Religion in the workplace

If you have a complaint about a private employer, you may wish to read through the U.S. Equal Employment Opportunity Commission’s compliance manual on religious discrimination, or the brief summary provided below, and then contact a private attorney who specializes in employment law, the EEOC, or a civil rights office in your area. Please note that there may be strict time frames within which employment discrimination charges must be filed. You may also file EEOC claims yourself.

While we are very sympathetic to the plight of a nonreligious employee who is subjected to forms of religious indoctrination or observance at the workplace, our staff is not equipped to handle employment law. The Foundation cannot represent you, advise you, or refer you to secular employment law attorneys. You may wish to bring your complaint directly to the human resources or legal department at your place of employment. Otherwise, the American Bar Association provides information on lawyer referral services in every state (click here for the directory).

Finally, FFRF is periodically contacted by reporters seeking to document religious discrimination/harassment in the workplace. If you are willing to speak with reporters, you may wish to briefly summarize your claim and give FFRF your contact information. We will not divulge information to media without first contacting you for permission.

I was fired/not hired because I am an atheist/agnostic/freethinker. Is this legal?
Generally, religious status (including lack of religious affiliation or lack of belief in a god) is a protected class under Title VII of the Civil Rights Act of 1964. This means that when an employer chooses who to hire/fire/promote/demote, the employer may not use religious affiliation as a factor in making that decision. The EEOC does make a limited exception to this general rule for employers at expressly religious places of business, at least when it comes to hiring/firing decisions. The Supreme Court held that this exemption was constitutional in Corp. of Presiding Bishop of Church of LDS v. Amos, 483 U.S. 327 (1987) (upholding exemption for nonprofit activities run by the LDS church). The Ninth Circuit Court of Appeals recently applied this exception in Spencer v. World Vision, — F.3d —, 2010 WL 3293706 (9th Cir. 2010) where it held that a non-profit, faith-based Christian organization fell within the Title VII religious exemption and could therefore fire non-Christian employees. Still, this remains a very narrow exception. See, e.g., EEOC v. Kamehameha Schs., 990 F.2d 458, 461 (9th Cir. 1993) (finding no exception for a religiously affiliated school); EEOC v. Townley, 859 F.2d 610, 619 (9th Cir. 1988) (finding no exemption for a “Christian, faith-operated” commercial company). If the company at issue is not run by a church or other expressly religious, nonprofit organization, chances are that a non-religious person cannot be legally denied a position, fired, demoted or denied a promotion based on religious criteria. If you believe you have experienced such an injustice, contact the EEOC or an attorney specializing in employment law as described in the opening paragraph of this FAQ.

Work meetings usually contain a prayer or are held in conjunction with religious services. What can I do?
The act of requiring an employee to attend a religious service is in clear violation of Title VII of the Civil Rights Act of 1964 and the “Accommodations” section of the EEOC guidelines (described below). The Ninth Circuit Court of Appeals wrote the definitive argument against the practice of mandatory worship services in EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988) (holding that an employer must accommodate atheist employee by allowing him to opt out of worship services), which still stands as the leading case on the issue. 

Most likely, any prayer or religious service that accompanies a mandatory work event or meeting would violate Title VII discrimination laws under the same reasoning used in Townley. Impromptu prayers or services accompanying optional work events do not violate Title VII per se, but if they occur frequently, a non-religious employee (or an employee with conflicting religious beliefs) may seek a change in workplace practices/policy (see the Accommodations section of the EEOC policy below). Although not always feasible, usually the best course of action is to alert the employer to the situation directly and to explain that a work environment where prayer is pervasive and difficult to avoid is problematic for you. 

I was invited to attend church/bible study by my superior. Is this legal?
It is illegal for an employer to coerce an employee into attending religious events or practicing a religion. Thus, context is key in deciding whether an employer has crossed the line in inviting an employee to attend church. The invitation is problematic if done in a way that suggests that there will be job-related benefits or consequences based on the employee’s response. Repeated invitations that are met with rejection are most likely a form of harassment under the EEOC guidelines (outlined briefly below). On the other hand, a one-time invitation made in a casual setting probably does not constitute religious harassment, even though this may still feel like inappropriate workplace behavior to you.

For some illustrative examples of behavior deemed permissible and impermissible, see Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (1992), examples following the statement: “[S]upervisors should be careful to ensure that their statements and actions are such that employees do not perceive any coercion of religious or non-religious behavior (or respond as if such coercion is occurring), and should, where necessary, take appropriate steps to dispel such misperceptions.”

My boss/coworker put up a religious poster/display in the office. Is this a violation?
Context is key in deciding if a religious display creates a hostile work environment or otherwise violates an employee’s right to be free from religious harassment at work. Factors to be considered include: the employer’s policy on displays in general, who will likely see the display, what message the display sends, how difficult it would be to accommodate an offended employee, and whether the employer is a private or government entity. 

If an employer has a general policy on employee displays/posters, that policy must not make an exemption for religious displays (by either only excluding or only allowing such displays). Thus, if an employer prohibits employees from displaying posters generally, the employer cannot allow religious posters to be displayed. If employee displays are allowed in general, offensive displays that constitute religious harassment may still be excluded. However, the EEOC would not consider most religious posters to be offensive. In its compliance manual on religious discrimination, EEOC writes, “workplace displays of religious artifacts or posters that do not demean other religious views generally would not constitute religious harassment.” In contrast, the Ninth Circuit has held that a poster displaying the word “gay” under a picture of an employee as part of a campaign to celebrate diversity did not constitute religious harassment against a devout Christian employee. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 604-05 (9th Cir. 2004) (“the company’s workplace diversity campaign did not attack any group of employees on account of race, religion, or any other important individual characteristic.”). However, the employee’s response, which was to post biblical passages condemning homosexuality on the walls where they could be read by coworkers and customers, was inappropriate and the company could legally require that they be removed. Id. at 601-02, 605. 

Finally, a government employer may be able to exercise greater control over religious displays than a private employer in order to avoid the appearance of the government endorsing a particular religious viewpoint. Compare Berry v. Department of Social Services, 447 F.3d 642, 651-52 (9th Cir. 2006) (holding that employee couldn’t place religious items in his workspace when clients routinely entered that workspace for purposes of consulting with an agent of the state) with Tucker v. Dept. of Educ., 97 F.3d 1204 (9th Cir. 1996) (holding that employee was allowed to place religious items in his workspace when no members of the public had access to that office). As always, the state’s interest in avoiding the appearance of state promotion or endorsement of religion remains a relevant factor when deciding what restrictions on employee speech are appropriate.

My boss/coworker has a bible on his/her desk. Is this appropriate?
Having bibles or other religious texts in a private office are subject to many of the same criteria as religious posters, discussed above. In a government context, if there is a remote chance that a client/customer would see a bible on a desk and if the primary purpose of the bible is not to display a message for others, the presence of such books if likely permissible. The EEOC compliance manual on religious discrimination addresses this issue explicitly. “In her private work area, a Federal worker keeps a Bible or Koran on her private desk and reads it during breaks . . . This conduct, without more, is not religious harassment, and does not create an impermissible hostile environment with respect to employees who do not share those religious views, even if they are upset or offended by the conduct.”

A Brief Summary of the EEOC Compliance Manual on Religious Discrimination

The EEOC Compliance Manual focuses on religious discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects against employment discrimination based on race, color, religion, sex, national origin, or protected activity. Title VII’s protections against religious discrimination apply equally to those who practice a non-theistic religion and to those who profess no religious belief. See, e.g.,Torcaso v. Watkins, 367 U.S. 488, 495 (1961). Title VII itself applies to any employee, applicant, apprentice, or ex-employee of a covered employer, employment agency, or labor organization. Generally, all employers (private, state, and local government employers), employment agencies and labor organizations are covered under Title VII, with some exceptions, such as religious organizations and some employers with fewer than 15 employees. If a nonprofit organization’s purpose is, for instance, to promote Roman Catholicism or atheism, it may hire based on its purposes.

The EEOC manual on religious discrimination is divided into three main sections concerning employment decisions, harassment, and accommodations. Each is briefly summarized for informational purposes only.

Employment Decisions:
Title VII makes it generally illegal for an employer to refuse to interview, hire, or give a promotion to an individual based on that individual’s religion, or to treat an employee differently because of that employee’s religious beliefs, nonbeliefs or practices. This does not restrict an employer from making accommodations for an employee’s religious practices or belief. In fact, reasonable accommodations for religious practices are an EEOC requirement (discussed below). Employees may not be disciplined or discharged based on their religious beliefs or nonbeliefs, nor may they be rewarded based on religious considerations. 

Religious harassment in violation of Title VII has occurred when an employee is “required or coerced to abandon, alter, or adopt a religious practice as a condition of employment,” or when an employee is subjected to hostile or abusive statements or conduct that concern religion. Included within this category are unwelcome impositions of religious views or practices on employees (proselytizing behavior). The EEOC notes: “[t]o establish a case of religious harassment, an employee must show that the harassment was: (1) based on his religion; (2) unwelcome; (3) sufficiently severe or pervasive to alter the conditions of employment by creating an intimidating, hostile, or offensive work environment; and, (4) that there is a basis for employer liability.” 

The “severe or pervasive” requirement is not easily defined, but it is not met when comments are merely insensitive but not severe and when issues arise infrequently and irregularly. Note however that one instance of physically threatening conduct is enough to constitute a violation, as are persistent offensive remarks. 

The requirement that there be a basis for employer liability can be satisfied in a few different ways. If the harassment came from a supervisor, then the employer is automatically liable. If the harassment came from an employee, then the requirement is satisfied if the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action. If the harassment came from a non-employee (e.g. a contractor), then the employer is liable if it should have known about the harassment, could have controlled the non-employee’s actions or could have otherwise protected the employee, and failed to take appropriate action. In other words, keep a written log to record a history of harassment, and report promptly to a supervisor (or employer). 

Once on notice, an employer must reasonably accommodate an employee whose sincerely held religious belief or practice conflicts with a work requirement, unless providing the accommodation would create an undue hardship. An employee is responsible for notifying the employer of the need for an accommodation and for explicitly requesting the accommodation. The employee is obligated to explain the religious nature of the belief or practice if the employer requests that information. 

According to the EEOC, a reasonable accommodation most often constitutes one of the following: “(1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfer and/or change of job assignment; and, (4) modifying workplace practices, policies, and/or procedures.” While an employee may seek an accommodation permitting time for prayer, proselytizing, or a religious display, these requests are more likely to create an undue hardship than other types of accommodation, since they may directly affect the workplace environment.

Researched and Written by Sam Grover, FFRF Summer 2010 Legal Intern
Posted December 2010

Freedom From Religion Foundation