fbpx
updated 5:50 PM CDT, Aug 11, 2019
HOT NEWS
What is the difference between purpose and meaning?
Why is the focus on the human element important now?
Amendment to EEA Regulations: New format for EEA4
Separation of disciplinary enquiries into two parts
Protection of Personal Information Policy
Influenza Vaccine Consent Form
The difference between a work practice and a term and condition of employment
Disconnected from global trends? The right of employees to digitally disconnect
Right to disconnect
Lots of young South Africans aren’t going to technical colleges. What can be done
A+ A A-

Guidelines on Religious Freedom and Religious Expression in the Workplace

Guidelines on Religious Freedom and Religious Expression in the Workplace

Note: The "Guidelines on Religious Freedom and Religious Expression in the Federal Workplace" were issued by President Bill Clinton whilst in office, and address issues of religious expression and accommodation of religious practices, and forbid discrimination - for example, in hiring, firing, promoting or otherwise favoring or disfavoring employees - on the basis of their religion. These guidelines do not represent South African law, but rather should be read as possibe best practices.

As our Courts grapple with the Religious Accommodation measures, we will refine these Guidelines to reflect uniquely South African experiences.


Section 1: The basics first: Freedom of … or … Freedom from … Religion in the Workplace?


Should the exercise of religion and religious expression in the workplace be prohibited by Corporate policy?

Freedom of religion has always been interpreted as freedom from religion, too. And just as all employees have the right to worship as they please, so all have the right to not worship at all. The latter right has been relatively easy to exercise-as a non-worshiper you could always stay away from religious services, not watch television on early Sunday morning, close your front doors to missionaries, and/or escape to your office where proselytizing was forbidden.

By permitting and regulating religious exercise and expression in the workplace, are you ready for the following situations?

- Do I have to work on the Sabbath if I think it is a sin?

- Can my company employ a full-time chaplain for employees?

- Do I have to pay union dues if the union supports ...

  • homosexual rights?
  • Marxism?
  • Abortion?

- Can the stated purpose of my company be to glorify God?

How would our law deal with the following scenarios:-

-- an orthodox Jew who was fired because he would not work on the Sabbath;

-- a Seventh-day Adventist terminated because he refused to work on Saturday;

-- a Catholic who lost her job because she would not work on Christmas;

-- a Muslim who nearly lost her job as a flight attendant because she wore a head covering.

- a Catholic woman comes to work wearing an anti-abortion pin in the shape of a foetus.

- inviting employees to a Christmas office party.

Some Typical Situations Employers May be Faced With

Religious discrimination cases frequently allege that an employer failed to accommodate an employee's need to "spread the word." But proselytizing which creates a hostile environment for other employees may create an undue hardship for an employer.

Sometimes the best way to decide what you should do as a supervisor is to turn around and "look" at your options from your employees' point of view.

Let's say you're a division chief in an agency which holds office Christmas parties. One of your employees asks if the division will have a party this year. How would you feel if the office had a Christmas party and you were an employee who doesn't celebrate Christmas?

In a real case, an employee told a co-worker he dreaded December because employees kept wishing him a Merry Christmas, asking him if he were going away for Christmas, and inviting him to office Christmas parties. He was not Christian, and these questions made him feel that he didn't belong, that he was an outsider.

When Denver Nuggets' basketball star Mahmoud Abdul-Rauf refused to stand during the playing of the national anthem before NBA games because of his Islamic beliefs, the public finally got a glimpse of what employment attorneys have known for some time: Religion in the work place is a very sticky issue. Whether it involves a multi-million dollar basketball star, a woman demanding that her employer allow her to wear an anti-abortion pin depicting a 20-week old fetus, Dillards Department Stores facing a class action lawsuit because it allegedly refused to hire individuals who would not work on Sundays, or a teacher's aide demanding the right to keep her hair in dreadlocks, religious discrimination lawsuits are appearing throughout the country in all work environments.

The Seventh Circuit Court of Appeals recently held that a supervisor's proselytizing created a hostile work environment. In Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997), Ives, a born-again Christian, believed that his decisions as police chief should be guided by his faith. He made religious comments during work, routinely asked Venters, a dispatcher, if she had gone to church, and spoke about her salvation. Ives told Venters that "she had a choice to follow God's way or Satan's way, and that she would not continue working for him if she chose the latter." Ives also gave Venters religious materials while referring to her as an at-will employee. These comments were unwelcome by Venters, but she was afraid to ask Ives to stop. When she did ask him, she was fired. The court held that Venters had a right to work without Ives' scrutiny. Further, the Court held that Venters could request an accommodation (i.e., that Ives stop his work-time proselytizing).

In another case, employee Wilson, a Roman Catholic, wore an anti-abortion button to work. The button bore a photograph of a fetus. Many employees reacted strongly. It disrupted work -- employees gathered to talk about the button; and some even threatened to walk off their jobs. The employer tried to accommodate Wilson, offering her three option. She could (1) only wear the button in her cubicle; 92) cover the button while at work; or (3) wear a button without a photograph. Wilson claimed that she could not cover or remove the button because she had promised to be a "living witness." She was fired when she continued to wear the button. Finding that the accommodation offered complied with her religious vow and reduced office turmoil, the Court held that even if Wilson's vow required her to be a "living witness," the employer could not reasonably accommodate that request. Wilson v U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995).

 

Scenario 1

You are in a career ladder position and eligible for your next promotion. Your boss asks you to go to an activity at his church, but you don't go. All of a sudden your "automatic" promotion is held up. Your boss says that you haven't demonstrated that you can perform the duties at the higher level.

What if you are the boss in this same scenario and the religious activity was your daughter's First Holy Communion and party afterwards. You are withholding the promotion for the reason stated above. Now the employee files a complaint that you withheld the promotion on religious grounds. How can you prove otherwise?

Scenario 2

You have control over the conference rooms in your building. You routinely allow religious groups to use them at lunch time (a practice permitted under the guidelines). You've had Baptists, Buddhists, Catholics, and Muslims request rooms so far. There has been no problem; all of them have been quiet and all have left their rooms as clean as they received them. Today you receive a request for a room from a group of Satan worshipers who have announced they will be sacrificing a small animal as part of their religious ceremony. They assure you they will quiet and will leave the room as clean as they get it. You know that once word gets out about their ceremony there will be hell to pay. What do you do?

Scenario 3

You're an Equal Employment Opportunity Officer with a staff of five, all of whom are devout Christians. They all wear crosses, all have Bibles on their desk, and on casual days wear tee shirts with religious expressions. During their breaks they read their Bibles and even have Bible study sessions over lunch. Non-Christian employees of your agency have complained to you that the environment in your own office is hostile to them. They cannot even discuss possible religious discrimination issues with your staff because they feel they won't be given a fair shake. What do you do?

Scenario 4

Are you aware, that by allowing and regulating religious expression in the workplace, and in order not to be discriminatory, our constitution would also allow for the legitimate religious expression of all of the following "new" religious groups:-

Jehovah's Witnesses, Mormons, Church of Scientology, New Age Activists, Moonies, Eastern Martial Arts practitioners, Free Masons (?), Traditional Healers and Sangomas

Questions

Should we continue the separation of church and state? Does Freedom of religion also means Freedom from religion. Isn't it easier to prohibit from the outset, religious expression in the workplace? How would you phrase such a policy statement?


Section 2: Scope and Application of Guidelines


The following Guidelines, addressing religious exercise and religious expression, shall apply to all employees, managers, suppliers and contract employees in the workplace, and shall extend to all business events and occassions.

These Guidelines principally address employees' religious exercise and religious expression when the employees are acting in their personal capacity within the workplace and the public does not have regular exposure to the workplace. The Guidelines do not comprehensively address whether and when the Company and its employees may engage in religious speech directed at the public. Nor do the Guidelines define the rights and responsibilities of employees or agents who are employed/contracted or requested by the Company to fulfill specific religious functions or duties or tasks associated with meeting the requirements of specific religious groups.

For example:-

  • Rabbis who are required to verify the compliance by the Company with kosher culinary requirements;
  • Officials of the Muslim faith instructed to verify compliance by the Company with halaal culinary requirements.

Although these Guidelines, including the examples cited in them, should answer the most frequently encountered questions in the workplace, actual cases sometimes will be complicated by additional facts and circumstances that may require a different result from the one the Guidelines indicate. In such instances, any queries should be addressed to the Human Resources Department for advice and guidance in such individual instances.


Section 3: General Guidelines for Religious Exercise and Religious Expression in the Workplace.


Managers and Supervisors shall permit personal religious expression by employees to the greatest extent possible, consistent with requirements of law and interests in workplace efficiency as described in this set of Guidelines. Managers 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. Managers shall accommodate employees', exercise of their religion in the circumstances specified in these Guidelines. These requirements are but applications of the general principle that managers 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, managers shall not restrict personal religious expression by employees in the workplace except where the employee's interest in the expression is outweighed by the Company's interest in the efficient provision of 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, a Company may not regulate employees' personal religious expression on the basis of its content or viewpoint. In other words, managers 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 (Note: This standard/test is specific to the United States of America, and has not been adopted into our "jurisprudence on discrimination"). Managers, 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 Company 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 Company's interest in promoting the efficiency of the services it performs. Manager's should exercise this authority evenhandedly and with restraint, and with regard for the fact that South Africans are used to expressions of disagreement on controversial subjects, including religious ones. Managers are not required, however, to permit employees to use work time to pursue religious or ideological agendas. 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 (see USA "viewpoint discrimination" principle), 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 Company's or employee's carrying out of their official responsibilities.

Examples

(a) An employee may keep a Bible or Koran on her private desk and read it during breaks.

(b) A manager 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 managers 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 a Company / manager permits unrestricted nonreligious expression of a controversial nature, it / he or she 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 corporate 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.


(3) 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 Corporate 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, employers 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 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 employer should not tolerate it.

(4) Expression in Areas Accessible to the Public.

Where the public has access to the workplace, all employees must be sensitive to the Company's requirement that expression not create the reasonable impression that the Company is sponsoring, endorsing, or inhibiting religion generally, or favoring or disfavoring a particular religion.

However, even in workplaces open to the public, not all private employee religious expression is forbidden. For example, 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 Company 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.

The Company may not discriminate against employees on the basis of their religion, religious beliefs, or views concerning religion.

(1) Discrimination in Terms and Conditions.

No manager 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 manager may not refuse to hire Buddhists, or impose more onerous requirements on applicants for employment who are Buddhists.

(b) A manager 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 managers 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.

This prohibition leaves supervisors 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 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 co-workers to a son's confirmation in a church, a daughter's bar 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 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 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 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 workplace. In a particular case, the question of employer liability would require consideration of additional factors, including the extent to which the Company was aware of the harassment and the actions the Company 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. A manager 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 a manager 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 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.

Law requires that a Company accommodate employees' exercise of their religion unless such accommodation would impose an undue hardship on the conduct of the Company's operations. Though a Company need not make an accommodation that will result in more than a de minimis cost to the Company, 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 Company 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 Company regularly permits similar accommodations for nonreligious purposes.

Examples

(a) A Company 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 Company 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 a Company's work rule imposes a substantial burden on a particular employee's exercise of religion, the Company must go further: a Company should grant the employee an exemption from that rule, unless the Company has a compelling interest in denying the exemption and there is no less restrictive means of furthering that interest.

Examples

(a) A supervisor 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 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 a Company 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 the Company 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 4. Guiding Legal Principles. (Based on USA) What would the guiding legal principles be in South Africa?

In applying the guidance set forth in section 1 of these policy guidelines, managers should consider the following legal principles.


A. Religious Expression. (Based on USA) What would the guiding legal principles be in South Africa?

It is well-established that the Free Speech Clause of the First Amendment protects 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) (CAPITOL SQUARE REVIEW AND ADVISORY BOARD et al. v. PINETTE et al). 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 workplace, proselytizing should not be singled out because of its content for harsher treatment than nonreligious expression.

However, it is also well-established that an employer has broader discretion to regulate its employees' speech in the workplace. Employees' expression on matters of public concern can be regulated if the employees' interest in the speech is outweighed by the interest of the Company, as an employer, in promoting the efficiency of the services it performs through its employees. 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 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 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.
(Based on USA) What would the guiding legal principles be in South Africa?

Title VII of the Civil Rights Act of 1964 (Title VII, Civil Rights Act of 1964, as amended) 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)(1). The 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 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,( Religious Freedom Restoration Act of 1993) 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.
(Based on USA) What would the guiding legal principles be in South Africa?

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 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 VII, 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., 510 U.S. 17, 23 (1993)TERESA HARRIS, PETITIONER v. FORKLIFT SYSTEMS, INC..See also US Supreme Court Index on Religion

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.
(Based on USA) What would the guiding legal principles be in South Africa?

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. 2000e(j). For example, by statute, if an employee's religious beliefs require her to be absent from work, the 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 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. (Based on USA) What would the guiding legal principles be in South Africa?

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 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 employees from using Government funds or resources (other than those facilities generally available to government employees) for private religious uses.

Section 5. Legal Standing of Guidelines

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 Company, its employees, its officers, or any person. Questions regarding interpretations of these Guidelines should be brought to the Human Resources Department (or Manager of each department).


Section 6: Non-Compliance or Breach of Guidelines

Some questions to consider:-
What should the consequences be for an employee's breach of these guidelines? What are an employer's obligations in terms of enforcing these guidelines? What legal recourse has an employee against his employer in failing to implement or police these guidelines? Please feel free to post your responses or views.


US Supreme Court Cases - Religion

Agostini v. Felton, 117 S. Ct. 1997 (1997)
-- Whether the Court should overrule its decision in Aguilar v. Felton, 473 U.S. 402 (1985), in which it held that the Establishment Clause of the First Amendment prohibits public school employees from providing remedial education to students at parochial schools. Decided June 23, 1997. RACHEL AGOSTINI, et al., PETITIONERS 96-552 v. BETTY LOUISE FELTON et al. CHANCELLOR, BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., PETITIONERS 96-553

Boerne, Texas v. Flores

, 117 S. Ct. 2157 (1997)
Freedom of Religion-- Court agreed to consider the constitutionality of the Religious Freedom Restoration Act of 1993 (RFRA). A federal district court declared the act unconstitutional as a violation of the doctrine of separation of powers. However, the U.S. Court of Appeals for the 5th Circuit reversed, holding that RFRA is constitutional. Decided June 25, 1997. CITY OF BOERNE, PETITIONER <I> v. <-i> P. F. FLORES, ARCHBISHOP OF SAN ANTONIO, AND UNITED STATES

Capitol Square Review and Advisory Board v. Pinette

, 114 S. Ct. 2481 (1995)
Freedom of Speech/Freedom of Religion -- Whether a private party has the right to display an unattended religious symbol in a traditional public forum, even if the forum is located next to a governmental building. CAPITOL SQUARE REVIEW AND ADVISORY BOARD et al. v. PINETTE et al. --
CAPITOL SQUARE REVIEW AND ADVISORY BOARD, et al., PETITIONERS v. VINCENT J. PINETTE, DONNIE A. CARR and KNIGHTS OF THE KU KLUX KLAN

Rosenberger v. University of Virginia

, 115 S. Ct. 2510 (1995)
Freedom of Speech/Freedom of Religion -- Whether a public university that pays printing costs for a number of student publications can deny that benefit to a student-run religious publication. RONALD W. ROSENBERGER, et al., PETITIONERS v. RECTOR and VISITORS OF THE UNIVERSITY OF VIRGINIA et al.

Board of Education of Kiryas Joel Village School District v. Grumet

,
114 S. Ct. 2481 (1994)
-- Whether a state may create a special school district designed to serve a distinct religious community. BOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT, PETITIONER 93-517 v. LOUIS GRUMET et al. BOARD OF EDUCATION OF MONROE WOODBURY CENTRAL SCHOOL DISTRICT, PETITIONER 93-527

Church of Lukumi Babalu Aye v. Hialeah

, 508 U.S. 520 (1993)
-- Whether a city may constitutionally enact ordinances that are designed to prohibit certain religious practices. CHURCH OF THE LUKUMI BABALU AYE, INC. and ERNESTO PICHARDO, PETITIONERS v.

Lamb's Chapel v. Center Moriches Union Free School District

, 508 U.S. 384 (1993)
Freedom of Religion/Freedom of Speech -- Whether a local school district that allows its facilities to be used for social and civic purposes may prevent a religious organization from using the facilities to show a movie that presents family issues from a religious perspective. LAMB'S CHAPEL and JOHN STEIGERWALD, PETI TIONERS v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al.

Zobrest v. Catalina Foothills School District

, 113 S. Ct. 2462 (1993)
-- Whether a state would violate the Establishment Clause if it, pursuant to the federal Individuals with Disabilities Education Act, provided a sign language interpreter for a child attending a Catholic high school. LARRY ZOBREST, et ux., et al., PETITIONERS v. CATALINA FOOTHILLS SCHOOL DISTRICT

Lee v. Weisman

, 505 U.S. 577 (1992)
-- Whether a public school that includes prayers as part of a graduation ceremony violates the Establishment Clause of the First Amendment. ROBERT E. LEE, individually and as PRINCIPAL OF NATHAN BISHOP MIDDLE SCHOOL, et al., PETITIONERS v. DANIEL WEISMAN etc.


Note:

The "Guidelines on Religious Freedom and Religious Expression in the Federal Workplace" were issued by President Bill Clinton whilst in office, and address issues of religious expression and accommodation of religious practices, and forbid discrimination - for example, in hiring, firing, promoting or otherwise favoring or disfavoring employees - on the basis of their religion.

Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
Login to post comments

HR Associations