How to Handle an Employee Who Wants to Display Religious Imagery in the Workplace
Author: William Denham, Shortt & Nguyen, PC
Federal, state and local laws forbid discrimination based on religion and prohibit retaliation for engaging in protected activities, such as the expression of an employee's religious beliefs in the workplace. As the workforce becomes increasingly diverse, prudent employers should be sensitive to the religious practices of their employees. Employers should consider taking the following steps in dealing with an employee who wants to display religious imagery in the workplace.
Step 1: Understand What Religious Discrimination and Retaliation Entail
Except for certain religious organizations and clergy positions, Title VII generally prohibits covered employers from engaging in religious discrimination and retaliation. Under Title VII, those employers engage in religious discrimination when they:
- Require or coerce employees or job applicants to abandon or alter their religious beliefs and practices as a condition of employment; or
- Subject employees to a hostile work environment through religious based-statements or conduct that is both unwelcome and pervasive or severe.
This discrimination may take the form of an official policy (e.g., Employees may not display religious imagery or icons (e.g., crosses, crucifixes) in the workplace) or through harassment by employees' supervisors or co-workers, as evidenced by:
- Demeaning jokes, epithets, or name-calling;
- Remarks, cartoons, and pictures with insulting stereotypes; and
- Mimicking or complaining about employees' religious practices.
Likewise, Title VII forbids employers from retaliating against employees or job applicants for engaging in protected activities, including requesting religious accommodation (e.g., ability to adorn a space with an icon) and opposing activities prohibited under Title VII. Courts often interpret retaliation as any type of negative treatment (e.g., a change in job assignments, even if at the same pay scale) which would discourage an employee from engaging in the protected activity. Courts also look at the temporal proximity between the complaint and the retaliatory conduct. As such, employers should be especially cautious in taking any actions that affect the work, pay, or conditions of employment of any reporting employee for at least several weeks (if not months) after the report.
Thus, in general, private sector employees who display non-disruptive religious imagery at work must not be discriminated against, harassed, or retaliated against for this practice. (Public and quasi-public employees' religious expressions may be restricted due to concerns over state endorsement of religion.)
Step 2: Encourage Religious Tolerance
Employers should encourage an atmosphere of religious openness in three ways - through policies, through training, and through prompt and responsive action.
- Policies - Official and unofficial policies should reflect a tolerant and affirming attitude towards different religious beliefs. For instance, employers should strongly consider adopting a zero tolerance policy that includes a prohibition against religious discrimination and harassment.
Example: Discrimination and Harassment Policy as of [date]. [Enter Employer's Name] is an equal opportunity employer, and is committed to creating and maintaining a tolerant and respectful working environment. [Enter Employer Name] strongly encourages all employees to promptly report any form of harassment or discrimination in the workplace based on religion [and all other protected classes such as sex, age, and race] to the HR Department, any manager, or the CEO. This behavior includes, without limitation: (a) using [Enter Employer Name]-owned equipment to create, forward, or transmit materials (such as emails) that are disruptive, abusive, obscene, or degrading, including slurs, jokes, or stereotypes based on sex, race, religion, or other protected class, or any other materials that a reasonable person would find offensive; (b) making remarks to coworkers that are lewd, degrading, humiliating, or offensive, including those based on sex, race, religion, or other protected class. [Enter Employer Name] will not take any retaliatory action against any employee who makes such a report. [Enter Employer Name] will also make reasonable accommodations to employees as provided by law, including religious accommodations.
This policy should make clear that employees have at least two - and preferably more - individuals to report instances of harassment or discrimination to. The employer should consider publishing this policy in all places where employees review the employer's policies, including the employee handbook, the employer's intranet site, and announcement boards.
Likewise, employers should strongly consider adopting and publishing formal and informal policies that detail how management should investigate reports of harassment or discrimination in a prompt, thorough, and fair manner, and designate how management should take prompt and appropriate remedial action, if necessary.
- Training - Employers should conduct regular and consistent training sessions for supervisors that cover, among other things:
- How to recognize religious discrimination or harassment, versus spirited discussion or debate over religious issues;
- How to recognize requests for religious accommodations;
- How to identify alternative accommodations that would reduce actual disruption;
- How to measure the actual disruption requests for religious accommodation would cause, rather than merely speculating about possible problems;
- How, when, and who to forward a report of religious harassment or discrimination to; and
- How to encourage sensitivity and openness to various religious beliefs or non-beliefs in the workplace.
- Prompt Responsive Action - Employers must promptly and appropriately respond to complaints or reports of religious discrimination or harassment. This response should generally follow the procedures in place to address other types of discrimination or harassment, including:
- Conducting a serious, prompt, fair, and thorough investigation;
- Determining what discipline, if any, should be imposed - keeping in mind that the punishment must be appropriate to the level of severity of the offense and be consistent with past practice and punishments received by similarly-situated employees in similar circumstances; and
- Avoiding any conduct that could be considered retaliatory against the reporting employee - at a minimum, carefully and contemporaneously recording the true and accurate business reasons for all disciplinary-related actions against the reporting employee, after allowing the reporting employee to present mitigating or explanatory reasons in defense.
Step 3: Coordinate With Employees on Reasonable Accommodations
In line with their official and unofficial policies, employers must be open to different religious practices of their employees, including displays of religious images, at work. However, employers may not delve into the religious practices of employees to test the sincerity of those employees' religious convictions.
Example: Earl works for Acme Standard, a covered employer under Title VII. Earl tells Sarah, his supervisor, that he is a member of a religious community called the Earls. Sarah knows that Earl drinks heavily, lies to the IRS, and steals from children. But Sarah also thinks that Earl truly believes in the Earl Deity and is a member of the Earls. Sarah generally may not question the depths or premises of Earl's purported religious beliefs to test their validity, logic, or consistency.
Title VII generally requires that bona fide religious beliefs must be reasonably accommodated, unless such an accommodation causes an undue hardship (e.g., a violation of a collective bargaining agreement, or contractual security obligation with a governmental agency). (Under Title VII, undue hardship means merely "more than de minimis" cost or burden - a far lower standard than the same phrase used in the Americans with Disabilities Act (ADA), which defines the term as a "significant difficulty or expense." However, employers should bear in mind that state and local laws may provide broader or stricter employee protections than Title VII.
Example: Acme Standard has a general policy that all cubicles must be clean, professional, and devoid of personal artifacts. Earl tells Sarah that all members of the Earls must post a picture of Hall of Fame running back Earl Campbell at their work station. Earl asks if he can post such an 8.5" x 11" picture at his cubicle. This request places no greater burden on Earl's co-workers, does not affect Earl's ability to complete his work appropriately, and otherwise causes no disruption to Acme Standard's business. Sarah should accommodate Earl's request, despite Acme Standard's policy.
Example: Earl then posts in his cubicle an 8.5" x 11" picture of Earl Campbell - in the nude. Earl's co-workers complain to Sarah that Earl's religious image is offensive and distracting. When asked about the picture by Sarah, Earl explains that on Earls' High Holy Days the picture must contain full frontal nudity. Despite Earl's earnest religious belief, Sarah should creatively confer with Earl on a possible, reasonable, non-disruptive accommodation. Those accommodations - if not causing an undue hardship on Acme Standard - might include: (1) allowing Earl to keep the nude picture inside a folder at his cubicle, to look at privately; (2) offering Earl a flexible schedule not to work on High Holy Days; or (3) offering Earl a different position or shift within Acme Standard, where he would be away from other employees while displaying his religious imagery.
Example: Earl's co-workers complain that he has gone around showing nude pictures of Earl Campbell to everyone in the office. Earl explains that one of the deepest beliefs of his faith requires that he proselytize to as many people as possible by displaying the Earls' religious imagery. Sarah should caution Earl - and train his co-workers - that Acme Standard's policies prohibit employees from using or displaying religious imagery in any offensive, harassing, or unwelcome manner. For instance, once an employee has indicated that they are not interested in joining or hearing more about the Earls, Earl must not proselytize to that co-worker.
Step 4: Nurture an Atmosphere of Trust and Respect
In sum, employers should be consistently open and vigilant in affirming and protecting the religious beliefs of their employees, including the ability to display religious imagery at work. This practice should always emphasize and include an ongoing dialogue between the requesting employee and the employer about available accommodations. In the end, this dialogue often - and ideally should - result in the employer's extending at least one reasonable option to the employee that carries no undue hardship to the employer.