Recently I spoke at the Public Employers Conference in Denver on this topic, and afterwards, I had a number of questions about the First Amendment requirement that a governmental employer–any employer who is a political subdivision of the state–must follow. It’s complicated, because a public-sector employer may neither establish a religion nor prohibit the free exercise of religion.
Free exercise includes such practices as:
- Praying and meditation;
- Wearing religious clothing or symbols;
- Reading aloud from religious literature;
- Gathering with others to celebrate;
- Not doing any of the above.
When I speak with public-sector members, I notice they understand and feel most comfortable with not establishing a religion. The issue that more often arises is when an employee asks to freely exercise his or her religion in the workplace. I believe this causes discomfort for two reasons: No one wants an employee’s expression of his or her religious belief to appear to be establishing a religion, and other employees are likely to complain about an employee freely exercising his or her religion.
Here are some common issues that I have seen arise in free-exercise cases:
- Employees want to meet to discuss the Bible in a meeting room. Other employees are complaining because they don’t get to use the meeting rooms for their book club.
- An employee wants to wear religious symbols that are prominent and will be seen by employees and citizens.
- An employee adds “Have a Blessed Day” to the bottom of the email near the signature line. This email goes to citizens and other employees.
- Many employees eat lunch together and say grace. One or two do not wish to participate.
- An employee doesn’t want to work in the part of a library or medical center where information on terminating pregnancies is offered to citizens.
When I relate case law examples of public-sector employers losing lawsuits when an employee who had access to the public wanted to wear a cross necklace, or when a professor wanted to read biblical texts at the beginning of each class, I find my audience is often surprised. It appears that the first step to looking at this is making sure supervisors understand that religious behavior is allowed in the workplace.
The next step is to develop some procedures and practices for how to manage situations that arise in the workplace where an employee is freely exercising a religion and another employee doesn’t want to be a part of or even witness it. The main thing to realize is that just because an employee witnesses religious behavior does not mean the employee can legally object to that behavior and insist that it stop.
Finally, there must be a balance when employees have direct contact with citizens. While religious practices are to be tolerated, some may interfere with the work done to meet the public need, or be so closely related to the service the public-sector employer is providing to appear to be establishing a religion.
The examples cited above not only lack clear answers, but the answers could change, depending on the circumstances. Part of any procedure or practice is to ask for legal assistance in reviewing the issue and possible solutions.