EMPLOYEE RELIGIOUS EXPRESSION AT WORK PRESENTED BY: MARK GOULET & MELANIE CHARLESTON 2 Let s Organize This Talk.. Context matters: Applicable Laws Limitations on Employee Religious Expression Real Life Scenarios 1
3 Federal Laws First Amendment of the U.S. Constitution Title VII of the Civil Rights Act of 1964 4 United States Constitution First Amendment in the Bill of Rights to the U.S. Constitution reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; 2
5 First Amendment Tension Establishment Clause vs. Free Exercise Clause 6 Title VII Prohibits an employer from discriminating with respect to compensation, terms, conditions, or privileges of employment because of a person s religion. Religion includes all aspects of religious observance, as well as belief, unless an employer demonstrates that it is unable to reasonably accommodate an employee s religious observance or practice without undue hardship. 3
7 Texas State Laws Constitution Freedom of Worship Clause Religious Freedom Restoration Act Commission on Human Rights Act - (Title VII) Texas Education Code 21.406 8 Texas Constitution Article 1 6 (in part) FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion 4
9 Texas Religious Freedom Restoration Act Protects free exercise of religion, defined as an act or refusal to act that is substantially motivated by sincere religious belief. Tex. Civ. Prac. & Rem. Code 110.001(a)(1). Prohibits a government employer from substantially burdening an employee s free exercise of religion, unless the burden is the least restrictive way of furthering a compelling governmental interest. Tex. Civ. Prac. & Rem. Code 110.003. 10 TEC 21.406 A school district may not deny an educator a salary bonus or similar compensation given in whole or in part on the basis of educator attendance because of the educator s absence from school for observance of a holy day observed by a religion whose places of worship are exempt from property taxation under Section 11.20, Tax Code. 5
11 Limitations on Employee Religious Expression 12 PRAYER It makes a big difference whether teachers pray on their own, with other teachers, or with students. Teachers who pray alone or with other adults (voluntarily) have the 1st Amendment right to do so. Not so when students are around. We do have case law on this. 6
13 Doe v. Duncanville ISD 5th Circuit clearly said that teachers/coaches participating in prayer with students at school/school activities is an improper entanglement in religion and signals an unconstitutional endorsement of religion. 14 Jewelry, Posters, Books. The dividing line between the teacher s personal items and classroom displays is not clear. No case law prohibits teachers from wearing religiously oriented jewelry. Displays in the classroom, even if the teacher thinks of them as personal may present a problem. See next slide! 7
15 Teacher Can Go Too Far In Roberts v. Madigan, the 10th Circuit held that the elementary teacher created an overly religious atmosphere in the classroom with a poster, books, and a prominently displayed Bible from which he read (silently) every day. 921 F.2d 1047 (10th Cir. 1990). Thus the principal did not violate the teacher s rights when he ordered these items removed. 16 Here s the Balance One Court Struck School employees may not display crosses, religious images, quotations, Bibles or religious texts, etc. on walls, filing cabinets, halls, lobbies, locker rooms, windows and doors unless for pedagogical, non-religious reasons. Note: no restriction on jewelry, personal items on desk. Source: Settlement of Schultz v. Medina Valley ISD. 8
17 Dress Code Restrictions Must be neutral and generally applicable. Exception for religious purpose required if If exception for secular purpose allowed May be permissible if dress causes undue hardship Dress promoting religion not permitted 18 Attendance Denial of compensation prohibited by TEC 21.406 Under Title VII adverse employment action based on absence to observe religious holy day prohibited absent undue hardship 9
19 Scenarios 20 Scenario 1 Teacher Crosby has bus duty every Monday and Wednesday, starting at 7:10 a.m. On other days, the teacher is expected to report for duty no later than 7:40 a.m. Last year, the local See You at the Flagpole event occurred on a Wednesday at 7:30 a.m. Because he was on bus duty at the time, Teacher Crosby was present, but did not participate in the prayer by praying aloud or by joining hands with the group. This year, the event will take place on a Thursday at 7:30 a.m., before the teacher is technically on duty. Teacher Crosby asks his principal whether he may participate in the prayer circle. 10
21 Scenario 2 Ms. Coral teaches high school chemistry. She is also a Buddhist, and in her classroom on the wall next to her desk, she displays a calendar with images of the Buddha. A student notices the religious symbols and complains to the school principal. 22 Scenario 3 The Christmas season is upon us. Mrs. Noel arrives to teach middle school history wearing a shirt that reads, Jesus is the reason for the season. A fellow teacher complains to the principal. 11
23 Scenario 4 After a recent local tragedy in which two students were killed by a drunk driver, school employees agree to meet before school to pray for the families and the students affected by this loss. 24 Scenario 5 Ms. Harper is a high school science teacher. She includes a Bible verse as a tagline at the end of every email that she sends, including the ones she sends from her district-provided email account. 12
25 2015 Walsh Gallegos Scenario 6 Mr. Washington is a middle school history teacher. During a lesson on our founding fathers a student asks Mr. Washington if he is a Christian. 26 Concluding Words Know your district s relevant policies including how to handle complaints. -DIA (Legal) (Local) Be consistent in application of policy and practices. Ensure district instructional and administrative staff understand employee religious expression rights. 13
27 Mark Goulet Austin Office 505 E. Huntland Dr. Suite 600 Austin, TX 78752 Ph: (512) 454-6864 Fax: (512) 467-9318 Email:mgoulet@wabsa.com Melanie Charleston Houston Office 10375 Richmond Ave. Suite 750 Houston, TX 77042 Ph: (713) 789-6864 Fax: (713) 789-9318 Email:mcharleston@wabsa.com Web: www.walshgallegos.com 28 The information in this handout was created by Walsh Gallegos Treviño Russo & Kyle P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. 14