Home Attached are the workplace guidelines that apply to federal government
officials, but also to all government officials including school personnel.
As we discussed you may not distribute tracts or talk about religion to
students, but the attached guidelines discuss the manner in which that may
be done with respect to other employees.
You should show this information to your principal or superintendent before
actually distributing the intformation in order to establish the legal basis
for your right to do that.
You should merely offer them the material hand to hand. Do not put it in
school mailboxes. If they indicate they do not want it, make sure not to
harass them by continuing to offer it.
Also keep in mind that one difference here is that with regard to public
schools, tract distribution or conversations about religion must take place
out of sight and earshot of students.
Sincerely,
Barbara J. Weller
Admitted in Florida
Gibbs Law Firm, P.A.
5666 Seminole Blvd., Suite 2
Seminole, FL 33772
(727) 399-8300
Fax (727) 398-3907
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release August 14, 1997
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.
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 ad judicatory
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 super-visors 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 coworkers 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 I 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)(l). 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 VIL 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:
[W]hether 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., 5 10 U.S. 17, 2' ) (199' )).
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. 20OOeo). 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.
THE WHITE HOUSE
Office of the Press Secretary
Remarks by the President
On Religious Freedom in the Federal Workplace
Old Executive Office Building
August 14, 1997
For Immediate Release 10:40 A.M. EDT
THE PRESIDENT: Thank you. Thank you very much. To all the members of the
coalition who are here and to those of you who brought your families, thank
you very much for bringing them. Congressman Cardin, thank you for coming
and for your steadfast support of this cause.
Secretary Riley, thank you for being willing to take on this difficult issue
two years ago when a lot of people thought it was a no-win issue for you.
And you did a superb job. And congratulations on persuading your wife to
stay with you for 40 years. (Laughter.) Someone suggested this morning that
she should be nominated for the Presidential Medal of Freedom for that great
endeavor. (Laughter.)
Ladies and gentlemen, you all know that we are here to announce the issuance
of guidelines on freedom of religious expression in the federal workplace.
Our devotion to religious freedom has shaped our identity from the
beginning, as the Vice President said.
Thomas Jefferson wrote, "We have solved the great and interesting question
whether freedom of religion is compatible with order in government and
obedience to the laws. And we have experienced the quiet, as well as the
comfort which results from leaving everyone to profess freely and openly
those principles of religion which are the inductions of his own reason and
the serious convictions of his own inquiries."
The founders understood that religious freedom is a two-sided coin and,
therefore, our Constitution protects the free exercise of religion while, at
the same time, prohibiting the establishment of religion by the state. This
careful balance is the genius, the enduring genius of the First Amendment.
Indeed, because we are free to worship, or not, according to our own
conscience, as the Vice President said, Americans worship deeply and in very
great numbers. Throughout our history, men and women have come to America to
escape religious persecution elsewhere and secure religious freedom here.
Over time, we'd all have to admit that our own history on this has not been
free from error, but over time, we have continued to do better, and more and
more and more people of many different faiths have been able to put down
roots and pursue their beliefs freely here. And the churches, the
synagogues, the mosques, the other institutions of worship they have built
not only have been their own houses of worship, they have also quite
frequently become centers of service, compassion, and community life; and in
so doing have made our entire nation stronger.
Our own experience in America has led the United States to become a leader
in promoting religious rights throughout the world, as we see through the
establishment last year of the Secretary of State's advisory committee on
religious freedom, as well as our willingness to press for religious freedom
at the United Nations and in our bilateral relations with other countries
across the globe.
Last month, Secretary Albright released a report that underscores our
commitment to helping people of all faiths worship freely and live free of
persecution as a birthright. Our commitment to religious liberty is,
therefore, and it must remain, a key part of America's human rights policy
and an important focus of our democracy.
We also continue to find work that we have to do here at home. In the four
and a half years I have served as President, nothing has given me greater
satisfaction than the efforts of our administration, working with the broad
coalition of individuals and organizations from practically every faith, to
support religious freedom here. Again, let me thank all the members of the
coalition for your support and for your guidance. And let me thank the Vice
President for his shared conviction here. I especially want to thank Steve
McFarlane, Marc Stern, Eliot Mincberg, Buzz Thomas and Rabbi David
Saperstein for the particular work they have done to make today's
announcement possible.
You and the other members of the coalition are the living embodiment of what
I mean when I talk about one America, people coming together across the
lines of faith and political conviction and race to protect the religious
liberties we all cherish. You stood with us in 1993 when I was proud to sign
the Religious Freedom Restoration Act. I was disappointed that the Supreme
Court struck down parts of the act in June, but pleased that its provisions
still apply to federal agencies, entities and institutions. You stood with
us in'95 with Secretary Riley when we issued the guidelines reaffirming that
our young people did not have to leave their religious beliefs at the
schoolhouse door. And we clarified the limits of religious expression
permitted in our schools.
I still say what I said then, no one can seriously question that it
strengthens our young people to be able to pursue their own religious
convictions and, thereby, gain values and strengths, hope and reassurance
that come with faith. Today you stand with us again as we issue these
guidelines to clarify and reinforce the right of religious expression in the
federal workplace. These guidelines will ensure that federal employees and
employers will respect the rights of those who engage in religious speech as
well as those who do not. They do three things.
First, they clarify that federal employees may engage in personal religious
expression to the greatest extent possible, consistent with workplace
efficiency and the requirements of law. Second, they clarify that federal
employers may not discriminate in employment on the basis of religion.
Third, and finally, they clarify that an agency must reasonably accommodate
employees' religious practices.
Today, I'm instructing the Office of Personnel Management to distribute
these guidelines to all civilian branch agencies and officials. And we
expect all employees to follow them carefully. What we accomplish here
together today shows what can be done to protect religious freedom within
the bounds of our Constitution, when people of goodwill and faith come
together.
My own faith, rooted in the assurance of things hoped for and the
convictions of things unseen, calls those of us who share it to a life-long
effort not only to deepen the understanding of the soul, but to bring our
actions, thoughts and feelings into harmony with God's will. On that
journey, as I have said many times in the past, I have been immeasurably
enriched by the power of the Torah, the beauty of the Koran, the piercing
insights of the religions of East and South Asia and of our own Native
Americans, the joyful energy that I have felt in black and Pentecostal
churches and, yes, even the probing questions of the skeptics. That is
America at its best.
My great hope is that we can enter this new century and this new millennium
as the most successful multiracial, multiethnic, multi-religious democracy
the world has ever known. We will get there through efforts like this --
men, women from all walks of life coming together to respect and celebrate
our differences while uniting around the ideals that bind us together, more
importantly, as one America.
Religious freedom is at the heart of what it means to be an American, and at
the heart of our journey to become truly one America. Let us pledge always
to honor it, and, today, to make these guidelines the source of harmony and
strength as we guarantee to all of our people our precious liberty.
Thank you. God bless you. (Applause.) Right Click > Down Load > Save Target As...