How Should Employers Handle Workplace Proselytizing? - American Society of Employers - Anthony Kaylin

How Should Employers Handle Workplace Proselytizing?

religionThe current U.S. Supreme Court endorses workers’ rights when it comes to expressing religious values at work.  In the last term’s case of Kennedy v. Bremerton School District, No. 21-418 (2022), Kennedy was a football coach who kneeled and prayed on the 50-yard line after a game.  He was suspended by the Bremerton School District in the state of Washington for whom he worked. 

The U.S. Supreme Court overturned the suspension. The court stated that Kennedy's prayers were a form of private religious observance and Bremerton had no authority to censor or discipline him for his observance.  Specifically, the court stated, "The Free Exercise and Free Speech Clauses of the First Amendment protects an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression."

Religious accommodation in the workplace is held to a lesser standard than an ADA accommodation.  There still needs to be an interactive discussion, but the burden is not as great as in ADA cases.  It is called a de minimis standard for defining undue burden.

For example, in 2016, Walmart offered a job to a candidate as one of eight assistant managers for one of its stores. The candidate is a Seventh-Day Adventist, and this was a full-time position. For Walmart, the employee would have to work during their Sabbath, which started at sundown on Friday and ended at sundown on Saturday.  Once told about the schedule, the candidate requested an accommodation. The human resources manager for the store reviewed the request but denied the accommodation because they thought the request would create an undue burden on Walmart.

There were essentially three reasons for the denial. 

  • First, it would require other assistant managers to take on additional Friday night and Saturday shifts, which were among the least popular shifts. 
  • Second, it would stop this particular store’s policy of rotating all eight assistant managers through all potential scheduling patterns. This allowed the assistant managers to gain experience working in all store departments. The store manager implemented this policy to make it easier for assistant managers to cover for each other in cases of vacation, illness, resignation, etc.
  • Finally, an accommodation might be avoided if a ninth assistant manager were hired or if the store was understaffed at times.

Based on this, the U.S. 7th Circuit Court of Appeals found for Walmart. 

Yet, the case was later settled because Walmart thought that the case could be appealed to the U.S. Supreme Court, and they were reading tea leaves as to what the Supreme Court might rule.  In fact, the Kennedy ruling supports the Walmart approach to putting a possible difficult accommodation issue to bed. 

Religious expression at work is a sticky wicket these days given the Kennedy case.

Alyesha Dotson, a shareholder at Littler Mendelson PC states that "[e]Employees are allowed to … be themselves and bring their full selves to the workplace until it disrupts the workplace or otherwise impedes other people's ability to bring their full selves to work," Dotson said. "That's the general gist of this. And there is no one-size-fits-all rule, there is no absolute bright line, which is what makes this a sticky area."

But to what extent do employers allow for religious expression at work? As Joseph C. Chancey, managing partner at Drew Eckl & Farnham LLP states, “One set of behaviors may work perfectly well and work [in] one workplace, create no conflict, where in another workplace somebody is violently opposed [and] thinks they're being exposed to some heretical belief system. Anytime you have to deal with the subjective beliefs of human beings in the workplace, you have the potential for very, very different results. And that really is kind of the ultimate question, 'How will this work in this particular workplace?'"

There are three takeaways for employers in this situation. 

  1. Be accommodating up to a point, but do not allow religious expression to cross over to harassment or other discrimination, for example, against a particular community because the religion says otherwise. 
  2. Take each situation separately and conduct analysis accordingly.  Always document the interactive discussion. 
  3. Recognize uncertainty.  The Supreme Court could at any time raise the stakes of the accommodation process.  Therefore, work with legal counsel to minimize risk. 


Source:  Law360 9/15/22 Forbes 5/24/22

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