTI-HARASSMENT EFFORTS DREW A BACKLASH
Ironically, this conflict was presaged more than a decade ago when, in 1993,
the Equal Employment Opportunity Commission attempted to expand its already existing
regulation on sexual harassment into a general policy against all forms of
workplace harassment based on any classification under Title VII of the Civil
Rights Act of 1964. The proposed guidelines would have defined harassment as
activity that was offensive to a reasonable person in the victim's position. 58 Fed. Reg. 51266 (1993). That
definition caught the attention of evangelical Christians and their advocates
in Congress, like then-Sen. Jesse Helms, R-N.C., who
feared that a proselytizing evangelical could be accused of engaging in
discriminatory harassment if a "reasonable" atheist, secularist,
homosexual or unwed mother felt offended by the evangelical Christians' efforts
to convey God's word as they believed it to be.
Those in Congress who objected to the EEOC's
definition of workplace harassment precisely because it would, in their view,
impede an evangelical Christian's ability to proselytize in the workplace,
successfully attached riders to congressional appropriations prohibiting the
EEOC from taking any further steps to implement the proposed guideline. After a
few years of such legislative limitations, the EEOC stopped trying, and no
guidelines on workplace harassment (other than the original sexual harassment
guidelines) ever came to be. As a result, courts have slowly developed their
own approaches to proselytizing at work.
As evidenced by Ng v. Jacobs Eng'g Group,
No. B185838 (
Ng sued for religious discrimination, asserting that Jacobs Engineering
Group had failed to accommodate her religious practices. The court disagreed:
"If we were to require defendant to accommodate proselytizing in the
workplace, as plaintiff suggests, it would violate its own policy and be
subject to claims by other employees desiring to use company facilities to
share their own religious beliefs." Impeding Jacobs' ability to enforce
its anti-harassment policy was, said the court, sufficient undue burden to relieve
it of a duty to accommodate Ng.
If, however, the proselytizing activity is less pronounced or widespread,
the employer may be forced to accept it as a reasonable accommodation to
religious belief. In Banks v. Service America Corp., 952 F. Supp. 703
(D. Kan. 1996), the court upheld the right of two employees who continually
greeted customers with phrases such as "Praise the Lord" and
"God bless you." The employer, which ran the cafeteria in a factory,
preferred "Hello. What can I get for you today?" as the standard
greeting. Even though around 25 complaints were received, the court determined
that it would not unduly burden the employer to let the employees use the
religious greetings, basically because there was no showing that the customer
dissatisfaction would significantly affect the employer's profitability.
A similar situation arose in Powell v. Yellow Book USA Inc., 445 F.3d
1074 (8th Cir. 2006), where a recently converted evangelical Christian felt
obligated to expound her newfound religious beliefs to co-workers and to post
religious sayings in her workplace cubicle. When another employee complained,
the evangelizing employee stopped talking to that employee about religious
matters, but continued posting religious material in her cubicle.
The complaining employee continued to complain, and the employer moved that
employee to a cubicle farther away. In rejecting that employee's claim of
religious harassment, the court ruled that an employer "has no legal
obligation to suppress any and all religious expression merely because it
annoys a single employee," and that the employer acted correctly in moving
the complaining employee to another cubicle.
Employer-established diversity programs sometimes conflict with employees
who feel a religious duty to oppose sin. In Peterson v. Hewlett-Packard Co.,
358 F.3d 599 (9th Cir. 2004), Richard Peterson, a self-described "devout
Christian," felt religiously compelled to post at his work station
biblical passages denouncing homosexuality in response to diversity posters
hung by his employer that included an employee labeled as "gay."
Determining that the scriptural passages could be offensive to certain
employees, management asked that they be removed. Peterson responded that he
would remove his scriptures only if Hewlett-Packard removed its diversity
posters, which he viewed as condoning homosexuality. Peterson, though otherwise
a satisfactory worker, was fired for his refusal, as his postings violated the
company's anti-harassment policy, which forbade conduct that "failed to
respect the dignity ... of the individual." Allowing Peterson's posting of
the scriptures (unless that "gay" diversity poster was removed) was
not, the court ruled, a reasonable accommodation to Peterson's religion: It
would either force the employer to accept demeaning and harassing postings in
its workplace or infringe on its right to promote diversity and tolerance among
its work force.
ONE EMPLOYER SHOULD HAVE REWORDED DIVERSITY POLICY
There was an opposite result in Buonanno
v. AT&T Broadband LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004). There,
Albert Buonanno, a fundamentalist Christian employee,
was prohibited by his religious beliefs from endorsing behavior that scripture
repudiated. He thus refused to sign a "Certificate of Understanding"
attached to the company's code of conduct because it contained a "Diversity
Policy" that required each employee to "fully recognize, respect and
value" co-worker differences, as he could not conscientiously value any
difference that he found "contrary to God's word." For that refusal,
he was fired. That firing, the court found, violated Buonanno's
Title VII right to religious accommodation because the employer had failed to
communicate to him an interpretation of its diversity policy or, if necessary,
make minor changes to its wording that would assuage his objection to valuing
behavior scripture abhorred.
Going beyond mere anti-harassment policies, many businesses are pursuing
even broader diversity initiatives that set standards of mutual respect for all
employees. These encompass not only race, religion and ethnicity, but also
sexual orientation, gender identification and lifestyle choices (like unwed
parenthood). Diversity policies like these may be offensive to deeply religious
employees who feel compelled to publicly proclaim their opposition to practices
in the secular culture that they find sinful. Employers are generally permitted
to prohibit religious proselytizing at work that some employees feel compelled
to engage in. Because, however, federal discrimination law requires reasonable
accommodation to religion, employers must proceed carefully in enforcing their
secularist policies against those who assert religious-based objections to
compliance.
Michael Starr (mstarr@hhlaw.com) is
a partner in the labor and employment group of Hogan & Hartson,
resident in