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22
T H E P R I M E R U S P A R A D I G M
Proselytizing in the Workplace:
A Balancing Act
Robert I. Gosseen has advised national and international
corporations in all aspects of employment law for more than 40
years. Following 25 years as a name partner in his own firm, he is
now Of Counsel to Ganfer & Shore, LLP, where he heads the firm's
labor practice. He also has taught labor law for many years as an
adjunct professor at the New York University School of Law and the
University of Iowa School of Law.
Ganfer & Shore, LLP
360 Lexington Avenue
New York, New York 10017
212.922.9250 Phone
212.922.9335 Fax
rgosseen@ganfershore.com
www.ganfershore.com
Robert I. Gosseen
Section 703(a) of the Civil Rights Act
of 1964 ("Title VII")
1
which, inter alia,
makes it unlawful for an employer to
discriminate against any individual
with respect to his compensation, terms,
conditions, or privileges of employment,
because of such individual's religion,
imposes parallel duties on employers to
reasonably accommodate their employees'
religious practices, including proselytiza-
tion
,
2
and at the same time, fulfill their
duty to maintain a work environment free
of religious harassment.
3
This, as we shall
see, often requires a neat balancing act.
While there is no "bright line" test to
guide employers, over the years judges
have fashioned a number of commonsense
rules for balancing the competing interests
of religious proselytizing and maintaining
a workplace free of religious harassment,
4
among them:
Engaging co-workers in one-on-one
discussions of religious beliefs, or even
proselytizing them, is permissible,
5
providing it is not abusive (i.e., de-
meaning people of other religions),
6
or
it persists even though the co-workers
to whom it is directed have made clear
that it is unwelcome.
7
Writing religious letters to co-workers
criticizing them for "ungodly, shameful
conduct" is not permissible if it vio-
lates the employer's anti-harassment
policy, even where an employee claims
that her religious belief requires her to
write the letters.
8
An employee may not proselytize co-
workers by sending unsolicited e-mails
to them.
9
"It is unlikely that a one-time offer-
ing of a public prayer would violate
Title VII unless its content denigrated
other religious beliefs or attendance
was mandatory;"
10
"[o]ccasional public
prayers and isolated references to
Christian belief," where there is no
"actual imposition on co-workers or
disruption of the work routine" are
permitted.
11
Religious speech, or proselytizing, that
threatens to impede the employer's
provision of effective and efficient
services is impermissible.
12
While an employer is entitled to
integrate its own religious beliefs and
practices into the workplace, and run
its business according to religious
precepts,
13
if it holds religious services
or programs, or includes prayer in
business meetings or training sessions,
absent a showing of undue hardship,
Title VII requires the employer to ac-
commodate employees who ask to be
excused for religious reasons.
14
Thomas Carlyle's observation, more
than 150 years ago, that "[m]an is em-
phatically a proselytizing creature,"
15
has
never been truer in the workplace. For
employers, maintenance of the balance be-
tween accommodation of some employees'
religious beliefs and practices, including
stepped-up proselytizing, and their co-
workers' right to be free of any perceived
religious harassment, will continue to
require a nuanced approach to achieving
the correct balance, as well as a number of
concrete actions.
Here, the Equal Employment Op-
portunity Commission's suggestions are
eminently practical. Employers, it recom-
mends, should:
Train managers to gauge the actual dis-
ruption posed by religious expression
in the workplace, rather than merely
speculating that disruption may result;
Train managers to identify alternative
accommodations that might be offered
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