Chapter Two - Employees Of Private, Non-Government Organizations
Most employees work for private employers, not for the government. These employees are primarily protected only by Title VII. They may also be protected by laws in their State similar to Title VII. State laws protecting the religious freedom of employees may provide more protection than Title VII, but generally they are very similar to the federal law. This booklet does not attempt to describe individual state laws therefore employees should consult an attorney who is licensed in their particular state to determine if state law provides them with added protection.
This chapter explains how employees of private organizations are protected by Title VII. The rules of law stated apply to government employees, but focus on private employees because Title VII is usually their only remedy.
Q Can I share the Gospel with co-workers at work?
A If required by their religious beliefs, an employee's religiously motivated expressions of faith are protected by Title VII. For instance, in conversations with other employees, you may refer to Biblical passages on slothfulness and "work ethics."18 Employees can engage in religious speech at work as long as there is no actual imposition on co-workers or disruption of the work routine.19 Generally, no disruption of the work routine will occur if an employee's witnessing takes place during breaks, or other free time. If other employees are permitted to use electronic mail and screen savers for speech that is not related to work, an employee who has a sincerely held religious belief to communicate their faith with others should also be able to use these modes of communication.
To ensure that their religious speech is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to share the Gospel whenever possible with willing co-workers during breaks or other free time. The employee must then inform the employer of this religious belief (preferably in writing). At that point, the employer must attempt to accommodate this religious belief unless it will cause the employer "undue hardship."
Q Can I keep my Bible or other religious items
at my desk?
A Yes. As with witnessing to co-workers, an employee can bring his Bible to work and keep it at his desk if he is required to do so by sincerely held religious beliefs. To ensure that this religious belief of having a Bible or other religious items at work is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to bring these items to work. The employee must then inform the employer of this religious belief (preferably in writing). The employer is then required to attempt to accommodate this belief.
Q Is my employer permitted to restrict what I say
when I am not at work?
A Employers generally cannot discriminate against employees because of religious speech expressed outside of the workplace.20 The only possible exception is if speech activity engaged in outside the workplace directly affects the employee's ability to perform his job properly. For instance, even though not acting in their official capacity, judges have been prohibited from speaking out about issues on which they may have to rule.21
Q Do I have to work on Sundays if my religion
A Employers must accommodate requests by employees for absence on their Sabbath or other religious holidays. An affirmative duty arises under Title VII for the employer to make a good faith effort to arrange the employee's schedule to allow the employee to have Sabbaths off. 22 The employer will be in violation of Title VII if they have "made no real effort" or have taken a "don't care" attitude.23
For instance, courts have held that an employer is required to accommodate a World Wide Church of God employee who observed his Sabbath from sunset on Friday to sunset on Saturday. The reason for this decision is that the employer did not incur additional costs from the accommodation because they employed extra men at all times to cover unscheduled absences. 24
The employer's affirmative duty to attempt to accommodate the employee's request for time off is not limited if the employee asks for more than one accommodation. For instance, an employee who belongs to the World Wide Church of God requested time off in view of two sincerely held religious beliefs: (1) attending a religious festival during her normal working shift, and (2) refraining from all work during the religious festival. The employer argued that accommodating one of these religious beliefs satisfied their duty under Title VII. But the Court ruled against the employer, refusing to "condone an employer's entire lack of effort to accommodate a given conflict merely because the employer offered to accommodate other ones."25
The same rule applies where an employee's religious beliefs prevent him from working on Sundays, and prevent him from asking someone else to engage in this prohibited activity for him. Merely allowing the employee to swap shifts with someone does not constitute reasonable accommodation in this instance. In addition to allowing the employee to be off on Sundays, the employer has an affirmative duty to arrange a swap for the employee.26 Employees must be careful to specifically inform their employer of this religious belief not to ask anyone else to work on Sunday either.
In sum, employers must attempt to accommodate an employee's need for days off due to religious beliefs. At a minimum, the employer's duty to accommodate includes allowing employees to trade shifts, and may require the employer to arrange for the trade.
Q Can my employer force me to work on jobs that support abortion?
A Title VII requires employers to accommodate employees who refuse to do specific tasks because of a conflict with religious beliefs. For instance, an employer has been required to accommodate a religious worker's objections to abortion.27 In that case, an Internal Revenue Service employee refused to handle applications for tax exempt status submitted by any organization which supported abortion. The court ruled that accommodating the employee would not result in undue hardship to the employer because the number of applications the employee might refuse to handle would be relatively insignificant as compared to his total workload.
So employees who have a religious objection to abortion can request that their employer not require them to work on projects involving abortion. The employer will be required to grant this request if it can assign these projects to other employees without undue hardship.
Q Can my employer require me to speak in a way that violates my religious convictions?
A An employee cannot be forced to speak in a manner that would violate his religion. For example, when an employee was fired for refusing, based on religious beliefs, to answer the telephone with "Merry Christmas, Lesco," the court found that the employer should have accommodated the Jehovah's Witness employee's religious convictions regarding the observance of Christmas.28 The employer should have provided other ways for the employee to answer the phone or assigned her to a different task during the Christmas season.
Q Do I have to pay union dues if it would violate my religious beliefs?
A Many employees object to the causes that some unions support, such as Planned Parenthood, or other pro-abortion organizations. Several courts have held that those objecting to the payment of union dues on religious grounds should be accommodated by allowing employees to contribute an amount equal to their dues to an acceptable charity.29 Another possible accommodation is discounting the union dues in proportion to the amount of money spent on the objectionable union activity.30
Q Can I go to work dressed in the particular fashion required by my religion?
A Employers must accommodate religious beliefs requiring an employee to dress or groom in a certain manner, unless the rule prohibiting certain religious dressing is justified by a business necessity. The EEOC has ruled that a nurse whose Old Catholic faith required her to wear a scarf was unlawfully discharged for refusing to come to work without the scarf, because requiring the nurse to wear a cap instead of the scarf was "not so necessary to the operation of [the employer's] business as to justify the effect that this policy has upon the religious convictions."31 Title VII has also been found to protect an employee's religious belief that she must wear a
Pro-Life button at all times, even at work.32
An employer, however, does not discriminate against an employee by requiring him to shave his long facial hair and refrain from wearing a turban, if both of these religious practices result in safety hazards by preventing a hard hat and respirator from being worn properly.33
Q Are there any types of religious beliefs or behavior not protected by Title VII?
A Generally, all sincerely held religious beliefs are protected by Title VII. When a Title VII religious claim fails, it is often because the employer is able to show the employee was discriminated against for inefficiency, bad work product, or an inability to get along with co-workers rather than because of the asserted religious practice. A frequent example is when an employee's religious speech is couched in an argumentative, confrontational style that inhibits cooperation with other employees.34 In such cases, the court is likely to determine that the employee was not discriminated against because of his religious beliefs, but because of his offensive conduct in the office.35
Q Do I have to attend training if it violates my
A An employee cannot be required to attend training that will violate their sincerely held religious beliefs. The EEOC has ruled that an employer violates Title VII if it requires an employee to attend training containing a philosophy that conflicts with the employee's religious beliefs.36 The EEOC found that the employer failed to show how accommodating the religious convictions of these employees by not requiring them to attend the training would result in an undue hardship.
Q When can my employer refuse to accommodate my religious beliefs because it will cause an undue hardship?
A There are very few times when employers can require employees to violate their religious beliefs, or refuse to allow the employee to practice his religious beliefs at work. Employees can take such actions only if it would cause the employer an undue hardship. In order to successfully assert this defense, courts require that the employer demonstrate attempted accommodation before claiming undue hardship.37
Employers must also be able to show evidence of undue hardship that is more than mere speculation.38 For example, undue hardship requires more than proof that other employees would grumble or be unhappy about a particular accommodation.39
[A]n employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operative routine. In addition, we are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that never has been put into practice. The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.40
An employer is not required however, to accommodate a particular religious belief if it would require more than a de minimis cost. For instance, an employer does not have to accommodate a religious belief to be off on Sundays if it would cause the employer to adjust the seniority policy and pay overtime to a replacement.41 Employers may also consider public safety when establishing undue hardship. For instance, substituting an untrained employee for a highly trained lineman to work on high-voltage power lines could result in undue hardship.42
It should also be emphasized that the Establishment Clause has absolutely no bearing on private employers. At the ACLJ we often hear private employers attempt to justify their discriminatory treatment of religious employees by quoting the phrase "separation of church and state." Even if this phrase were the law, and it is not, it would not require private employees to have religion-free work environments. Private people or companies are not the government and therefore can never violate the Establishment Clause.43
Q How do I file a claim under Title VII if my religious rights have been violated?
A It is recommended that the employee contact an attorney before beginning this process. Because the process must be completed correctly in order to preserve your claim and because it may vary from state to state, it is important to obtain competent legal counsel before beginning.
Title VII first requires that the charge be filed with a state agency if the violation occurs within a state that has set up an agency for handling discrimination claims. If your state does not have its own human rights commission or similar agency, you should file directly with the EEOC. Practically speaking, this means contacting the state agency or EEOC in your state by telephone and informing them that you wish to file a complaint. They will then instruct you on how and where to fill out the necessary paper work. In states that have an agency for handling these claims, filing with the state agency must be followed by timely filing the charge with the EEOC. Some state agencies will do this for you.
Usually the complaint must be filed within 180 days of the discriminatory act. The time period is measured from the date that the discriminatory act occurred. Upon the filing of the charge there is a 180 day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC or state agency that conciliation was completed, or the date the party receives a right to sue letter. For a more detailed description of this process, see Appendix I.