F A L L 2 0 1 3
to avoid actual disruption (e.g., desig-
nating an unused or private location in
the workplace where a prayer session
or Bible study meeting can occur if it is
disrupting other workers);
Incorporate a discussion of religious ex-
pression, and the need for all employees
to be sensitive to the beliefs or non-be-
liefs of others, into any anti-harassment
training provided to managers and
Advise their supervisors or managers of
the nature of the conflict between their
religious needs and the work rules.
1 42 U.S.C. § 2000e-2(a)(1).
2 See, 42 U.S.C. § 2000(e)(j); see also Ansonia Bd. Of
Educ. v. Philbrook, 479 U.S. 60 (1986). Proselytizing
is usually defined as inducing someone to convert to
one's faith. http://www.merriam-webster.com/dictionary/
3 Public employers face an even more daunting chal-
lenge. The First Amendment's Free Exercise Clause,
which protects an individual's right to practice his or
her own religion against restraint or invasion by the
government (Sch. Dist. of Abington Twp. v. Schempp,
374 U.S. 203, 222-23 ), circumscribes public
employers' ability to regulate employee proselytizing.
The First Amendment's Establishment Clause, which
prohibits governmental entities from compelling an
individual to participate in a religion, or its exercise,
or otherwise from taking action that has the purpose or
effect of promoting or endorsing a particular religious
faith or religion in general (Lee v. Weisman, 505 U.S.
577, 587 ), requires public employers to bar
proselytizing when it may be perceived as official
government speech. See, e.g., Tucker v. California Dep't
of Educ., 97 F.3d 1204, 1213 (9th Cir. 1995), quoting
Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517,
522 (9th Cir. 1994), cert. denied 515 U.S. 1173 (1995)
("[a] teacher appears to speak for the state when he or
she teaches; therefore, the department [of education]
may permissibly restrict such religious advocacy").
4 The Title VII test for determining religious harassment
parallels the test for sexual harassment. See, e.g., Bo-
dett v. Coxcom, Inc., 366 F.3d 736, 744 (9th Cir. 2004).
5 See, e.g., Tucker v. California Dep't of Educ., 97 F.3d at
6 "[D]isparag[ing] the religion or beliefs of others" in the
workplace may be illegal," according to the U.S. Equal
Employment Opportunity Commission ("EEOC").
EEOC Fact Sheet on Proposed Guidelines on Harass-
ment Based on Race, Color, Religion, Sex.
7 See, Powell v. Yellow Book USA, Inc., 445 F.3d 1074
(8th Cir. 2006) (Recent convert to evangelical Chris-
tianity felt obliged to expound her religious beliefs to
co-workers. When co-worker complained, she stopped
talking to the employee about her religious beliefs.
Rejecting the co-worker's hostile work environment
claim, the court held that the communications did not
rise to requisite level of being severe and pervasive).
8 Chalmers v. Tulon Co., 101 F.3d 1012, 1020-21 (4th
Cir. 1996) (employee, an Evangelical Christian,
claimed she was "led by the Lord" to write to a subor-
dinate at his home, and tell him that "there were things
he needed to get right with God ...").
9 See, Ng v. Jacobs Eng'r Grp., 2006 WL 2942739 (Cal.
Ct. App. Oct. 16, 2006) (Unpublished) (an evangelical
Christian's religious beliefs compelled her to share her
beliefs with co-workers in order to "save" them; she
handed out religious pamphlets and sent myriad unso-
licited and unauthorized internal E-mails inviting them
to "call out to God for all needs," and inviting them to
her unauthorized weekly prayer meetings. When co-
workers complained, employer warned employee that
she was violating its E-mail privacy and anti-harass-
ment policies, and could be terminated; employee
replied that she would take the risk in order to "preach
the gospel." She was subsequently discharged, and her
Title VII lawsuit was summarily dismissed).
10 Carlson v. Dalton, EEOC Request No. 05930480, 1994
WL 735488 (Apr. 26, 1994).
11 See, e.g., Brown v. Polk Cnty., Iowa, 61 F.3d 650 (8th
12 See, Knight v. Connecticut Dep't of Pub. Health, 275
F.3d 156 (2d Cir. 2001) (State employee prohibited
from proselytizing clients she counseled); Quental v.
Connecticut Comm'n on the Deaf & Hearing Impaired,
122 F.Supp.2d 133, 136 (D.Conn. 2000) (public em-
ployee's interest in evangelizing a client while she was
on interpreting assignment outweighed by employer's
interest in avoiding workplace disruption and avoiding
violation of Establishment Clause in dealings with
public); see also, Asselin v. Santa Clara Cnty., 185 F.3d
865 (9th Cir. 1999)(Unpublished) (Public employer not
required to accommodate juvenile probation officer's
"religious practice" requiring him to "share the mes-
sage and principles of Christianity" with minor wards).
13 See, EEOC v. Townley Eng'r & Mfg. Co., 859 F.2d
610 (9th Cir. 1988). When the Townleys, "born again
believers in the Lord Jesus Christ," founded their com-
pany, they made a covenant with God that their busi-
ness would be a "Christian, faith-operated business."
Id. at 612, 625. They enclosed a Gospel tract in all
outgoing mail; printed Biblical verses on all invoices,
purchase orders and other commercial documents; and
held a weekly devotional service during work hours. Id.
14 Id. at 620-21 Young v. Sw. Sav. & Loan Assn., 509
F.2d 140 (5th Cir. 1975) (weekly staff meetings that
included Christian prayers and mixed with business
were deemed impermissible, where attendance was
mandatory, even for atheists).
15 Thomas Carlyle, THE BEST KNOWN WORKS OF
THOMAS CARLYLE: INCLUDING SARTOR RESAR-
TUS, HEROES, HERO WORSHIP, AND CHARAC-
16 EEOC Compliance Manual, 12-IV Reasonable Accom-
modation, (July 22, 2008) (www.eeoc.gov/policy/docs/