Politics, religion and football . . . Are there ANY safe water cooler topics?

Q.     This week, the Pope arrived in the United States[1], presidential candidate Ben Carson made a statement regarding a Muslim president[2], Green Bay’s quarterback, Aaron Rodgers, made a dig at Seattle’s quarterback, Russell Wilson, by commenting that “God is a Packer’s fan”[3], and there is more news with the ACLU regarding the Kentucky clerk[4]. My business’ water cooler has become the middle[5] of religious debate and conflict. I would like all my employees to leave their religion at their church, temple, mosque, etc. Can I forbid my employees from discussing religion at the workplace?

A.     This is a difficult employment situation because both sides have rights – (1) those who wish to share their religious beliefs, and (2) those who are offended by those religious beliefs. In their Compliance Manual (Section 12: Religious Discrimination), the Equal Employment Opportunity Commission (“EEOC”) provides the following guidance for employers faced with religious expression in the workplace.

Permitting Prayer, Proselytizing, and Other Forms of Religious Expression

Some employees may seek to display religious icons or messages at their work stations.  Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs, distributing literature, or using a particular religious phrase when greeting others.  Still others may seek to engage in prayer at their work stations or to use other areas of the workplace for either individual or group prayer or study.  In some of these situations, an employee might request accommodation in advance to permit such religious expression.  In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers.  As noted in §§ II-A-3 and III-C of this document, prayer, proselytizing, and other forms of religious expression do not solely raise the issue of religious accommodation, but may also raise disparate treatment or harassment issues.

To determine whether allowing or continuing to permit an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, employers should consider the potential disruption, if any, that will be posed by permitting this expression of religious belief. As explained [in the manual], relevant considerations may include the effect such expression has had, or can reasonably be expected to have, if permitted to continue, on co-workers, customers, or business operations.

http://www.eeoc.gov/policy/docs/religion.html

While the EEOC’s Compliance Manual is not binding law, the EEOC is the agency charged with enforcing federal laws that pertain to religious discrimination. As such, their guidance and interpretation of legal authority should be heeded. That said, heeding this advice is difficult because it is rather subjective. And, preventing an employee from sharing his or her religious beliefs can result in a claim by the sharing employee. Meanwhile, permitting the employee to share can lead to a claim by an employee offended by the religious comments. As a result, the employer is potentially “damned if they do and damned if they don’t.”[6]

Employers faced with these types of religious accommodation questions should consider reviewing the EEOC link provided above. Then, they should call their employment lawyer, call their legislator and maybe, say a few prayers.

[1] http://www.foxnews.com/politics/2015/09/24/pope-francis-delivers-historic-address-to-congress/?intcmp=hpbt3

[2] http://www.nytimes.com/politics/first-draft/2015/09/22/ben-carson-cant-change-subject-after-contentious-muslim-remark/?_r=0

[3] http://bleacherreport.com/articles/2570096-aaron-rodgers-credits-god-after-packers-defeat-russell-wilson-seahawks

[4] http://www.washingtonpost.com/news/morning-mix/wp/2015/09/22/aclu-kentucky-clerk-kim-davis-is-meddling-with-countys-marriage-licenses/

[5] choose one: middle east, middle Kentucky, middle of the Meet the Press, middle of the Pope’s visit

[6] ironic

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