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A Dallas-based national distributor has a corporate mission statement on its Web site that states in part, “To glorify God as we supply our customers worldwide with top-quality, value-priced batteries, related electrical power-source products, and distribution services.” This company, according to its Web site, also has a corporate chaplain as a company resource. Another organization, according to its Web site, “seeks to train and equip workplace leaders to model and serve Jesus Christ where they live and work.” There are a number of other organizations that provide guidance to people as to how to evangelize at work. Prayer groups, sponsored and unsponsored, are showing up increasingly throughout America’s workplaces. Such groups raise a number of legal issues for employers. There is no law that states that employers cannot espouse their religious views in the workplace. However, there are laws that prevent discrimination in the hiring or employment of a person because of his or her religious preference. Where does the promotion of religious views at the workplace start to discriminate against people of different religions? Are Christian or Islamic or Jewish workplaces self-selecting in that only adherents of those tenets would feel comfortable there, so, therefore, only adherents need apply? Is this de facto discrimination? What does an employer say to an employee who wants to start a work-based prayer group or ministry? What does an employer say to an employee who repeatedly brings up these prayer groups during conversations at the office? What happens when a supervisor asks a subordinate if he wants to participate in a workplace prayer group? Isn’t there some implied pressure to join or at least some fear of not fitting in? Isn’t fitting in something that all the experts tell employees to do to put themselves on the fast track? In this day and age of workplace evangelism, employers need to be familiar with these issues and how to address them when they arise. THE LAW Title VII states that an employer may not discriminate in making job-related decisions based on religious beliefs. There is an exception, however, for religious-based organizations such as churches, temples, religious-based charities, etc. The U.S. Equal Employment Opportunity Commission states in its guidelines that an employer is required to reasonably accommodate the religious beliefs of an employee or prospective employee, unless doing so would impose an undue hardship. Simple, right? Well, then, what is a religious belief? What is undue hardship? Usually, a manager has to use his or her best judgment, which often is a code phrase for, “Someone is not going to be happy, no matter what I decide.” EEOC guidelines, codified at 29 C.F.R. �1605, define religious practices to include moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views. The definition of religion is broad and ultimately can only be decided by a court � not anyone’s favorite solution. In Trans World Airlines Inc. v. Hardison, et al. (1977) the U.S. Supreme Court defined “undue hardship” as any costs greater than de minimis (i.e., a nominal cost). Since that decision, employers can (and do) refuse religious accommodation for the flimsiest of reasons. However, the EEOC guidelines state that undue hardship occurs only if accommodating an employee’s religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or conflicts with another law or regulation. Perfectly clear, right? Wrong. Moreover, the words ordinary administrative costs in the EEOC’s definition seem to be much broader than the de minimis cost standard the Supreme Court laid down. In the jurisdiction covered by the U.S. Court of Appeals for the 5th Circuit, which includes Texas, the courts are following the de minimis definition. The Occupational Safety and Health Administration has ruled that machinists exposed to toxic gases must be clean-shaven and wear masks for safety purposes, a regulation that has survived tests by Sikhs. But in a separate ruling, OSHA did exempt turban-wearing Sikhs from hard-hat rules. BIBLICAL VERSES Two suits contrast the issues employers face about religious speech in the workplace. In the first, Peterson v. Hewlett-Packard Co. (2004), a 9th Circuit case, a former Hewlett-Packard employee sued after he was fired because he repeatedly posted biblical verses condemning homosexuality on his cubicle’s overhead bin. That same year, the 9th Circuit found that the issue was not religious discrimination and found that the employee violated the company’s anti-harassment policy. In the second case, Bodett, et al. v. CoxCom Inc. (2004), the 9th Circuit ruled that Cox Communications had the right to fire an evangelical Christian for violating its anti-harassment policy, after she criticized a lesbian subordinate’s sexual orientation during the employee’s performance review. Where does the promotion of religious views at the workplace start to discriminate against people of different religions? There is no hard and fast rule. If employers allow evangelistic groups in the workplace, the employers must take care to ensure that all employees know their rights and responsibilities regarding religion in the workplace. This will provide companies their first line of defense. Are evangelical companies discriminatory in that only adherents of those tenets would feel comfortable there, so, therefore, only adherents need apply? It isn’t de facto discrimination but may be self-selecting if a company isn’t careful. Some companies may want to avoid hiring people who don’t mirror their views. But they can’t. It’s illegal. What should in-house counsel say to an employee who wants to start a work-based prayer group? What should they say to an employee who repeatedly brings up these prayer groups to other employees? That is a business-based decision. But beware: If the company opens the door to one group, courts may require it to open the door to any other groups that want to do the same thing. Again, companies need to make sure that proper education is available to ensure all employees’ rights are protected. Also, the in-house counsel or human resources representative should caution the employee who brings up religious issues or advertises religious activities too often that this can be harassing behavior and can be a divisive issue in the workplace. There aren’t many issues more volatile than religion. TONE AT THE TOP Finally, there is the issue of tone at the top. What happens when a supervisor asks another employee to participate in a workplace prayer group? Isn’t there some implied pressure to join or at least some fear of not fitting in and missing the fast track? Again, this is a tricky issue, particularly thorny because a supervisor is involved. That implicates the company and exerts at least apparent pressure for a subordinate to comply with the supervisor’s requests. Employers should be clear that any religious activities associated with work are entirely voluntary and are on the employee’s own time and should not be on work time. As a second line of defense, a company needs a good open-door policy for complaints and good training for all employees on that policy. That way, the company hopefully can resolve any friction that arises quickly without disrupting the company or producing a lawsuit. Failure to find out about these problems can be much more damaging than the problems themselves. Art Lambert is a partner in Epstein Becker Green Wickliff & Hall in the labor and employment practice in Dallas. His e-mail address is [email protected]. This article originally appeared in Texas Lawyer , an ALM publication.

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