HOW TO RUN A BUSINESS WITHOUT HIDING YOUR FAITH

While the United States Constitution assures citizens the freedom of religious practice, observance, and belief under the “Free Exercise Clause,” there still remains confusion about the broad range of rights this clause encompasses. Further confusion looms as the frequently misunderstood phrase “Separation of Church and State” seemingly pervades not only government, but popular culture as well. The purpose of this booklet is to attempt to clear the haze, discussing both the employee and employer’s religious rights as defined by Title VII, the primary federal law involving employment rights. Also to be discussed are the Title VII laws regarding religious discrimination, including the means to avoid religious discrimination against employees not sharing the employer’s beliefs.  This booklet also outlines the methods available to prevent such discrimination in workplace scenarios.  Finally, the booklet discusses the legality of religious activities, such as distributing Biblical materials, conducting Bible studies, and sharing personal faith-held beliefs based on Title VII.  

I.  TITLE VII PROHIBITS RELIGIOUS DISCRIMINATION

Title VII of the Civil Rights Act of 1964 is the federal statute most often applied to religious issues in the workplace and is used as the basis for litigation and discrimination claims. The portion applicable to religious discrimination in employment states as follows:

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, sex, or national origin[1].

A. Who is Covered by Title VII?

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). The California Government Code, however, is slightly more restrictive, and defines the employer as a person “regularly employing five, or more” § 12926(d).  Businesses in California must abide by the more restrictive state law, and employers in other states should check to ensure that their state law is identical to the federal version  The “employee” includes all who “are susceptible to the kind of unlawful practices that Title VII was intended to remedy.”[2] 

The “employee” or “employer” may include “one or more individuals, partnerships, associations, corporations, legal representatives, mutual companies, joint stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.” 42 U.S.C. § § 2000e-2000e-17.

B. Religion Defined

Title VII defines religion to include “all aspects of religious observance and practice, as well as belief.” This statutory definition of religion may be limited only when an “employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).

As the agency charged with enforcing the law and issuing regulations, the Equal Employment Opportunity Commission (EEOC) broadly 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…”[3] This interpretation has been strengthened though two groundbreaking cases-- United States v. Seeger, 380 U.S. 163 (1965), and Welsh v. United States, 398 U.S. 333 (1970). These cases developed the standard that despite “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 or the prospective employee.” Simply stated, even if an individual has his own belief system that is not in agreement with the tenets of his church, the individual would still meet the EEOC test.

EEOC decision No. 76-104, 12 FEP Cases (BNA) 1359 has significantly shaped determination of the concept of “religious” beliefs. In this case, an employee with a sincerely held belief that he should not work on Saturday was entitled to protection from religious discrimination, even though he was not a member of a strict Sabbatarian sect.  This decision thereby defined religious belief as individualistic, apart from a governing church or religious body, as long as the belief was sincere.

It is important to note that atheists are also covered under the terms of Title VII.  In Cowan v. Strafford R-VI School District , 140 F.3d 1153 (8^th Cir. 1998) the court determined that a former teacher was unlawfully discriminated against due to perceived New Age views.  The decision provided a basis for definition of religious beliefs as personal morals or beliefs, not determined by a God-figure.  In addition, this case also provided religious discrimination protection for atheists and agnostics alike.

While the definition of religion under Title VII is quite broad, there is a limit. The EEOC has not so broadly defined “religion” as to include membership in the Ku Klux Klan[4]. In the case of Bellamy v. Mason’s Stores, the courts refused to protect a member of the United Klans from “religious discrimination” under Title VII[5].

Based on this court case, the current interpretation of religion defines faith as practices, beliefs, observances, morals or personally held beliefs.  It does not, however, allow political or non-religious views to masquerade as religious, thus entitling proponents to employment protection.

C. Exemptions under Title VII

There are two types of exemptions under Title VII. The first exemption is for religious institutions.  This exemption allows any church, school, college, university, or other educational institution to hire and employ individuals of a particular religion if the institution is operated, owned, supported, and controlled by a religious corporation, or if the curriculum is intended to disperse the ideas of a particular religion. 42 U.S.C. § 2000e-2(e) (2).  This exemption does not apply, however, to for-profit corporations whose business pertains to religious functions or activities or whose management happens to be Christian and operates the business according to religious guidelines or goals such as Bible bookstores or Christian daycare centers.

The second exemption under Title VII allows employers to discriminate where sex, race, or religion is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise (BFOQ),” 42 U.S.C. § 2000-(e)(I).  Courts have narrowly interpreted this statute, and it remains difficult to prove that sex, race, or religion is an integral part of any job description.  Thus, if a Bible bookstore, for example, wants to hire only Christians, this would generally not be permitted under Title VII since it is a for-profit company whose business is related to Christian matters but not solely designated for ministerial purposes.  In order for the Bible bookstore to pursue their preference to exclusively hire Christian employees, they may be able to pursue a BFOQ exemption that states being a Christian is mandatory part of the job.

An example of a BFOQ exemption based on religious faith is illustrated in the court case Kern v. Dynalectron, 577 F. Supp. 1196 (N.D. Tex. 198), aff’d, 746 F. 2d 810 (5^th Cir.). In this case the employer, a helicopter charter company, hired only those who were of the Muslim faith or who agreed to convert to the Muslim faith on the basis that non-Muslims flying into Mecca would be beheaded if caught.  The employer’s right to religious discrimination was upheld as a BFOQ.

While exemptions are allowed, the employer must demonstrate a “compelling need” to continue the discriminatory practice.  In Vigars v. Valley Christian Center of Dublin , Cal. , 805 F. Supp. 802, 808 (N.D. Cal. 1992), the courts refused to grant exemption to a Christian school that fired a librarian for becoming pregnant out of wedlock.

Typically, a Title VI exemption is provided for churches or ministries, not religious- oriented companies like Christian bookstores.  For-profit, religious-related corporations that adhere to Christian principles yet are not solely for the purpose of propagating the faith will also not qualify for BFOQ exemptions unless they can prove that religion is a vital part of the job.  However, this is one of the statutes frequently quoted to uphold religious discrimination for religiously affiliated companies.

II.                TYPES OF RELIGIOUS DISCRIMINATION

A.  Prima Facie Case

To fulfill the basic requirements for a case of religious discrimination, an employee must prove that:

(1)         He has a bona fide belief that compliance with an employment requirement is contrary to his religious faith;

(2)         He has informed his employer about the conflict; and

(3)         He was discharged because of his refusal to comply with the   employment requirement.[6]

In order for an employee to seek protection from religious discrimination under Title VII, the employee must first have a sincerely held religious belief that is negatively impacted or burdened by a particular employment practice.  Then the employee has the obligation to notify the employer of that belief and of the negative impact on that belief.  Upon notification of the employee’s sincerely held religious belief, the employer has the duty to provide reasonable accommodation to that belief unless doing so would result in an undue hardship to the employer.

B.  Religious Harassment

The same legal analysis used in sexual harassment cases is applied to religious harassment cases.  These cases occur as the result of blatant and intentional acts or from an environment that intimidated the employee.  In one such case, a Jewish employee endured religious slurs and the assignment of menial and demeaning tasks not assigned to other employees[7].

In Weiss v. United States, 595 F. Supp. 1050 (E.O. Va. 1984), the supervisor harassed Weiss through continuous verbal abuse, offensive religious slurs, demeaning criticism of Weiss’ job performance in the presence of co-workers, and poor performance appraisals.  The supervisor also requested that Weiss be investigated for allegations which were later determined to be without merit. 

The Weiss case is analogous to “quid pro quo” sexual harassment which occurs when a supervisor knowingly harasses a subordinate and then the supervisor’s actions result in a job-related detriment to the employee.  This detriment could consist of discipline, demotion, lower pay raises, or discharge.  In this type of situation, an employer may be held liable, even if the employer was not aware of the harassment, on the basis that the supervisor was given authority to act as an agent of the employer.[8] For this reason, it is imperative that employers train their supervisors to be aware that they are not permitted to display religious prejudice and the employer will not tolerate religious harassment of any kind.

Additionally, if the employer responds properly to the situation once he has knowledge of the harassment, liability may be avoided.[9]  However, if the employer takes no action after receiving a complaint made by the employee regarding the supervisor, the employer will be held liable.[10]  Further, if an employer fails to take action after an employee complains about a supervisor’s harassment, the company itself may be held liable.  One such instance where the courts ruled in favor of the employee is Smallzman v. Sea Breeze, Inc., 60 FEP Cases (BNA) 1031 (D. Md. 1993).  In this case, the courts determined that Smallzman, the Jewish former employee of Sea Breeze who endured anti-Semitic harassment, suffered emotional distress as a result of both the rancorous comments and the company’s failure to intercede.

If a company, however, takes appropriate action after an alleged incident of religious harassment, the company may be free from liability.  In Vaughn v. Ag Processing, 459 N.W.2d 627, 57 FEP cases (BNA) 1227 ( Iowa 1990), a Roman Catholic employee was assailed with abusive words.  Upon hearing of this occurrence, the company promptly reprimanded the supervisor, indicating expectation of improvement.  The supervisor acquiesced and demonstrated compliance, yet the employee refused to work with the supervisor.  The court found the company had acted reasonably, and the employee was unreasonable in refusing to return to work despite the measures the company had taken to reconcile the matter.

Religious harassment cases also come about when there is a “hostile environment.” This “hostile environment” usually occurs where the elements in the workplace intimidate the employee to the extent that it affects the employee’s ability to perform the job.  Supervisors, co-workers, and clients or vendors can create a hostile environment situation.

In establishing a “hostile environment” religious harassment claim the employee must prove:

(1)        He belongs to a protected class;

(2)        He was subject to unwelcome religious harassment;

(3)        The harassment was based on religion;

(4)        The harassment affected a term, condition, or privilege of employment; and

(5)        The employer knew or should have known of the harassment and failed to take prompt remedial action.[11]

In determining whether an environment is “hostile,” the Supreme Court established some additional factors to consider, including: 1) the frequency and severity of the conduct, 2) whether the conduct physically threatens or humiliates the employee or consists of merely offensive words, and 3) “[W]hether it unreasonably interferes with an employee’s work performance.”[12]  In addition, the Court held that “mere utterance of an epithet which engenders offensive feeling in an employee does not sufficiently affect the conditions of employment to implicate Title VII.”[13]

An example of when a work environment will be considered hostile can be found in the case of Lambert v. Condor Mfg., 768 F. Supp. 600 (E.D. Mich. 1991).  In this case, an employee displayed a nude photo in his area of work, offending a coworker who felt that subjection to pornography was against his “sincerely held religious belief.”  When the objecting employee was discharged for his refusal to work in that environment, the court held that such environments potentially qualify as hostile to a disparate group.

III.     TITLE VII GENERAL EMPLOYER COMPLIANCE

A. Employer Requirements

To comply with Title VII, an employer must meet two requirements.

1.      No Discrimination on the Basis of Religion

First an employer must not discriminate against job applications or employees on the basis of their religion. In the Supreme Court case of McDonnell-Douglas v. Green, the Court set out a four-point test for proving Title VII discrimination in hiring:

(1)        The employee must have a sincerely held religious belief;

(2)               The employee must have applied and been qualified for a job for which the employer was seeking application;

(3)               The employee must have been rejected despite being qualified; and

(4)               After rejection the position must have remained open.[14]

2.      Reasonable Accommodation

Secondly, an employer must reasonably accommodate an employee’s religious beliefs and practices unless the employer proves that such accommodation would result in undue hardship for the employer.[15] In most religious accommodation situations, an employee is seeking accommodation because their religious practice conflicts with their work schedule. When an employee requests an absence for their Sabbath, or other religious holiday, the employer must make a good faith effort to arrange the employee’s work schedule to accommodate the employee’s religion. In the federal Religious Discrimination Guidelines, the EEOC has included along with its accommodation standards, a list of alternatives that employers should consider a reasonable accommodation for religious employees:

(1)        Employers should facilitate the availability of a voluntary substitute with substantially similar qualifications.

Some methods of doing this which employers and labor organizations should consider are: to publicize policies regarding accommodation and voluntary substitution; to promote an atmosphere in which such substitutions are favorably regarded; to provide a central file, bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed.

(2)        Employers should be flexible with work schedules, including flexible arrival and departure times, flexible work breaks and use of lunchtime in exchange for early departure; and

(3)        Employers should consider the possibility of changing the job assignment or a lateral transfer when accommodation is not possible as to the entire job or assignment within the job.[16]

The Guidelines specifically state that “when there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.”[17]  

In one particular case, Heller v. Ebb Auto Co., 8 F.3d 1433 (9^th Cir. 1993), an employee was refused time off to attend his wife and son’s conversion ceremony, and when he took leave none-the-less, he was unlawfully terminated. Cases like these provide the essence of the accommodation code, indicating that allowances must be made for an employee’s religious beliefs, practices, or observances.

Not only must an employer make reasonable accommodations for religious observance, he must also foresee the effect a blindly laid, universal policy may have and consider the disproportionate influence the policy may have on a certain religious group[18]. To sustain the policy under those circumstances, the employer must show the policy is essential to the operation of the business[19].

In another example, EEOC Decision No. 71-463 (1970) gave support to employees who were required to take their vacation during a yearly plant shutdown, preventing the employees from attending a mandatory church convention. In this case, the employer’s even-handed policy had a “disparate impact” on the religious group and consequently serves as a standard of “the business necessity” defense.

However, it is important to note that an employee’s request for accommodation must be based on legitimate religious observances, not an optional activity. For example, in Wessling v. Kroger, 554 F. Supp. 548 (E.D. Mich. 1982), an employee was fired after leaving work early to set up for her daughter’s church activity. The court defended the employer stating that this request was not for a mandated religious observance.  

B. Employer’s Hardship

If an employer can prove undue hardship, the employer is excused from accommodating the employee’s religious objection. Instances of undue hardship occur where the employer, in accommodating the employee, would suffer more than a minimal loss of funds,[20] would be violating a provision of a collective bargaining agreement, or where other employees would be burdened.[21]

When accommodating an employee, the Supreme Court has held that an employer is not required to offer the most reasonable alternative.[22]  Any reasonable alternative is sufficient to comply with Title VII, even if the employee prefers a different accommodation.

Courts do recognize that businesses in the retail industry often require Saturday and Sunday work. While the employer must attempt to accommodate the employee, through scheduling and unpaid leave, the courts do expect the employee to respect the good faith attempt of the employer and also not cause a labor or financial hardship for the employer. Essentially, as in the Howard v. Haverty Furniture Company, 615 F.2d 203 (5^th Cir. 1980), and Chrysler Corp. v. Mann, 561 F. 2d 1282 (8^th Cir. 1977), cert den., 434 U.S. 1039 (1978), cases, the courts ruled that an employee must first discuss his religious obligations with his employer, and be reasonable in his expectations for accommodation.

IV.       APPLICATION OF TITLE VII TO COMPANY ACTIVITIES

A.     Normal Company Functions

1.      Religious Mission

Employers do not unlawfully discriminate if they base their business objectives and goals upon Biblical principles. An Employer does not discriminate on the bases of religion by affirming the faith of its owners in business objectives. “Title VII does not, and could not, require individual employers to abandon their religion.”  E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610 (9^th Cir.1988). In Townley, the employer required employees to attend weekly religious services. The employee-plaintiff objected to the mandatory attendance and asked to be excused. The employer instead required attendance but told the employee that he did not need to participate.  In response, the court held that making the attendance mandatory over the objection of the employee was a violation of Title VII’s prohibition against religious discrimination.

It is entirely permissible for employers to set up or structure the framework of their companies’ missions and objectives with Biblical principles. However, employers must be careful not to give either prospective or current employees the perception that employment or advancement within the company depends upon their agreement or acquiescence to their religious beliefs.  Employers should make it absolutely clear to the employees that their employment or promotion is not in any way dependent upon their agreement with the employers’ Christian beliefs. This can be accomplished in many different ways. For example, applications for employment should state that applicants are considered for all positions without regard to religion. This statement should be included in company materials, including orientation materials, employee handbooks, or employee evaluation forms. It is also important that these statements reflect the true company policy, and do not discriminate on the basis of religion.

2. Hiring Practices/Interviews

Employers must be very careful about what questions they ask prospective employees in an interview.  Courts interpret Title VII very strictly and have found that any questions relating to an employee’s religion potentially violate Title VII.

Specifically asking potential employees about their religious beliefs is a clear violation.  Even if the employer offers a disclaimer that the employee’s answer will not affect employment decisions, merely asking direct questions about religion violates Title VII.[23]  One court found that when an interviewer asked the specific religion of the potential employee and then chose not to hire him, that Title VII had been violated.[24]

General questions about a person’s hobbies or interests, however, can generally give an employer a chance to get to know an employee without violating Title VII.  Nevertheless, employer must remember that all questions they ask must be rationally related to the job requirements to avoid a violation,[25] and any indication that answers showing religious beliefs have influenced the hiring decision can give rise to a potential violation.[26]  Inquiries that indirectly or inadvertently lead to information about a potential employee’s religious beliefs are not a per se violation, however, the fact those questions were asked will weigh significantly towards a violation if the employer cannot show an objective rational reason that the question related to job requirements.[27] 

Employers may ask questions related to scheduling.[28]  For example, an employer can ask if there are any days the potential employee is unable to work.  These inquiries must, however, be related to job performance.[29]  In EEOC Dec. No. 71-1469,[30] the employer asked a potential employee if he was Jewish during his interview out of concern for the potential for absences resulting from upcoming Jewish holidays.  In that instance, the court found that the employer violated Title VII.  A general question regarding scheduling and availability, though, would not be a violation.

A statement by the employer evidencing a preference for a particular religion, even without specific questions is a potential violation of Title VII as well.[31]  In Jerge v. City of Hemphill ,[32] statements made during the interview process showed the stereotypes held by the interviewers and the court held that those statements were sufficient to show intent to discriminate. 

Overall, any specific inquiries about a prospective employee’s religion will violate Title VII, but questions that may indirectly lead to that information may not be a violation.  In addition, if a prospective employee freely volunteers personal information that is not a result of a leading or pointed question by the employer, there will likely not be a violation.  As long as all questions rationally relate to the requirements of the job and the employer does not state a preference for any religion, Title VII will not be violated.

Following the interview questions, it is important to address the Christian or religious nature of your company. Make the prospective employee immediately aware that there are Christian employees in the office. Ask the applicant whether he or she would be comfortable and able to tolerate the accompanying religious celebrations and activities.

The failure to hire, or the discharge of an employee, because of his religion is a violation of Title VII. In one situation, a company inquired of a qualified Jewish applicant whether he was Jewish and instead hired a less-qualified Gentile for the position[33]. The situation increases in complexity when it involves discharge of an employee. If a discharge situation arises, the employer should have documented the reasons for discharge. Also, when hiring an employee, it is important to hire the most qualified applicant for the position.

It is imperative that employers make it clear to the prospective employee that at no time will any employee be required to participate in any religious celebration, party, activity, or Bible study, which is not related to work.

3.      Regulation When Private Time Affects Business

Although there is no constitutional prohibition against an employer establishing certain guidelines for behavior both inside and outside the workplace, the regulation of an employee’s private time is less clear. There are state laws which may override the employer’s right to regulate an employee’s private time. For instance, some states have human rights laws that prohibit discrimination based on sexual preference or sexual orientation.

When requiring certain behavioral standards, the employer must state them in advance and apply them consistently to all employees. It is recommended that written policies be reviewed by the company’s labor law attorney to ensure compliance with all laws, and that the company policies do not infringe on the rights of employees. In general, a policy is more likely to be enforceable when it is clearly related to business interests.

4.      Union Dues

Under Title VII, an employee is protected from paying union dues where he holds a sincere religious belief against unions or paying union dues. The employee is protected from paying union dues by following a few simple guidelines. The following information will advise your employees of their right to refuse to pay union dues.  

Title VII of the Civil Rights Act accommodates persons who object to the payment of union dues on religious grounds by allowing them to redirect their dues to a charitable, non-profit organization as a substitute form of union payment.

The courts have uniformly interpreted this provision to require accommodation through substitute charitable payments (e.g. EEOC v. University of Detroit , (1990)). In some instances, uncooperative unions have tried to discourage teachers from transferring their union dues to charities by demanding proof of their religious beliefs. In every instance, the courts have decided in favor of the employee, ruling they must only state that it is against their religious beliefs (e.g., Wilson v. NLRB, 920 F.2d 1282 (1990)).

Union dues are spent in two different ways. First, there is the “agency fee,” which is used by the union to cover administrative costs.  This fee constitutes the majority of an employee’s union dues.  The remainder of the union dues may be used for “political activity,” i.e., donated or used to promote the union’s political agenda. The United States Supreme Court has ruled that upon an employee’s request, this “political activity” money must be refunded directly to the employee with no questions or repercussions. While the larger portion of union dues (the “agency fees”) must be donated to the charity of the employee’s choice, the “political activity” portion of the dues can be refunded directly to the employee. The employee simply must include the language that is stated in the sample letter in the Choose Charity packet or on the website: www.choosecharity.org (found on the menu at the top of the home page).

If a person chooses to have his Agency Fees paid to a charity, he will retain all rights and benefits of collective bargaining. However, some benefits provided by the union may be forfeited, such as additional liability insurance, etc., but can, in most cases, can be replaced at a much lower cost.

5.      Distributing Religious Messages/Literature to Customers

There exists no state or federal laws forbidding a business from manifesting a faith through the products or services provided. For example, Alaska Airlines distributes to all of its passengers a small scenic picture with a Bible verse on it. In-and-Out Burger puts “John 3:16” on the bottom of all of their beverage containers. So long as the vender does not refuse to serve a customer based upon the customer’s religious beliefs, there is likely no violation of Title VII.

6.      Name Selection

Businesses may choose a name for their business that reflects the religious perspective of the business. Some examples of such business names include: “Cornerstone Financial Services,” “Agape Books,” and “The Lord’s Gym.”

B. Religious Activities

1.      Evangelizing  

It is entirely permissible for the employer or owner of a business to witness to his employees.  He can talk about his religious beliefs with his employees, as long as the employees know that their continued employment or advancement within the company is not in any way conditioned upon consent to, or compliance with, the employer’s religious beliefs.  For example, one employer shared the Gospel with an employee and invited him to church.  The court held that the employer’s actions did not discriminate against the employee.  It is imperative in witnessing to a particular employee to stop if the employee objects, as unwelcome evangelism could possibly constitute religious harassment if the employer persists.  The employer cannot impose his religious beliefs on his employees

2.      Distributing Materials

Just as it is permissible to share religion through verbally witnessing, the employer can also distribute religious literature to his employees in the form of written materials, such as pamphlets, books, and newsletters.  However, the employer must be cautious he does not give employees the impression they must agree with his religious beliefs in order to keep their job or be promoted.  For example, in one situation where a Jewish employee was terminated for complaining about the printing of a Bible verse on his paychecks and the religious content of a company newsletter, the court held that the termination was wrongful. When the employer shares his religious convictions with his employees, and an employee disagrees or objects to the sharing, the employer may not take any adverse action against that employee for objecting.

An employer must be ready to accommodate any employee’s objections to religious speech contained in any publications he distributes to the employees.  It may be a sufficient accommodation to provide the objecting employee with a publication that does not contain the religious content.  Additionally, it is important to counter any impression given by the publications that the employee’s job security or promotion is contingent upon agreement with the employer’s beliefs.  This can be accomplished by including a statement, in any publication with religious material that the employer does not discriminate on the basis of religion for purposes of continued employment, employee benefits, or promotion.

3.      Bible Studies

As long as attendance is not mandatory, an employer can hold regular prayer meetings, Bible studies, and/or devotional meetings for the employees.  Management may also be actively involved in these meetings, as management participation does not make the meetings discriminatory.  In order to guarantee that employees understand that the Bible studies or devotional meetings are voluntary, any notice of the meetings should clearly state that the meeting is not mandatory.  It is advisable that these devotional meetings are held before the workday begins, during breaks, or after work.   

4.      Chaplain Programs

The concept of chaplains is nothing new.  The United States Armed Forces have always had chaplains, meeting the immediate religious needs on and off the battlefield.  Why then do businesses not provide the same service to their employees?  Some business owners express fears that they might be violating some federal or state discrimination statute or, even worse, the Constitution.  Although the presence of a chaplain in a business does not violate the Constitution nor any discrimination statutes, a business owner does need to take some precautionary measures to prevent any grounds for possible litigation from a disgruntled (or recently terminated) employee.

If the owner wishes to have one of their employees serve as chaplain, their role needs to be spelled out beforehand, in black and white, so that employees confiding with the chaplain regarding a personal matter are not later surprised.  For example, the employer is encouraged to have the chaplain only for comfort or to discuss personal matters with the employee.  Professional work related matters should be handled through normal corporate protocol.  A chaplain should also keep the confidentiality of the employee at all times.  This not only protects the employee, but also protects the employer from ever being accused of making hiring or promotion decisions on a personal matter (e.g., struggle with sexual orientation) that would possibly violate a state discrimination statute.

This need to protect the employer from any such accusations leads some employers to take a different route…. linking up with local clergy who, on a voluntary or free service basis, visit the business to encourage the employees as well as set aside a time for personal one-on-one ministering during lunch time, break time, or before or after work.  Chaplains may also assume the role of leading a lunchtime Bible study.

The effects for business implementing a chaplaincy program have already become self-evident.  For example, a major fast food company initiated a chaplaincy program and found a significant drop in the frequency of employees calling in sick.  The chaplaincy also sends a message of care and concern that the company has for its employees, contributing to reciprocal feelings of corporate loyalty by the employee.

However, once the chaplaincy program is created, the business owner needs to make it very clear in writing to all employees that this program is a service, and that any interaction with the chaplain strictly voluntary and will have no effect on the hiring, promotion or salary decisions of management.

5.      Other Religious Activities

In addition to Bible studies, other religious activities may be allowed.  Corporations can choose to sponsor students desiring to attend Christian summer camps.  They may offer tickets to religious events, and optional religious words of inspiration or scripture may be provided via the Internet to other workers.  Prayer may be offered before staff meetings, so long as attendance for the prayer portion is optional.

V.        PROTECTING AGAINST LIABILITY

To protect against liability, an employer should be consistent in applying company policies.  When hiring an employee, the employer should notify the applicant of the religious nature of the company and inquire whether this will affect that applicant’s job performance.  For example, this would include informing the applicant of company- sponsored Christmas and Easter functions.  In accommodation situations, where the employee had made known his religious objection and requests an accommodation, the employer should document all communication in that regard.  As with all employees, the employer should document all grounds for which the employee may be subject to termination.  This documentation should consist of valid reasons that are consistent with company policy.  The employer should avoid discussing the employee’s religious beliefs with a third party as it could later be misconstrued as religious discrimination.  As discussed previously, employers who provide sensitivity training seminars with regard to religious tolerance and accommodation in the workplace help to shield themselves from future liability resulting form a hostile action by one employee to another employee.