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Christian Rights in the Workplace – ACLJ

ACLJ • American Center for Law & Justice

Christian Rights in the Workplace Printer Friendly Forward to a FriendThe Great Commission requires believers to spread the Gospel to the four corners of the Earth. Increasingly, people are realizing that this means that we are to be witnesses in our places of work. We at The American Center for Law and Justice are being inundated with calls from both employees and employers asking what the rules are for sharing one’s faith at work.
There will always be opposition to the spreading of the Gospel. Some in our society want religious people to keep their convictions to themselves and leave their religion at home. The law, however, does not require that religious employees and employers check their religion at the office door or the factory gate when they come to work.

Federal and State laws protect the religious freedoms of employees and employers. Employers can run their business in conformance with godly principles and employees cannot be forced to act in a manner that conflicts with their religious beliefs. For instance, Christian employers may hold and participate in voluntary chapel services and prayer meetings for employees, and employees can share their faith with co-workers during breaks or free time so long as it is not disruptive.

In short, there is no law requiring the workplace to be a religion-free zone. This booklet is designed to provide both employees and employers with answers to the question: What does the law have to say about religion at work? Do I have to work on Sunday if I think it is a sin? Can my company employ a full-time chaplain for employees? Do I have to pay union dues if the union supports homosexual rights? Can the stated purpose of my company be to glorify God?

The answers to these questions and many others are contained in the pages that follow. These answers are based on general legal principles that may or may not apply to any given situation. Because each actual case is unique, the specific facts of each case have a direct impact on its outcome. So the answers here will give you general guidance, but you need to seek professional legal counsel to address the specifics of your situation.

For the business world to act ethically and responsibly, it must have access to sound religious morality through its people in ownership as well as on the work floor. More people are being made aware of this truth and have decided that, despite pressure from society, they can no longer keep their faith a secret while at work. After all, if we have sincerely committed our lives to God, how can we leave Him out of the place where we earn our living and spend the better part of each day? It is hoped that this booklet will provide business owners and working people with a helpful overview of the law governing religion in the workplace.

Your brother advocating Jesus,

Jay Alan Sekulow

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Chapter One Employee Religious Rights
Q: What is Title VII and how does it protect employees?
A: The religious freedom of most employees is protected by a federal law called “Title VII”.1 In order to be protected by Title VII, an employee must show that:

(1) He holds a sincere religious belief that conflicts with an employment requirement
(2) He has informed the employer about the conflict; and
(3) He was discharged, disciplined or subjected to discriminatory treatment for failing to comply with the conflicting employment requirement.2

1. Sincerely held religious belief.
The sincerity of religious belief is rarely at issue in Title VII cases. Although failure to act on a religious belief consistently may be considered evidence that the belief is not sincerely held,3 the fact that the belief was only recently acquired does not render it an insincere one.4 An employee is not held “to a standard of conduct which would have discounted his beliefs based on the slightest perceived flaw in the consistency of his religious practice.”5
Religion under Title VII is broadly defined as including “all aspects of religious observance and practice, as well as belief….”6 The EEOC defines religious practices as including “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views…. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee….”7 In other words, the EEOC’s test does not require that the employee’s religious beliefs coincide with the tenets of his church: “Title VII protects more than the observance of Sabbath or practices specifically mandated by an employee’s religion….”8 Religion under Title VII has been held to include the Black Muslim faith, the “old Catholic Religion,” a “faith in humanity being,” and atheism.9 However, “religion” has not been so broadly defined as to include membership in the Ku Klux Klan, membership in the United Klans of America, or belief in the spiritual power of a certain cat food.10

2. Employee informed employer of religious belief.
Next the employee must show that the employer was aware of the belief. An employer has sufficient notice of an employee’s religious belief if he has enough information about the employee’s “religious needs to permit the employer to understand the existence of a conflict between employee’s religious practices and the employer’s job requirements.”11 The best way to inform the employer is in writing. A simple letter to the employer stating: “I have a sincerely held religious belief to (or not to) ________. I am requesting that you, my employer, accommodate this sincerely held religious belief by allowing me to (or not requiring me to) ____________.” The employee should sign and date the letter, and keep a copy.
Notification in writing is not absolutely necessary, as long as the employer is aware of the beliefs.12 A written notification however, gives the employer a fair chance to attempt to accommodate your religious convictions by avoiding confusion or disputes over whether they actually had notice.13
This requirement must not be ignored. An employee’s claim will be rejected if the employer does not understand the religious beliefs involved.14

3. Discriminatory treatment of employee.
If an employee can show they have a sincerely held religious belief and that the employer knew about it, Title VII prohibits the employer from discriminating against the employee because of the belief. “Discrimination” includes demotion, layoff, transfer, failure to promote, discharge, harassment, or intimidation, or the threat of these adverse employment actions.15
The employer is also required to reasonably accommodate the employee’s religious beliefs unless such accommodation would result in undue hardship to the employer.16 “Accommodation” means that employer neutrality is not enough.17 In general, an employer is required to accommodate an employee’s adherence to the principles of his religion unless such accommodation will actually interfere with the operations of the employer.

Chapter Two – Employees Of Private, Non-Government Organizations

Table of Contents / Endnotes

Most employees work for private employers, not for the government. These employees are primarily protected only by Title VII. They may also be protected by laws in their State similar to Title VII. State laws protecting the religious freedom of employees may provide more protection than Title VII, but generally they are very similar to the federal law. This booklet does not attempt to describe individual state laws therefore employees should consult an attorney who is licensed in their particular state to determine if state law provides them with added protection.

This chapter explains how employees of private organizations are protected by Title VII. The rules of law stated apply to government employees, but focus on private employees because Title VII is usually their only remedy.

Q Can I share the Gospel with co-workers at work?
A If required by their religious beliefs, an employee’s religiously motivated expressions of faith are protected by Title VII. For instance, in conversations with other employees, you may refer to Biblical passages on slothfulness and “work ethics.”18 Employees can engage in religious speech at work as long as there is no actual imposition on co-workers or disruption of the work routine.19 Generally, no disruption of the work routine will occur if an employee’s witnessing takes place during breaks, or other free time. If other employees are permitted to use electronic mail and screen savers for speech that is not related to work, an employee who has a sincerely held religious belief to communicate their faith with others should also be able to use these modes of communication.

To ensure that their religious speech is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to share the Gospel whenever possible with willing co-workers during breaks or other free time. The employee must then inform the employer of this religious belief (preferably in writing). At that point, the employer must attempt to accommodate this religious belief unless it will cause the employer “undue hardship.”

Q Can I keep my Bible or other religious items
at my desk?
A Yes. As with witnessing to co-workers, an employee can bring his Bible to work and keep it at his desk if he is required to do so by sincerely held religious beliefs. To ensure that this religious belief of having a Bible or other religious items at work is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to bring these items to work. The employee must then inform the employer of this religious belief (preferably in writing). The employer is then required to attempt to accommodate this belief.

Q Is my employer permitted to restrict what I say
when I am not at work?
A Employers generally cannot discriminate against employees because of religious speech expressed outside of the workplace.20 The only possible exception is if speech activity engaged in outside the workplace directly affects the employee’s ability to perform his job properly. For instance, even though not acting in their official capacity, judges have been prohibited from speaking out about issues on which they may have to rule.21

Q Do I have to work on Sundays if my religion
prohibits it?
A Employers must accommodate requests by employees for absence on their Sabbath or other religious holidays. An affirmative duty arises under Title VII for the employer to make a good faith effort to arrange the employee’s schedule to allow the employee to have Sabbaths off. 22 The employer will be in violation of Title VII if they have “made no real effort” or have taken a “don’t care” attitude.23

For instance, courts have held that an employer is required to accommodate a World Wide Church of God employee who observed his Sabbath from sunset on Friday to sunset on Saturday. The reason for this decision is that the employer did not incur additional costs from the accommodation because they employed extra men at all times to cover unscheduled absences. 24

The employer’s affirmative duty to attempt to accommodate the employee’s request for time off is not limited if the employee asks for more than one accommodation. For instance, an employee who belongs to the World Wide Church of God requested time off in view of two sincerely held religious beliefs: (1) attending a religious festival during her normal working shift, and (2) refraining from all work during the religious festival. The employer argued that accommodating one of these religious beliefs satisfied their duty under Title VII. But the Court ruled against the employer, refusing to “condone an employer’s entire lack of effort to accommodate a given conflict merely because the employer offered to accommodate other ones.”25

The same rule applies where an employee’s religious beliefs prevent him from working on Sundays, and prevent him from asking someone else to engage in this prohibited activity for him. Merely allowing the employee to swap shifts with someone does not constitute reasonable accommodation in this instance. In addition to allowing the employee to be off on Sundays, the employer has an affirmative duty to arrange a swap for the employee.26 Employees must be careful to specifically inform their employer of this religious belief not to ask anyone else to work on Sunday either.

In sum, employers must attempt to accommodate an employee’s need for days off due to religious beliefs. At a minimum, the employer’s duty to accommodate includes allowing employees to trade shifts, and may require the employer to arrange for the trade.

Q Can my employer force me to work on jobs that support abortion?
A Title VII requires employers to accommodate employees who refuse to do specific tasks because of a conflict with religious beliefs. For instance, an employer has been required to accommodate a religious worker’s objections to abortion.27 In that case, an Internal Revenue Service employee refused to handle applications for tax exempt status submitted by any organization which supported abortion. The court ruled that accommodating the employee would not result in undue hardship to the employer because the number of applications the employee might refuse to handle would be relatively insignificant as compared to his total workload.

So employees who have a religious objection to abortion can request that their employer not require them to work on projects involving abortion. The employer will be required to grant this request if it can assign these projects to other employees without undue hardship.

Q Can my employer require me to speak in a way that violates my religious convictions?
A An employee cannot be forced to speak in a manner that would violate his religion. For example, when an employee was fired for refusing, based on religious beliefs, to answer the telephone with “Merry Christmas, Lesco,” the court found that the employer should have accommodated the Jehovah’s Witness employee’s religious convictions regarding the observance of Christmas.28 The employer should have provided other ways for the employee to answer the phone or assigned her to a different task during the Christmas season.

Q Do I have to pay union dues if it would violate my religious beliefs?
A Many employees object to the causes that some unions support, such as Planned Parenthood, or other pro-abortion organizations. Several courts have held that those objecting to the payment of union dues on religious grounds should be accommodated by allowing employees to contribute an amount equal to their dues to an acceptable charity.29 Another possible accommodation is discounting the union dues in proportion to the amount of money spent on the objectionable union activity.30

Q Can I go to work dressed in the particular fashion required by my religion?
A Employers must accommodate religious beliefs requiring an employee to dress or groom in a certain manner, unless the rule prohibiting certain religious dressing is justified by a business necessity. The EEOC has ruled that a nurse whose Old Catholic faith required her to wear a scarf was unlawfully discharged for refusing to come to work without the scarf, because requiring the nurse to wear a cap instead of the scarf was “not so necessary to the operation of [the employer's] business as to justify the effect that this policy has upon the religious convictions.”31 Title VII has also been found to protect an employee’s religious belief that she must wear a
Pro-Life button at all times, even at work.32

An employer, however, does not discriminate against an employee by requiring him to shave his long facial hair and refrain from wearing a turban, if both of these religious practices result in safety hazards by preventing a hard hat and respirator from being worn properly.33

Q Are there any types of religious beliefs or behavior not protected by Title VII?
A Generally, all sincerely held religious beliefs are protected by Title VII. When a Title VII religious claim fails, it is often because the employer is able to show the employee was discriminated against for inefficiency, bad work product, or an inability to get along with co-workers rather than because of the asserted religious practice. A frequent example is when an employee’s religious speech is couched in an argumentative, confrontational style that inhibits cooperation with other employees.34 In such cases, the court is likely to determine that the employee was not discriminated against because of his religious beliefs, but because of his offensive conduct in the office.35

Q Do I have to attend training if it violates my
religious convictions?
A An employee cannot be required to attend training that will violate their sincerely held religious beliefs. The EEOC has ruled that an employer violates Title VII if it requires an employee to attend training containing a philosophy that conflicts with the employee’s religious beliefs.36 The EEOC found that the employer failed to show how accommodating the religious convictions of these employees by not requiring them to attend the training would result in an undue hardship.

Q When can my employer refuse to accommodate my religious beliefs because it will cause an undue hardship?
A There are very few times when employers can require employees to violate their religious beliefs, or refuse to allow the employee to practice his religious beliefs at work. Employees can take such actions only if it would cause the employer an undue hardship. In order to successfully assert this defense, courts require that the employer demonstrate attempted accommodation before claiming undue hardship.37

Employers must also be able to show evidence of undue hardship that is more than mere speculation.38 For example, undue hardship requires more than proof that other employees would grumble or be unhappy about a particular accommodation.39

[A]n employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operative routine. In addition, we are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that never has been put into practice. The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.40

An employer is not required however, to accommodate a particular religious belief if it would require more than a de minimis cost. For instance, an employer does not have to accommodate a religious belief to be off on Sundays if it would cause the employer to adjust the seniority policy and pay overtime to a replacement.41 Employers may also consider public safety when establishing undue hardship. For instance, substituting an untrained employee for a highly trained lineman to work on high-voltage power lines could result in undue hardship.42

It should also be emphasized that the Establishment Clause has absolutely no bearing on private employers. At the ACLJ we often hear private employers attempt to justify their discriminatory treatment of religious employees by quoting the phrase “separation of church and state.” Even if this phrase were the law, and it is not, it would not require private employees to have religion-free work environments. Private people or companies are not the government and therefore can never violate the Establishment Clause.43

Q How do I file a claim under Title VII if my religious rights have been violated?
A It is recommended that the employee contact an attorney before beginning this process. Because the process must be completed correctly in order to preserve your claim and because it may vary from state to state, it is important to obtain competent legal counsel before beginning.

Title VII first requires that the charge be filed with a state agency if the violation occurs within a state that has set up an agency for handling discrimination claims. If your state does not have its own human rights commission or similar agency, you should file directly with the EEOC. Practically speaking, this means contacting the state agency or EEOC in your state by telephone and informing them that you wish to file a complaint. They will then instruct you on how and where to fill out the necessary paper work. In states that have an agency for handling these claims, filing with the state agency must be followed by timely filing the charge with the EEOC. Some state agencies will do this for you.

Usually the complaint must be filed within 180 days of the discriminatory act. The time period is measured from the date that the discriminatory act occurred. Upon the filing of the charge there is a 180 day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC or state agency that conciliation was completed, or the date the party receives a right to sue letter. For a more detailed description of this process, see Appendix I

Chapter Three – Government Employees

Government employees are protected by both Title VII and the United States Constitution against religious discrimination. Public employees do not forfeit their First Amendment rights upon entering the public workplace.44 Therefore, the religious freedom of government employees has the additional protection of the Free Exercise and Free Speech Clauses of the First Amendment to the United States Constitution. This chapter explains how government employees are protected by the First Amendment above and beyond the protection they have from Title VII.

Q As a government employee, is all my religious speech at work protected by the First Amendment?
A A public employee receives greater speech protection when speaking “as a citizen upon matters of public concern” than he does when commenting on employment matters of personal or internal interest.45 When evaluating these cases, the Supreme Court has traditionally utilized a test which balances the importance of the employee’s speech on a matter of public concern against the government’s need to run an efficient workplace.46 Religious speech will always be a matter of public concern.

For example, in Tucker v. State of California Dept. of Educ.,47 a federal Court of Appeals found religious speech to be a matter of public concern, and used Pickering to protect the religious liberties of a state education department employee who believed that he was commanded to “give credit to God for the work he perform[ed].” He engaged in religious discussions, and kept religious material around his work area. Tucker prevailed when the court weighed the state’s asserted interests of efficiency, protecting the liberty interests of other employees, and avoiding Establishment Clause issues against the weight of a “broad ban on group speech.” The court rejected the employer’s contention that the religious speech reduced efficiency since other types of non-work related speech were permitted. The court also rejected the argument that the employee’s speech violated the Establishment Clause because there was no way it could have been attributed to the state.

Therefore, religious speech of government employees is protected so long as it does not significantly reduce efficiency in the workplace, and so long as it will not be attributed to the government employer.

Q As a government employee, can I keep religious items in my personal work area?
A The First Amendment also protects the right of public employees to keep items with religious messages on them at their desk. In a case where an employee had a Bible and plaques containing the serenity prayer, the Lord’s Prayer, and one that said, “God be in my life and in my commitment” in his office, the government employer violated the First Amendment when it demanded that these items be removed because they might be considered “offensive to employees.” 48 The fact that other employees may find these items offensive is irrelevant when considered in light of First Amendment freedoms.49

Q As a government employee, can I advertise events at my church on the bulletin board at work?
A If a government employer allows employees to post non-work related material around the office, they cannot prohibit the posting of religious material. “[I]t is not reasonable to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials.”50 Religious speech is given the same expansive protections offered to secular speech inviting “employees to motorcycle rallies, swap meets, x-rated movies, beer busts, or burlesque shows.” Allowing this speech while prohibiting advertising for religious events “is unreasonable not only because it bans a vast amount of material without legitimate justification but also because its sole target is religious speech.”51

Q Doesn’t religious speech by government employees violate the “Separation Between Church and State?”
A The oft cited phrase “separation between church and state” is found nowhere in the Constitution. This phrase has been misused by many in this country to mislead people and trick them into believing that the government can have absolutely nothing to do with religion. The truth is the Constitution only prohibits the establishment of religion through the Establishment Clause of the First Amendment.

The Establishment Clause of the First Amendment does not provide the government with any justification for prohibiting religious expression in the workplace.52 As the United States Supreme Court said in this regard: “The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.”53

We emphasize, too, that fear alone, even fear of discrimination or other illegal activity, is not enough to justify such a mobilization of governmental force against [an employee]…. A phobia of religion, for instance, no matter how real subjectively, will not do. As Justice Brandeis has said,….” Men feared witches and burnt women.”54

In August of 1997, President Clinton took the remarkable step of issuing guidelines confirming that federal workers can express their faith on the job. These guidelines direct federal agencies to “permit personal religious expression by federal employees to the greatest extent possible….”55 The guidelines are instructive for all government employees and employers and are reproduced in full in Appendix Two, beginning on page 31.

In sum, governmental employers may restrict religious activity in the workplace only if it prohibits the government from running an efficient workplace, or there is clear evidence that it is intimidating or harassing to co-workers. Speculative fears of offense or employee discontent do not provide the government with an excuse for discriminating against religious employees who express their faith through words, actions, or symbols.

Chapter Four – Employer Religious Beliefs

Many employers have sincerely held religious beliefs which they want their businesses to reflect. But federal and state laws prohibiting religious discrimination in employment have discouraged many business owners from communicating their religious convictions at work. The good news is that, just like employees, business owners do not have to check their religion at the door when they come to work. The following information provides some guidance for religious employers who want their business to reflect their faith.

Q Do employers unlawfully discriminate if they base business objectives and goals upon Biblical principles?
A No. An employer does not discriminate on the basis of religion by affirming the faith of its owners in business objectives.56 “Title VII does not, and could not, require individual employers to abandon their religion.”57 Employers must be careful, however, not to give prospective or current employees the perception that employment or advancement with the company depends on acquiescence in the religious beliefs of the employer. This can be accomplished in a number of ways. For instance, applications for employment should state that applicants are considered for all positions without regard to religion. This statement should also be included in any orientation materials, employee handbooks, and employee evaluation forms. Of course, employers must also be sure that this statement is accurate but not discriminating on the basis of religion.

Q As the owner of the business, can I witness to my employees?
A An employer can talk about his religious beliefs with employees as long as employees know that continued employment or advancement within the company is not conditioned upon acquiescence in the employer’s religious beliefs. For instance, one court has held that an employer did not discriminate against an employee by sharing the gospel with him and inviting him to church.58 Employers must be careful, however, not to persist in witnessing if the employee objects. Such unwanted proselytizing could be deemed religious harassment. Employers cannot impose their religious beliefs on their employees.59

Q Am I permitted to give my employees religious literature?
A As with spoken religious speech, employers can share their religious beliefs with their employees in print form such as pamphlets, books, and newsletters.60 Employers must be careful, however, not to give employees the impression that they have to agree with the employer’s religious beliefs in order to keep their job or get a promotion. For instance, in one case a Jewish employee was wrongfully terminated for complaining about the printing of Bible verses on his paychecks and the religious content of a company newsletter.61 If an employer shares religious convictions with employees, and the employee disagrees or protests, no adverse action can be taken against the employee.
Furthermore, employers should be ready to accommodate any employee’s objections to the religious speech contained in publications distributed to employees. Sufficient accommodation may be to provide the objecting employee with a publication that does not contain the religious content. In order to counter any impression given by publications that job security and advancement are contingent upon faith, it is also recommended that publications with religious material state that the employer does not discriminate on the basis of religion for purposes of continued employment, employee benefits, or promotion.

Q Can an employer hold regular prayer meetings or chaplain services for employees?
A Employers can hold regular devotional meetings for employees so long as attendance is not required.62 Moreover, active participation of management in these meetings does not make them discriminatory.63 To ensure that employees understand that devotional meetings are voluntary, notice of the meetings should state that they are not mandatory and it is wise to hold these meetings before the work day begins, during breaks, or after work.

Q Can I require my employees to attend training based on Biblical principles?
A Employers can use training programs that are based on the Bible. For instance, requiring an employee to attend a management seminar put on by the Institute of Basic Life Principles which used scriptural passages to support the lessons it sought to promote did not violate a Massachusetts civil rights law.64 Employees cannot, however, be required to undergo religious training, participate in religious services, or engage in behavior that would violate their sincerely held religious beliefs. See Part I to this Booklet.

Appendix One – Title VII Overview

A. Threshold Requirements For Title VII Coverage
Title VII applies to most large private employers as well as to governmental employers. With regard to employers, Title VII states:
(a) Employer practices. It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex or national origin.

42 U.S.C. § 2000e-2. Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person….” 42 U.S.C. § 2000e(b). Title VII therefore covers an employer who has fifteen or more employees on his payroll for at least twenty weeks during a given year. Once coverage is established in a given year, Title VII coverage will extend through the following year, even if the number of employees falls below the minimum.
As to what is an “employee,” the statute is not limited to traditional definitions of employees. “Employee” includes all who “are susceptible to the kind of unlawful practices that Title VII was intended to remedy.”65 Thus, Title VII may apply even if the employee is an independent contractor.

The statute also applies to state and local governments through 42 U.S.C. § 2000e(a), and to the federal government via 42 U.S.C. § 2000e-16. In fact, Title VII is the exclusive judicial remedy offering injunctive relief for discrimination in federal employment.66 Title VII does not apply to religious organizations. 42 U.S.C. § 2000e-1. 42 U.S.C. § 2000e-2(b) – (d) brings employment agencies, labor organizations, and training programs under the umbrella of Title VII.

B. Title VII Procedures: Private Defendants
1. Deferral to State Agencies
The majority of jurisdictions have “deferral agencies,” typically denoted as a “state equal employment opportunity agency” or “human rights commission.” These are state or local agencies authorized to seek or grant relief from the discriminatory practice or to institute criminal proceedings. 42 U.S.C. § 2000e-5(c). Charges must be filed with both the state or local agency as well as with the EEOC. The EEOC is required by statute to allow a deferral agency not less than 60 days after the charge is filed to dispose of the charge. 42 U.S.C. § 2000e-5(d). The majority of states require a charge to be filed with their deferral agency within 180 days following the act of discrimination.
In deferral jurisdictions EEOC has no jurisdiction unless a timely charge is first filed with the deferral agency. Although EEOC may initially accept a charge and file with the state agency on its own initiative, this should not be replied upon. The aggrieved party should file a timely charge directly with the deferral agency to ensure meeting this prerequisite to filing suit. A local agency may waive its 60-day deferral period through a work-sharing agreement with the EEOC, thus “terminating” the agency’s proceedings so that the EEOC may deem a charge filed and begin processing it.

2. Filing with the EEOC
In states without a deferral agency, charges of specific discriminatory acts must be filed with the EEOC within 180 days after the discriminatory act occurred.67 This and other time periods specified by Title VII may be tolled when equity demands modification.68 Where there is a state deferral agency, the time period for filing with the EEOC is extended to 300 days, or within 30 days after receiving notice that the state has terminated the proceedings under state or local law, whichever is earlier.69 The EEOC may, if it receives the charge first, file the state charge on its own initiative and then automatically re-file the charge with itself after the 60-day deferral period expires.70 The surest course of action, however, is to directly file the EEOC charge once the state deferral period expires or the state terminates its investigation, whichever comes first.71

Once the charge is timely filed, EEOC has 180 days of exclusive jurisdiction over the charge. Because the state deferral period is mandatory, the combined effect is that a plaintiff must first await the results of state efforts for 60 days, then ensure that an EEOC charge is filed, and then await the results of EEOC conciliation efforts for 180 days. There is no statute of limitation on the EEOC’s investigation and conciliation efforts.

3. Civil Actions by the EEOC or by the Aggrieved Party
The EEOC may bring a civil action if it fails to secure a conciliation agreement within 30 days of either the charge being filed with EEOC or the 60 day state deferral period expiring.72 If the EEOC dismisses a charge filed with it, or if the EEOC fails to file a civil action within 180 days of exclusive jurisdiction, then the EEOC must so notify the person aggrieved.73 Alternatively, when EEOC conciliation efforts extend past the 180 days of exclusive EEOC jurisdiction, the aggrieved person need not await the outcome of conciliation but may instead request a “notice-of-right-to-sue.” In either circumstance, the aggrieved person may then bring a civil action on his own behalf within 90 days of receipt of such notice.74 Should the aggrieved person allow the EEOC to continue its conciliation efforts past the exclusive jurisdiction period, he may file suit if the final EEOC resolution is adverse to him, even if the conciliation takes years to complete.

In the case where the aggrieved person is a state or local government employee and the Commission fails to secure a conciliation agreement, it must refer the case to the Attorney General. The person aggrieved has a right to intervene in a civil action brought by the Commission or the Attorney General.75 The charging party may bring suit on his behalf subject to the same limitations above. After suit is filed, the EEOC is precluded from filing an independent action.

In summary, Title VII first requires that the charge be filed with the deferral agency if within a deferral jurisdiction, or directly with the EEOC if not. In deferral jurisdictions, filing with the deferral agency must be followed by timely filing the charge with the EEOC. The time periods are measured from the date that the discriminatory act occurred. Upon filing of the charge there is a 180 day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC because either conciliation was completed or the pary requested a right to sue letter.

C. Title VII Procedures: Federal Defendants
Title VII requires federal defendants to use significantly different procedures. Within the federal government the employing agency is the primary administrator for Title VII. Claims are filed with Equal Employment Opportunity Counselors within the offending agency, not with the EEOC. Before a formal claim is filed, the aggrieved person must file a “pre-complaint” notice with a counselor within 45 days of the discriminatory act.76 The counselor must attempt to resolve the dispute within 30 days.77 At the end of the dispute resolution period, a final interview is conducted with the aggrieved party. If the matter has not been resolved, written notice is given to the aggrieved party. Formal charges may then be filed with “appropriate agency officials” within 15 days of receipt of that notice.78 The agency then has 180 days from filing to resolve the complaint; at the end of this period, the complainant may either request a hearing before an administrative law judge or accept a final agency disposition without further hearings.79

The aggrieved party need not wait for the administrative procedures to run their full course. A civil action in federal district court may be commenced when 180 days have elapsed since the filing of the formal complaint.80 If the agency has made a determination on the formal charge, the aggrieved party may file suit within 90 days of receipt of the “decision letter.”81

Alternatively, the agency’s final decision or dismissal of the complaint may be appealed to the EEOC within 30 days of receiving the decision letter.82 As of 1997, there is no set time period limiting the length of appellate review by the EEOC.83 Once EEOC issues a final decision on the appeal, the aggrieved party has 90 days from receipt of the final decision to file a civil action.84

Appendix Two – Guidelines On Religious Exercise And Religious Expression In The Federal Workplace

The following Guidelines, addressing religious exercise and religious expression, shall apply to all civilian executive branch agencies, officials, and employees in the Federal workplace.

These Guidelines principally address employees’ religious exercise and religious expression when the employees are acting in their personal capacity within the Federal workplace and the public does not have regular exposure to the workplace. The Guidelines do not comprehensively address whether and when the government and its employees may engage in religious speech directed at the public. They also do not address religious exercise and religious expression by uniformed military personnel, or the conduct of business by chaplains employed by the Federal Government. Nor do the Guidelines define the rights and responsibilities of non-governmental employers – including religious employers – and their employees. Although these Guidelines, including the examples cited in them, should answer the most frequently encountered questions in the Federal workplace, actual cases sometimes will be complicated by additional facts and circumstances that may require a different result from the one the Guidelines indicate.

Section 1. Guidelines for Religious Exercise and Religious Expression in the Federal Workplace.
Executive departments and agencies (“agencies”) shall permit personal religious expression by Federal employees to the greatest extent possible, consistent with requirements of law and interests in workplace efficiency as described in this set of Guidelines. Agencies shall not discriminate against employees on the basis of religion, require religious participation or non-participation as a condition of employment, or permit religious harassment. And agencies shall accommodate employees’, exercise of their religion in the circumstances specified in these Guidelines. These requirements are but applications of the general principle that agencies shall treat all employees with the same respect and consideration, regardless of their religion (or lack thereof).

A. Religious Expression. As a matter of law, agencies shall not restrict personal religious expression by employees in the Federal workplace except where the employee’s interest in the expression is outweighed by the government’s interest in the efficient provision of public services or where the expression intrudes upon the legitimate rights of other employees or creates the appearance, to a reasonable observer, of an official endorsement of religion. The examples cited in these Guidelines as permissible forms of religious expression will rarely, if ever, fall within these exceptions.
As a general rule, agencies may not regulate employees’ personal religious expression on the basis of its content or viewpoint. In other words, agencies generally may not suppress employees’ private religious speech in the workplace while leaving unregulated other private employee speech that has a comparable effect on the efficiency of the workplace – including ideological speech on politics and other topics – because to do so would be to engage in presumptively unlawful content or viewpoint discrimination. Agencies, however, may, in their discretion, reasonably regulate the time, place and manner of all employee speech, provided such regulations do not discriminate on the basis of content or viewpoint.

The Federal Government generally has the authority to regulate an employee’s private speech, including religious speech, where the employee’s interest in that speech is outweighed by the government’s interest in promoting the efficiency of the public services it performs. Agencies should exercise this authority evenhandedly and with restraint, and with regard for the fact that Americans are used to expressions of disagreement on controversial subjects, including religious ones. Agencies are not required, however, to permit employees to use work time to pursue religious or ideological agendas. Federal employees are paid to perform official work, not to engage in personal religious or ideological campaigns during work hours.

(1) Expression in Private Work Areas. Employees should be permitted to engage in private religious expression in personal work areas not regularly open to the public to the same extent that they may engage in nonreligious private expression, subject to reasonable content- and viewpoint-neutral standards and restrictions: such religious expression must be permitted so long as it does not interfere with the agency’s carrying out of its official responsibilities.

Examples
(a) An employee may keep a Bible or Koran on her private desk and read it during breaks.
(b) An agency may restrict all posters, or posters of a certain size, in private work areas, or require that such posters be displayed facing the employee, and not on common walls; but the employer typically cannot single out religious or anti-religious posters for harsher or preferential treatment.

(2) Expression Among Fellow Employees. Employees should be permitted to engage in religious expression with fellow employees, to the same extent that they may engage in comparable nonreligious private expression, subject to reasonable and content-neutral standards and restrictions: such expression should not be restricted so long as it does not interfere with workplace efficiency. Though agencies are entitled to regulate such employee speech based on reasonable predictions of disruption, they should not restrict speech based on merely hypothetical concerns, having little basis in fact, that the speech will have a deleterious effect on workplace efficiency.

Examples
(a) In informal settings, such as cafeterias and hallways, employees are entitled to discuss their religious views with one another, subject only to the same rules of order as apply to other employee expression. If an agency permits unrestricted nonreligious expression of a controversial nature, it must likewise permit equally controversial religious expression.
(b) Employees are entitled to display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages. So long as they do not convey any governmental endorsement of religion, religious messages may not typically be singled out for suppression.
(c) Employees generally may wear religious medallions over their clothes or so that they are otherwise visible. Typically, this alone will not affect workplace efficiency, and therefore is protected.

(3) Expression Directed at Fellow Employees. Employees are permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views, to the same extent as those employees may engage in comparable speech not involving religion. Some religions encourage adherents to spread the faith at every opportunity, a duty that can encompass the adherent’s workplace. As a general matter, proselytizing is as entitled to constitutional protection as any other form of speech – as long as a reasonable observer would not interpret the expression as government endorsement of religion. Employees may urge a colleague to participate or not to participate in religious activities to the same extent that, consistent with concerns of workplace efficiency, they may urge their colleagues to engage in or refrain from other personal endeavors. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome. (Such expression by supervisors is subject to special consideration as discussed in Section B(2) of these guidelines.)

Examples
(a) During a coffee break, one employee engages another in a polite discussion of why his faith should be embraced. The other employee disagrees with the first employee’s religious exhortations, but does not ask that the conversation stop. Under these circumstances, agencies should not restrict or interfere with such speech.
(b) One employee invites another employee to attend worship services at her church, though she knows that the invitee is a devout adherent of another faith. The invitee is shocked, and asks that the invitation not be repeated. The original invitation is protected, but the employee should honor the request that no further invitations be issued.
(c) In a parking lot, a non-supervisory employee hands another employee a religious tract urging that she convert to another religion lest she be condemned to eternal damnation. The proselytizing employee says nothing further and does not inquire of his colleague whether she followed the pamphlet’s urging. This speech typically should not be restricted.
Though personal religious expression such as that described in these examples, standing alone, is protected in the same way, and to the same extent, as other constitutionally valued speech in the Federal workplace, such expression should not be permitted if it is part of a larger pattern of verbal attacks on fellow employees (or a specific employee) not sharing the faith of the speaker. Such speech, by virtue of its excessive or harassing nature, may constitute religious harassment or create a hostile work environment, as described in Part B(3) of these Guidelines, and an agency should not tolerate it.

(4) Expression in Areas Accessible to the Public. Where the public has access to the Federal workplace, all Federal employers must be sensitive to the Establishment Clause’s requirement that expression not create the reasonable impression that the government is sponsoring, endorsing, or inhibiting religion generally, or favoring or disfavoring a particular religion. This is particularly important in agencies with adjudicatory functions.

However, even in workplaces open to the public, not all private employee religious expression is forbidden. For example, Federal employees may wear personal religious jewelry absent special circumstances (such as safety concerns) that might require a ban on all similar nonreligious jewelry. Employees may also display religious art and literature in their personal work areas to the same extent that they may display other art and literature, so long as the viewing public would reasonably understand the religious expression to be that of the employee acting in her personal capacity, and not that of the government itself. Similarly, in their private time employees may discuss religion with willing coworkers in public spaces to the same extent as they may discuss other subjects, so long as the public would reasonably understand the religious expression to be that of the employees acting in their personal capacities.

B. Religious Discrimination. Federal agencies may not discriminate against employees on the basis of their religion, religious beliefs, or views concerning religion.

(1) Discrimination in Terms and Conditions. No agency within the executive branch may promote, refuse to promote, hire, refuse to hire, or otherwise favor or disfavor, an employee or potential employee because of his or her religion, religious beliefs, or views concerning religion.
Examples
(a) A Federal agency may not refuse to hire Buddhists, or impose more onerous requirements on applicants for employment who are Buddhists.
(b) An agency may not impose, explicitly or implicitly, stricter promotion requirements for Christians, or impose stricter discipline on Jews than on other employees, based on their religion. Nor may Federal agencies give advantages to Christians in promotions, or impose lesser discipline on Jews than on other employees, based on their religion.
(c) A supervisor may not impose more onerous work requirements on an employee who is an atheist because that employee does not share the supervisor’s religious beliefs.

(2) Coercion of Employee’s Participation or Nonparticipation in Religious Activities. A person holding supervisory authority over an employee may not, explicitly or implicitly, insist that the employee participate in religious activities as a condition of continued employment, promotion, salary increases, preferred job assignments, or any other incidents of employment. Nor may a supervisor insist that an employee refrain from participating in religious activities outside the workplace except pursuant to otherwise legal, neutral restrictions that apply to employees’ off-duty conduct and expression in general (e.g., restrictions on political activities prohibited by the Hatch Act).
This prohibition leaves supervisors free to engage in some kinds of speech about religion. Where a supervisor’s religious expression is not coercive and is understood as his or her personal view, that expression is protected in the Federal workplace in the same way and to the same extent as other constitutionally valued speech. For example, if surrounding circumstances indicate that the expression is merely the personal view of the supervisor and that employees are free to reject or ignore the supervisor’s point of view or invitation without any harm to their careers or professional lives, such expression is so protected.

Because supervisors have the power to hire, fire, or promote, employees may reasonably perceive their supervisors’ religious expression as coercive, even if it was not intended as such. Therefore, supervisors 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.

Examples
(a) A supervisor may invite co-workers to a son’s confirmation in a church, a daughter’s bat mitzvah in a synagogue, or to his own wedding at a temple. But, a supervisor should not say to an employee: “I didn’t see you in church this week. I expect to see you there this Sunday.”
(b) On a bulletin board on which personal notices unrelated to work regularly are permitted, a supervisor may post a flyer announcing an Easter musical service at her church, with a handwritten notice inviting co-workers to attend. But, a supervisor should not circulate a memo announcing that he will be leading a lunch-hour Talmud class that employees should attend in order to participate in a discussion of career advancement that will convene at the conclusion of the class.
(c) During a wide-ranging discussion in the cafeteria about various non-work related matters, a supervisor states to an employee her belief that religion is important in one’s life. Without more, this is not coercive, and the statement is protected in the Federal workplace in the same way, and to the same extent, as other constitutionally valued speech.
(d) A supervisor who is an atheist has made it known that he thinks that anyone who attends church regularly should not be trusted with the public weal. Over a period of years, the supervisor regularly awards merit increases to employees who do not attend church routinely, but not to employees of equal merit who do attend church. This course of conduct would reasonably be perceived as coercive and should be prohibited.
(e) At a lunch-table discussion about abortion, during which a wide range of views are vigorously expressed, a supervisor shares with those he supervises his belief that God demands full respect for unborn life, and that he believes it is appropriate for all persons to pray for the unborn. Another supervisor expresses the view that abortion should be kept legal because God teaches that women must have control over their own bodies. Without more, neither of these comments coerces employees’ religious conformity or conduct. Therefore, unless the supervisors take further steps to coerce agreement with their view or act in ways that could reasonably be perceived as coercive, their expressions are protected in the Federal workplace in the same way and to the same extent as other constitutionally valued speech.

(3) Hostile Work Environment and Harassment. The law against workplace discrimination protects Federal employees from being subjected to a hostile environment, or religious harassment, in the form of religiously discriminatory intimidation, or pervasive or severe religious ridicule or insult, whether by supervisors or fellow workers. Whether particular conduct gives rise to a hostile environment, or constitutes impermissible religious harassment, will usually depend upon its frequency or repetitiveness, as well as its severity. The use of derogatory language in an assaultive manner can constitute statutory religious harassment if it is severe or invoked repeatedly. A single incident, if sufficiently abusive, might also constitute statutory harassment. However, although employees should always be guided by general principles of civility and workplace efficiency, a hostile environment is not created by the bare expression of speech with which some employees might disagree. In a country where freedom of speech and religion are guaranteed, citizens should expect to be exposed to ideas with which they disagree.

The examples below are intended to provide guidance on when conduct or words constitute religious harassment that should not be tolerated in the Federal workplace. In a particular case, the question of employer liability would require consideration of additional factors, including the extent to which the agency was aware of the harassment and the actions the agency took to address it.

Examples
(a) An employee repeatedly makes derogatory remarks to other employees with whom she is assigned to work about their faith or lack of faith. This typically will constitute religious harassment. An agency should not tolerate such conduct.
(b) A group of employees subjects a fellow employee to a barrage of comments about his sex life, knowing that the targeted employee would be discomforted and offended by such comments because of his religious beliefs. This typically will constitute harassment, and an agency should not tolerate it.
(c) A group of employees that share a common faith decides that they want to work exclusively with people who share their views. They engage in a pattern of verbal attacks on other employees who do not share their views, calling them heathens, sinners, and the like. This conduct should not be tolerated.
(d) Two employees have an angry exchange of words. In the heat of the moment, one makes a derogatory comment about the other’s religion. When tempers cool, no more is said. Unless the words are sufficiently severe or pervasive to alter the conditions of the insulted employee’s employment or create an abusive working environment, this is not statutory religious harassment.
(e) Employees wear religious jewelry and medallions over their clothes or so that they are otherwise visible. Others wear buttons with a generalized religious or anti-religious message. Typically, these expressions are personal and do not alone constitute religious harassment.
(f) In her private work area, a Federal worker keeps a Bible or Koran on her private desk and reads it during breaks. Another employee displays a picture of Jesus and the text of the Lord’s Prayer in her private work area. 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.
(g) During lunch, certain employees gather on their own time for prayer and Bible study in an empty conference room that employees are generally free to use on a first-come, first-served basis. Such a gathering does not constitute religious harassment even if other employees with different views on how to pray might feel excluded or ask that the group be disbanded.

C. Accommodation of Religious Exercise. Federal law requires an agency to accommodate employees’ exercise of their religion unless such accommodation would impose an undue hardship on the conduct of the agency’s operations. Though an agency need not make an accommodation that will result in more than a de minimis cost to the agency, that cost or hardship nevertheless must be real rather than speculative or hypothetical: the accommodation should be made unless it would cause an actual cost to the agency or to other employees or an actual disruption of work, or unless it is otherwise barred by law.

In addition, religious accommodation cannot be disfavored vis-a-vis other, nonreligious accommodations. Therefore, a religious accommodation cannot be denied if the agency regularly permits similar accommodations for nonreligious purposes.

Examples
(a) An agency must adjust work schedules to accommodate an employee’s religious observance – for example, Sabbath or religious holiday observance -if an adequate substitute is available, or if the employee’s absence would not otherwise impose an undue burden on the agency.
(b) An employee must be permitted to wear religious garb, such as a crucifix, a yarmulke, or a head scarf or hijab, if wearing such attire during the work day is part of the employee’s religious practice or expression, so long as the wearing of such garb does not unduly interfere with the functioning of the workplace.
(c) An employee should be excused from a particular assignment if performance of that assignment would contravene the employee’s religious beliefs and the agency would not suffer undue hardship in reassigning the employee to another detail. (d) During lunch, certain employees gather on their own time for prayer and Bible study in an empty conference room that employees are generally free to use on a first-come, first-served basis. Such a gathering may not be subject to discriminatory restrictions because of its religious content.

In those cases where an agency’s work rule imposes a substantial burden on a particular employee’s exercise of religion, the agency must go further: an agency should grant the employee an exemption from that rule, unless the agency has a compelling interest in denying the exemption and there is no less restrictive means of furthering that interest.

Examples
(a) A corrections officer whose religion compels him or her to wear long hair should be granted an exemption from an otherwise generally applicable hair-length policy unless denial of an exemption is the least restrictive means of preserving safety, security, discipline or other compelling interests.
(b) An applicant for employment in a governmental agency who is a Jehovah’s Witness should not be compelled, contrary to her religious beliefs, to take a loyalty oath whose form is religiously objectionable.

D. Establishment of Religion. Supervisors and employees must not engage in activities or expression that a reasonable observer would interpret as Government endorsement or denigration of religion or a particular religion. Activities of employees need not be officially sanctioned in order to violate this principle; if, in all the circumstances, the activities would leave a reasonable observer with the impression that Government was endorsing, sponsoring, or inhibiting religion generally or favoring or disfavoring a particular religion, they are not permissible. Diverse factors, such as the context of the expression or whether official channels of communication are used, are relevant to what a reasonable observer would conclude.

Examples
(a) At the conclusion of each weekly staff meeting and before anyone leaves the room, an employee leads a prayer in which nearly all employees participate. All employees are required to attend the weekly meeting. The supervisor neither explicitly recognizes the prayer as an official function nor explicitly states that no one need participate in the prayer. This course of conduct is not permitted unless under all the circumstances a reasonable observer would conclude that the prayer was not officially endorsed.
(b) At Christmas time, a supervisor places a wreath over the entrance to the office’s main reception area. This course of conduct is permitted.

Section 2. Guiding Legal Principles.
In applying the guidance set forth in section 1 of this order, executive branch departments and agencies should consider the following legal principles.

A. Religious Expression. It is well-established that the Free Speech Clause of the First Amendment protects Government employees in the workplace. This right encompasses a right to speak about religious subjects. The Free Speech Clause also prohibits the Government from singling out religious expression for disfavored treatment: “[P]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression,” Capitol Sq. Review Bd. v. Pinette, 115 S.Ct. 2448 (1995). Accordingly, in the Government workplace, employee religious expression cannot be regulated because of its religious character, and such religious speech typically cannot be singled out for harsher treatment than other comparable expression.

Many religions strongly encourage their adherents to spread the faith by persuasion and example at every opportunity, a duty that can extend to the adherents’ workplace. As a general matter, proselytizing is entitled to the same constitutional protection as any other form of speech. Therefore, in the governmental workplace, proselytizing should not be singled out because of its content for harsher treatment than nonreligious expression.

However, it is also well-established that the Government in its role as employer has broader discretion to regulate its employees’ speech in the workplace than it does to regulate speech among the public at large. Employees’ expression on matters of public concern can be regulated if the employees’ interest in the speech is outweighed by the interest of the Government, as an employer, in promoting the efficiency of the public services it performs through its employees. Governmental employers also possess substantial discretion to impose content-neutral and viewpoint-neutral time, place, and manner rules regulating private employee expression in the workplace (though they may not structure or administer such rules to discriminate against particular viewpoints). Furthermore, employee speech can be regulated or discouraged if it impairs discipline by superiors, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise, or demonstrates that the employee holds views that could lead his employer or the public reasonably to question whether he can perform his duties adequately.

Consistent with its fully protected character, employee religious speech should be treated, within the Federal workplace, like other expression on issues of public concern: in a particular case, an employer can discipline an employee for engaging in speech if the value of the speech is outweighed by the employer’s interest in promoting the efficiency of the public services it performs through its employee. Typically, however, the religious speech cited as permissible in the various examples included in these Guidelines will not unduly impede these interests and should not be regulated. And rules regulating employee speech, like other rules regulating speech, must be carefully drawn to avoid any unnecessary limiting or chilling of protected speech.

B. Discrimination in Terms and Conditions. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers, both private and public, to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s… religion.” 42 U.S.C. 2000e-2(a)(1). The Federal Government also is bound by the equal protection component of the Due Process Clause of the Fifth Amendment, which bars intentional discrimination on the basis of religion. Moreover, the prohibition on religious discrimination in employment applies with particular force to the Federal Government, for Article VI, clause 3 of the Constitution bars the Government from enforcing any religious test as a requirement for qualification to any Office. In addition, if a Government law, regulation or practice facially discriminates against employees’ private exercise of religion or is intended to infringe upon or restrict private religious exercise, then that law, regulation, or practice implicates the Free Exercise Clause of the First Amendment. Last, under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1, Federal governmental action that substantially burdens a private party’s exercise of religion can be enforced only if it is justified by a compelling interest and is narrowly tailored to advance that interest.

C. Coercion of Employees’ Participation or Nonparticipation in Religious Activities. The ban on religious discrimination is broader than simply guaranteeing nondiscriminatory treatment in formal employment decisions such as hiring and promotion. It applies to all terms and conditions of employment. It follows that the Federal Government may not require or coerce its employees to engage in religious activities or to refrain from engaging in religious activity. For example, a supervisor may not demand attendance at (or a refusal to attend) religious services as a condition of continued employment or promotion, or as a criterion affecting assignment of job duties. Quid pro quo discrimination of this sort is illegal. Indeed, wholly apart from the legal prohibitions against coercion, supervisors may not insist upon employees’ conformity to religious behavior in their private lives any more than they can insist on conformity to any other private conduct unrelated to employees’ ability to carry out their duties.

D. Hostile Work Environment and Harassment. Employers violate Title VII’s ban on discrimination by creating or tolerating a “hostile environment” in which an employee is subject to discriminatory intimidation, ridicule, or insult sufficiently severe or pervasive to alter the conditions of the victim’s employment. This statutory standard can be triggered (at the very least) when an employee, because of her or his religion or lack thereof, is exposed to intimidation, ridicule, and insult. The hostile conduct – which may take the form of speech – need not come from supervisors or from the employer. Fellow employees can create a hostile environment through their own words and actions.

The existence of some offensive workplace conduct does not necessarily constitute harassment under Title VII. Occasional and isolated utterances of an epithet that engenders offensive feelings in an employee typically would not affect conditions of employment, and therefore would not in and of itself constitute harassment. A hostile environment, for Title VII purposes, is not created by the bare expression of speech with which one disagrees. For religious harassment to be illegal under Title VII, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Whether conduct can be the predicate for a finding of religious harassment under Title VII depends on the totality of the circumstances, such as the nature of the verbal or physical conduct at issue and the context in which the alleged incidents occurred. As the Supreme Court has said in an analogous context:

Whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

The use of derogatory language directed at an employee can rise to the level of religious harassment if it is severe or invoked repeatedly. In particular, repeated religious slurs and negative religious stereotypes, or continued disparagement of an employee’s religion or ritual practices, or lack thereof, can constitute harassment. It is not necessary that the harassment be explicitly religious in character or that the slurs reference religion: it is sufficient that the harassment is directed at an employee because of the employee’s religion or lack thereof. That is to say, Title VII can be violated by employer tolerance of repeated slurs, insults and/or abuse not explicitly religious in nature if that conduct would not have occurred but for the targeted employee’s religious belief or lack of religious belief. Finally, although proselytization directed at fellow employees is generally permissible (subject to the special considerations relating to supervisor expression discussed elsewhere in these Guidelines), such activity must stop if the listener asks that it stops or otherwise demonstrates that it is unwelcome.

E. Accommodation of Religious Exercise. Title VII requires employers “to reasonably accommodate… an employee’s or prospective employee’s religious observance or practice” unless such accommodation would impose an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. 2000e(j). For example, by statute, if an employee’s religious beliefs require her to be absent from work, the Federal Government must grant that employee compensation time for overtime work, to be applied against the time lost, unless to do so would harm the ability of the agency to carry out its mission efficiently. 5 U.S.C. 5550a.

Though an employer need not incur more than de minimis costs in providing an accommodation, the employer hardship nevertheless must be real rather than speculative or hypothetical. Religious accommodation cannot be disfavored relative to other, nonreligious, accommodations. If an employer regularly permits accommodation for nonreligious purposes, it cannot deny comparable religious accommodation: “Such an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71 (1986).
In the Federal Government workplace, if neutral workplace rules – that is, rules that do not single out religious or religiously motivated conduct for disparate treatment – impose a substantial burden on a particular employee’s exercise of religion, the Religious Freedom Restoration Act requires the employer to grant the employee an exemption from that neutral rule, unless the employer has a compelling interest in denying an exemption and there is no less restrictive means of furthering that interest. 42 U.S.C. 2000bb-1.

F. Establishment of Religion. The Establishment Clause of the First Amendment prohibits the Government – including its employees – from acting in a manner that would lead a reasonable observer to conclude that the Government is sponsoring, endorsing or inhibiting religion generally or favoring or disfavoring a particular religion. For example, where the public has access to the Federal workplace, employee religious expression should be prohibited where the public reasonably would perceive that the employee is acting in an official, rather than a private, capacity, or under circumstances that would lead a reasonable observer to conclude that the Government is endorsing or disparaging religion. The Establishment Clause also forbids Federal employees from using Government funds or resources (other than those facilities generally available to government employees) for private religious uses.

Section 3. General.
These Guidelines shall govern the internal management of the civilian executive branch. They are not intended to create any new right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. Questions regarding interpretations of these Guidelines should be brought to the Office of the General Counsel or Legal Counsel in each department and agency.

© West 1997 No claim to original U.S. government works.

Christian Rights in the Workplace – End Notes

1 Title VII is codified at 42 U.S.C §§ 2000e et seq. It applies to virtually all employers with fifteen or more employees. For a more detailed explanation of Title VII, see Appendix I.
2 Smith v. Pyro Mining, 827 F.2d 1081, 1085 (6th Cir. 1987), cert. den., 485 U.S. 989 (1988); Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
3 Hansard v. Johns-Manville Products, 5 EPD 8543 (E.D. Tex. 1973). Compare Mississippi Employment Sec. Comm’n v. McGlothin, 556 So. 2d 324 (Miss. 1990), cert. den., 111 S. Ct. 211 (1990) (employee’s belief was sincerely held even though she was not an active member of her religious group and wore her head wrap only occasionally).
4 Cooper v. General Dynamics, 378 F. Supp. 1258 (N.D. Tex. 1974), rev’d on other grounds, 533 F.2d 163 (5th Cir. 1976), cert. den., 433 U.S. 908 (1977).
5 E.E.O.C. v. University of Detroit, 701 F. Supp. 1326, 1331 (E.D. Mich. 1988), rev’d. on other grounds, 904 F.2d 331 (6th Cir. 1990).
6 42 U.S.C. 2000e(j). The courts and the EEOC have interpreted this provision very liberally. Donald T. Kramer, Validity, Construction, and Application of Provisions of Title VII of the Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.) and Implementing Regulations, Making Religious Discrimination in Employment Unlawful, 22 A.L.R. Fed. 580, 602 (1975).
7 Guidelines On Discrimination Because Of Religion, 29 C.F.R § 1605.1.
8 Heller, 8 F.3d at 1438-39 (summarizing authorities); see also Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978); 22 A.L.R. Fed. at 601-03.
9 EEOC Dec. No. 71-2620 (1970); CCH EEOC Dec. 6823; EEOC Dec. No. 71-779 (1970); CCH EEOC Dec. 6180; EEOC Dec. No. 72-1301 (1972); CCH EEOC Dec. 6338; Young v. Southwestern Sav. & Loan Assoc., 509 F.2d 140 (5th Cir. 1975).
10 EEOC Dec. No. 79-06 (1978), CCH EEOC Dec. 6737; Bellamy v. Mason’s Stores, 368 F. Supp. 1025 (E.D. Va. 1973), aff’d., 508 F.2d 504 (4th Cir. 1974); Brown v. Pena, 441 F. Supp. 1382 (S.D. Fla. 1977), aff’d, 589 F.2d 1113 (5th Cir. 1982).
11 Heller, 8 F.3d at 1439.
12 Brown v. Polk County, 61 F.3d 650, 654-55(8th Cir. 1995), cert. den., 116 S. Ct. 1042 (1996).
13 See Chalmers v. Tulon Co., 101 F.3d 1012 (4th Cir. 1996).
14 Chrysler Corp. v. Mann, 561 F.2d 1282, 1285-86 (8th Cir. 1977), cert. den., 434 U.S. 1039 (1978).
15 Gregory S. Sarno, Harassment or Termination of Employee Due to Religious Beliefs or Practices, 35 P.O.F.2d 209, 222 (1983) (hereinafter “Harassment”); EEOC v. Townley Eng’g and Mfg., 859 F.2d 610, 614 n.5 (4th Cir. 1988), cert den., 489 U.S. 1077 (1989).
16 Trans World Airlines v. Hardison, 432 U.S. 63, 73-74 (1977); EEOC v. READS, Inc., 759 F. Supp. 1150, 1155 (E.D. Pa. 1991); 29 C.F.R. § 1605.2(c).
17 Riley v. Bendix Corp., 464 F.2d 1113, 1115 (5th Cir. 1972); Reid v. Memphis Publishing Co., 468 F.2d 346, 350-51 (6th Cir. 1972) (the fact that a particular policy is applied uniformly to all employees does not lessen the discriminatory effect upon a particular employee’s religious beliefs).
18 Brown, 61 F.3d at 652.
19 Id. at 657 (quoting Burns v. Southern Pacific Transit Co., 589 F.2d 403, 407 (9th Cir. 1978), cert. den., 439 U.S. 1072 (1979)). See also EEOC Dec. 6674 (1976), where an Orthodox Muslim was unlawfully fired for being “overzealous in his practices of his beliefs in his conversation with officers and inmates.” The employer fired him because he “cannot be persuaded to tone down his religious practices on the job and continually gets wrapped up in conversations with the inmates.” Because there was no evidence that the employee’s conduct had made him unable to perform his duties or hampered the efficient operation of the workplace, the employee prevailed in his claim.
20 CCH EEOC Dec. 6338.
21 In re: Broadbelt, 146 N.J. 501, 683 A.2d 543 (1996), cert. den., 117 S. Ct. 1251 (1997); See also Hollon v. Pierce, 64 Cal. Rptr. 808 (Cal. Ct. App. 1967) (California human rights law was not violated by dismissal of school transportation supervisor who had, wholly apart from his employment, produced and distributed a religious tract that led school district to question supervisor’s mental stability).
22 Lake v. B.F. Goodrich Co., 837 F.2d 449 (11th Cir. 1988), cert. den., 488 U.S. 826 (1988).
23 Id. at 451. See also E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) (employer violated Title VII when it made no effort to accommodate two employees’ requests to be off on their Sabbaths).
24 Brown v. General Motors, 601 F.2d 956, 959 (8th Cir. 1979). See also Protos v. Volkswagen of America, 797 F.2d 129 (3rd Cir. 1986) cert. den., 479 U.S. 972.
25 E.E.O.C. v. Universal Mfg., 914 F.2d 71 (5th Cir. 1990).
26 Pyro Mining, 827 F.2d 1081- 1086.
27 Haring v. Blumenthal, 471 F. Supp. 1172 (D.D.C. 1979), cert. den., 452 U.S. 939 (1981) reh’g den. 453 U.S. 927 (1981).
28 Kentucky Comm’n on Human Rights v. Lesco Mfg. & Design Co., 736 S.W.2d 361 (Ky. Ct. App. 1987).
29 See McDaniel v. Essex International, Inc., 571 F.2d 338 (6th Cir. 1978), on remand, 509 F. Supp. 1055 (W.D. Mich. 1981), aff’d, 696 F.2d 34 (6th Cir. 1982); Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981), cert. den., 454 U.S. 1098 (1981).
30 University. of Detroit, 701 F. Supp. at 1341, rev’d. on other grounds, 904 F.2d 331 (6th Cir. 1990).
31 EEOC Dec. 6180 (1970). See also EEOC Dec. 6283 (1971) (where an employer could not fire employee for wearing traditional Islam garb because there was no evidence that requiring employees to wear traditional office attire was necessary to the safe and efficient operation of the business).
32 Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995). However, the court in this case found that the employee’s religious belief that she must wear a Pro-Life button depicting a fetus was reasonably accommodated when the employer offered to let the employee wear the button as long as it was covered, or let the employee wear a button with a similar message, but without the picture of the fetus.
33 EEOC Dec. 6817 (1982). See also Bhatia v. Chevron USA, Inc., 734 F.2d 1382 (9th Cir. 1984).
34 See, e.g., Minnesota Dept. of Highways v. Minnesota Dept. of Human Rights, 11 EPD 10863 (1976).
35 Smith v. Universal Services, 360 F. Supp. 441 (E.D. La. 1972) (Where the court dismissed the complaint of a Pentecostal Church member who claimed he was fired because while he worked he sang religious hymns, preached, and prophesied of disasters and the death of co-workers on the job. The court found that his inability to get along with other employees and poor work were the reasons plaintiff was fired, and not his religious speech). See also Gillard v. Sears Roebuck & Co., 32 FEP 1274 (E.D. Pa. 1983).
36 EEOC Decision No. 91-1 (1991).
37 See, e.g., Redmond, 574 F.2d at 901-2; Shaffeld v. Northrop Worldwide Aircraft Serv. Inc., 373 F. Supp. 937, 944 (M.D. Ala. 1974).
38 Pyro Mining, 827 F.2d at 1086; Haring, 471 F. Supp. at 1182 (“‘undue hardship’ must mean present undue hardship, as distinguished from anticipated or multiplied hardship” (emphasis in original)).
39 Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978); Burns, 589 F.2d 403 at 406; Cummins v. Parker Seal Co., 516 F.2d 544, 548 (6th Cir. 1975), aff’d, 429 U.S. 65 (1976), vacated and remanded for reh’g, 403 U.S. 903 (1977).
40 Pyro Mining, 827 F.2d at 1085-86 (quoting Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975)).
41 Trans World Airlines, 432 U.S. at 84; Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d at 1027.
42 Dixon v. Omaha Public Power District, 385 F. Supp. 1382 (D. Neb. 1974). See also United States v. City of Albuquerque, 423 F. Supp. 591 (D.N.M. 1975), aff’d, 545 F.2d 110 (10th Cir. 1976), cert. den., 433 U.S. 909 (1977) (where accommodating fireman’s Sabbath would have required other firefighters to work 38 hour shifts).
43 Westside Community Schools v. Mergens, 496 U.S. 226, 250 (1990).
44 Perry v. Sindermann, 408 U.S. 593 (1972); Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
45 Connick v. Myers, 461 U.S. 138, 147 (1983).
46 Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
47 97 F.3d 1204 (9th Cir. 1996).
48 Brown, 61 F.3d at 659.
49 Id.
50 Tucker, 97 F.3d at 1215.
510 Id.
52 Brown, 61 F.3d at 659.
53 McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring).
54 Brown, 61 F.3d at 659. (quoting Whitney v. California, 274 U.S. 376 (1927)( Brandeis, J. concurring)).
55 Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, August 22, 1997, available in, WESTLAW, 1997 WL 13652877.
56 Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995), cert. den., 116 S. Ct. 1042 (1996).
57 E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610, 621 (9th Cir. 1988).
58 Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351, 362-63 (Or. 1995) (evangelical Christian employer did not violate state law prohibiting employers from “making religious advances” by witnessing to his employee and inviting him to church).
59 Chalmers, 101 F.3d at 1021.
60 Taylor v. National Group of Co’s., 729 F. Supp. 575 (N.D. Ohio 1989) (employer’s gift of a book endorsing secular humanism to new employees on their first day of work did not rise to the level of religious discrimination against a Christian employee).
61 Brown Transport Corp. v. Human Relations Com’n., 578 A.2d 555 (Pa. Commw. Ct. 1990).
62 Young v. Southwestern Sav. & Loan Assoc., 509 F.2d 140 (5th Cir. 1975).
63 Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995), cert. den., 116 S. Ct. 1042 (1996).
64 Kolodziej v. Smith, 588 N.E.2d 634 (Mass. 1992).
65 Armbruster v. Quinn, 711 F.2d 1332, 1342 (6th Cir. 1983).
66 Brown v. GSA, 425 U.S. 820, 835 (1976); Church of Scientology v. Director, FBI, 459 F. Supp. 748, 759 (D.C. DC 1978).
67 42 U.S.C. § 2000e-5(e)(1).
68 Title VII time limits “are not jurisdictional.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). The limits are analogous to statutes of limitation and are subject to equitable modification. Id.; see also Rice v. New England College, 676 F.2d 9, 10 (1st Cir. 1982). Equitable modifications were permitted where “a claimant has received inadequate notice; or where a motion for appointment of counsel is pending…; or where the court has led the plaintiff to believe that she had done everything required of her [or] affirmative misconduct on the part of a defendant….” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (citations omitted). In contrast, modification was not permitted where a pro se claimant argued the right-to-sue letter was ambiguous, Soto v. U.S. Postal Serv., 905 F.2d 537 (1st Cir. 1990); the claimant misunderstood the right-to-sue letter and named the wrong defendant, Rys v. U.S. Postal Serv., 886 F.2d 443 (1st Cir. 1989); or where the claimant filed claims well after the 180 day period despite sufficient knowledge of procedures and fora for administrative relief. Hamilton v. West, 30 F.3d 992, 993-94 (8th Cir. 1994).
69 Id.
70 42 U.S.C. § 2000e-(5)(d).
71 See Breen v. Norwest Bank Minnesota, N.A., 865 F. Supp. 574, 578 (D.Minn. 1994) (complaint untimely when deferral agency did not cross-file complaint and plaintiff’s counsel failed to monitor filings).
72 42 U.S.C. § 2000e-5(f)(1).
73 Id.
74 Id.
75 Id.
76 29 C.F.R. § 1614.105(a)(1) (1996).
77 § 1614.105(a)(2)(d). This period is extended to 90 days if the agency has a “dispute resolution procedure” in place, § 1614.105(a)(2)(f), or for up to 60 days if the aggrieved person so requests in writing. § 1614.105(a)(2)(e).
78 Id.
79 § 1614.108(f).
80 § 1614.408(b).
81 § 1614.408(a).
82 § 1614.402(a).
83 § 1614.406.
84 § 1614.408(d).

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