Walking the workplace proselytizing tightrope

by David L. Johnson

“Have a blessed day.” “I’m praying for you.” “Are you a believer?” “Would you be interested in attending church with me?” Comments and questions like those may be common in your workplace. On the one hand, Title VII of the Civil Rights Act of 1964 bars employers from discriminating against employees because of their religion. On the other hand, employers have a legitimate interest in preventing employees from expressing their religion in a manner that is disruptive to business operations and preventing proselytizing from creating a religiously hostile work environment. That can be a real tightrope walk because it’s often unclear where the line should be drawn.  Tightrope walker businessman

Title VII requires employers to provide reasonable accommodations for employees’ sincerely held religious beliefs. That may present challenges when an employee claims that a need to share her faith or seek to convert others is a fundamental tenet of her religion. Employers need not provide accommodations that would impose an undue hardship. Of course, what amounts to a “reasonable” accommodation and what kind of hardship is considered “undue” is open to interpretation. The Equal Employment Opportunity Commission (EEOC) has interpreted an “undue hardship” to be a hardship that presents “more than a minimal burden on [the] operation of the business.” An accommodation that would impede coworkers’ right to work in an environment free from religious harassment would be considered an undue hardship.

Court cases from across the country provide some guidance on where the line should be drawn. As a general principle, employers have more leeway in preventing employees from expressing religious beliefs to customers rather than coworkers. Plainly, a customer complaining about an employee’s behavior is a serious matter for an employer, and the prospect of losing a customer’s business could very easily cause an undue hardship. Restricting employees’ ability to proselytize coworkers, however, typically presents greater challenges.

In one case, a court found it was wrong for an employer to forbid an employee from telling coworkers to “have a blessed day.” In another case, a Virginia employer fired an employee who wrote a note telling her supervisor that “he needed to get right with God” and wrote a note saying a subordinate needed “to go to God and ask for forgiveness” for having a child out of wedlock. In that case, a federal appeals court found that the employer acted lawfully and that it would have been an undue burden to require the employer to tolerate the employee accusing coworkers of immoral behavior.

The time, place, and manner of an employee’s religious speech are critical. Generally, employers may prohibit speech that threatens the ability of supervisors to impose discipline, disrupts harmony among coworkers, or impairs employees’ performance of their job duties. The more complaints a business receives (whether they are from customers, coworkers, or third parties), the greater the likelihood that it may curb the activity.

It’s often a good idea to have a policy that states the workplace is for working and solicitations are prohibited during work hours. Make sure the policy is neutral and doesn’t single out religion (especially not a certain religion). It’s probably not prudent to prohibit solicitations after work hours off company property. However, if you receive a complaint, it should be addressed, and you should engage in an interactive process with the proselytizing employee. Proceed with great caution when considering a complaint and an employee’s religious beliefs. Can I get an amen?

David L. Johnson is an attorney in Butler Snow’s Nashville office. He can be reached at david.johnson@butlersnow.com.

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