DO’S AND DON'TS FOR CHRISTIAN ENTREPRENEURS

Presentation to the Colorado Christian University Entrepreneur Class

By Michael J. Norton, President and General Counsel
Colorado Freedom Institute January 28, 2016

 I.       The Historical Background

"Conscience is the most sacred of all property." James Madison

The first right mentioned in the First Amendment is religious freedom, which protects the right not to be compelled to act in violation of personally held moral convictions.

 Our Founders placed the individual's relationship with God above his obligation to the state. Self­ evident truths were endowed to all by the Creator.

 America has long recognized our conscience right not to be forced by the government to violate our religion. We have provided exemptions for individuals who could not fight in the military, work on certain days of the week, pledge allegiance to our flag, be involved in capital punishment, or be involved in abortions.

As the Supreme Court has said, if there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."1

II.    Important Supreme Court Cases

A pivotal case in interpreting and applying the First Amendment's Religion Clause is Employment Division v. Smith.2 In Smith, the U.S. Supreme Court ruled that any neutral and generally applicable law which impacts religion will nevertheless be upheld as constitutional. Smith held that, under the First Amendment, "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability."

Smith dealt with a law prohibiting the transportation of peyote. Claims by Native American tribes that used the drugs in religious rituals did not trump this Oregon criminal law, said the Court. The Court reinterpreted its previous Free Exercise decisions and held that "neutral and generally applicable" laws would not normally violate the First Amendment, even if they impaired religious exercise in a given application.

Before Smith, the Supreme Court applied the Sherbert-Yoder test and held that, in order for a religious challenge to a law to be upheld: (a) there must be a sincerely held religious belief negatively impacted or burdened by some government rule or regulation; (b) the government must have a compelling governmental interest for the restriction; and (c) the government must achieve its interest by the least restrictive means available.

 In Sherbert v. Verner,3 plaintiffs religious exercise was impermissibly burdened when plaintiff was forced to "choose between following the precepts of her religion by resting, and not working, on her Sabbath and forfeiting unemployment benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." In Wisconsin v. Yoder, 406 U.S. 205, 218 (1972), members of the Amish religion were forced to select between educating their children as their religion demanded and facing criminal prosecution, or sending their children to school in contravention of their religious beliefs.

Thus, after Smith, a law would be upheld, if it was: (a) generally applicable, i.e., applied to everyone; and (b) neutral in its application, i.e., applied to everyone the same. After Smith, the only time a law would be struck down as in violation of the Religion Clauses was if the law specifically targeted religion for discriminatory treatment or if the violation of religious liberty was combined with a violation of another right, usually a violation of a free speech right.

So-called "neutral" laws are those that do not directly mention or target religion, such as: employment non-discrimination laws, accommodation laws, professional licensing laws, abortion-producing drug mandates, zoning laws, and the like.

III. The federal Religious Freedom Restoration Act and State Protections

Because laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise, Congress, concluded that governments should not burden religious exercise without compelling justification and responded to the Supreme Court's Smith decision by passing the Religious Freedom Restoration Act (RFRA). The bill, passed in 1993, was signed into law by President Clinton.

RFRA prohibits "[g]overnment" from '"substantially burden[ing]'  a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 4

RFRA, as enacted, was applicable to both federal government action and state government action and restored the "compelling interest test" to a court's review of such governmental actions impacting religion. RFRA forbids the government from "substantially burden[ing]  a person's exercise of religion even if the burden results from a rule of general applicability" unless the government "demonstrates that the application of the burden to the person (I) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

However, in City of Boerne v. Flores,6 the U. S. Supreme Court held that RFRA could not be applied to state laws. Thus, state religious freedom protections that were weakened by the Smith decision were not protected  by the federal  RFRA

Nevertheless, states are free to restore the religious freedoms once protected by the "compelling interest test." In fact, 16 states (not including Colorado) have enacted state RFRAs, either legislatively or by constitutional amendment, and 12 others have court decisions which effectively provide the same level of protection

IV.  Title VII Protections and State RFRAs

 Federal and state employers can be sued for religious discrimination either under Title VII or 42 U.S.C. § 1983.7 There is s some authority indicating that Title VII preempts other remedies for suits by government employees, but clearly Title VII is not the exclusive remedy when a federal employee brings constitutional and RFRA claims independent of Title VII against a federal employer.8

The courts that have addressed the question of whether Title VII preempts RFRA an odd issue to even consider since RFRA was enacted after Title VII re split.9 Accordingly a RFRA claim will likely continue to be made on behalf of federal employee plaintiffs until the matter is settled because, among other things, a RFRA claim can be brought without satisfying the strict deadlines and exhaustion of administrative remedies required by Title VIL

As for state and municipal employees, sixteen states have taken it upon themselves to enact RFRAs protecting their citizens: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.  See Appendix I.

The protection varies from state to state. For instance, only a minimal burden on free exercise, not a substantial one, is required to trigger the act in Alabama, Connecticut, Kansas, and Minnesota.10 Arid at least twelve states have interpreted their constitutions to provide the strict scrutiny applied by the United States Supreme Court prior to Smith: Alaska, Indiana (possibly), Kansas, Maine, Massachusetts Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin. 11 So any claim brought on behalf of state or municipal employees in these twenty-eight states should include statutory, state RFRA, or state constitutional causes of action, as applicable.

V.    Title VII - an Overview12

Most private and government employers are prohibited from discriminating against employees on the basis of religion by virtue of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972.13 Title VII prohibits (1) employers from treating applicants or employees differently because of their religiousbeliefs;14(2) workplace harassment because of religious beliefs;15 (3) denying a reasonable accommodation of an employee's sincerely held religious belief; and (4) retaliating against an employee for filing a complaint or requesting an accommodation of religious beliefs. 16

 Title VII is specifically designed to address the right of conscience of employees. Generally, an employer must reasonably accommodate an employee's religious observances or practices as long as the accommodation will not result in undue hardship to the employer's business.17 According to the Third Circuit, Title VII is:

plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.... This is ... part of our "happy tradition" of avoiding unnecessary clashes with the dictates of conscience. 8

A.     Threshold Requirements for Title VII Coverage

 Title VII applies to most large private employers (15 or more employees) as well as to governmental employers. With regard to employers, Title VII states:

It shall be an unlawful employment practice for an employer:   

(1)     to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2)       to limit, segregate, or classify his employees or applicants for employment in any way which would deprive, or tend to deprive, any individual of employment opportunities or otherwise adversely affect his status as an employee, on the basis of such individual's race, color, religion, sex or national origin.19

 Title VII covers an employer who has fifteen or more employees on its payroll for at least twenty weeks within a given yea r.20 Once coverage is established for an employer in a given year, Title VTJ coverage will extend through the following year, even if the number of employees falls below the minim um.21 ' 22

As to what is an "employee," the statute is not limited to traditional definitions of employees.23ButTitle VII does not apply if the victim of discrimination was an independent contractor.24

The statute also applies to state and local governments through 42 U.S.C. § 2000e(a)25and to the federal government via 42 U.S.C. § 2000e-16. In fact, Title VII is the exclusive judicial remedy offering injunctive relief for discrimination in federal employment.26 Title VII does not apply to religious discrimination by religious organizations.27

   B. Deferral to State Agencies

 The majority of jurisdictions have "deferral agencies," typically denoted as a "state equal employment opportunity agency" or "human rights commission." These are state or local agencies authorized to seek or grant relief from the discriminatory practice or to institute criminal proceedings. 28

In deferral jurisdictions , the EEOC has no jurisdiction unless a timely charge is first filed with the deferral agency.29 Most states require a charge to be filed with their deferral agency within 180 days following the act of discrimination.30The..E OC must then allow the deferral agency not less than 60 days after the charge is filed to dispose of the charge.31 The deferral agency may waive its jurisdiction through a work-sharing agreement with the EEOC, thus "terminating" the deferral agency proceeding and permitting the EEOC to begin processing the claim. Although EEOC may initially accept a charge and file with the state agency on its own initiative, this should not be relied upon. The aggrieved party should file a timely charge directly with the deferral agency to ensure meeting this prerequisite to filing suit.

C.    Filing with the EEOC

 In states without a deferral agency charges of specific discriminatory acts must be filed with the EEOC within 180 days after the discriminatory act occurred.32 This and other time periods specified by Title VII may be tolled when equity demands modification.33 ,Where there is a state deferral agency, the time period for filing with the EEOC is extended to 300 days, or within 30 days after receiving notice that the state has terminated the proceedings under state and local law, whichever is earlier.34 The EEOC may, if it receives the charge first, file the state charge on its own initiative and then automatically re-file the charge with itself after the 60-day deferral period expires.35 But the surest course of action is to directly file with the EEOC char e once the state deferral period expires, or the state terminates its investigation, whichever comes first. 6

Once the charge is timely filed with the EEOC, it has 180 days of exclusive jurisdiction over the charge. Because the state deferral period is mandatory, the combined effect is that a plaintiff must first await the results of state efforts for 60 days, then ensure that an EEOC charge is filed, and then await the results of EEOC conciliation efforts for 180 days. There is no statute of limitations on the EEOC investigation and conciliation efforts.

In any event, the charge must be filed with the EEOC before 300 days have elapsed from the date of the last discriminatory act. Meeting this limitation may require the aggrieved party to petition the deferral agency to waive its exclusive jurisdiction.

D.     Civil Actions by the EEOC or by the Aggrieved Party

The EEOC may bring a civil action if it fails to secure a conciliation agreement within 30 days of either the charge being filed with EEOC or the 60 day state deferral period expiring.37 If the EEOC dismisses a charge filed with it, or if the EEOC fails to file a civil action within 180 days of exclusive jurisdiction, then the EEOC must so notify the person aggrieved.38 Alternatively, when EEOC conciliation efforts extend past the 180 days of exclusive EEOC jurisdiction, the aggrieved person need not await the outcome of conciliation, but may instead request a "notice-of-right-to-sue." In either circumstance, the aggrieved person may then bring a civil action on his own behalf within 90 days of receipt of such notice.39 Should the aggrieved person allow the EEOC to continue its conciliation efforts past the exclusive jurisdiction period, he may file suit if the final EEOC resolution is adverse to him, even if the conciliation takes years to complete.

In the case where the aggrieved person is a state or local government employee and the Commission fails to secure a conciliation agreement, the EEOC must refer the case to the Attorney General.40 The person aggrieved has a right to intervene in a civil action brought by the Commission or the Attorney General. 1 The charging party may bring suit on his behalf subject to the same limitations above, and after suit is filed the EEOC is precluded from filing an independent action.

In summary, Title VII first requires that the charge be filed with the deferral agency if within a deferral jurisdiction, or directly with the EEOC if not. In deferral jurisdictions, filing with the deferral agency must be followed by a timely filing of the charge with the EEOC. The time periods that determine timeliness are measured from the date that on which the discriminatory act occurred. Upon filing of the charge, there is a 180-day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC, either after conciliation was completed or the private party has requested a right to sue letter.

E.     Federal Plaintiffs

Title VII requires federal employees to use significantly different procedures. Claims are filed by federal employees with Equal Employment Opportunity Counselors employed by the federal employee's employing agency, not with the EEOC. Before a formal claim is filed, the aggrieved person must file a "pre-complaint" notice with a counselor within 45 days of the discriminatory act.42 The counselor must attempt to resolve the dispute within 30 days.43 At the end of the dispute resolution period, a final interview is conducted with the aggrieved party. If the matter has not been resolved, written notice is given to the aggrieved party. Formal charges may then be filed with "appropriate agency officials" within 15 days of receipt of thatnotice.44The agency then has 180 days from filing to resolve the complaint. At the end of the 180 day period, the complainant may either request a hearing before an administrative law judge or accept a final agency disposition, if any without further hearings.4

The aggrieved party need not wait for the administrative procedures to run their full course. A civil action in federal district court may be commenced when 180 days have elapsed since the filing of  formal complaint.46 If the agency has made a determination on the formal charge, the aggrieved party may file suit within 90 days of receipt of the "decision letter."47

Alternatively, the agency's final decision or dismissal of the complaint may be appealed to the EEOC within 30 days of receiving the decision le tter.48 There is no set time period limiting the length of appellate review by the EEOC.49 The aggrieved party may file a civil action 180 days from the filing of an appeal with the EEOC or 90 days from receipt of a final appellate decision by the EEOC.50

F.     Protecting Religious Speech and Conduct Under Title VII

An aggrieved employee may support his Title VII accommodation claim with either direct evidence showing improper motivation or indirect evidence showing disparate treatment. In the most common case where direct evidence is available, the aggrieved party first establishes his prima facie case for religious accommodation, thus shifting the burden of proof to the employer. To avoid liability, the employer must then show that the employee's religious beliefs cannot be accommodated without undue hardship to its business. 51

When the claim relies on indirect evidence of disparate treatment, lower courts utilize a burden shifting scheme adapted from racial discrimination analysis in McDonnell Douglas Corp. v. Green.52 If the employer is able to rebut the employee's prima facie case by showing undue hardship or some other defense (e.g., bona fide occupational qualification or business necessity), the plaintiff must show that the reasons given by the employer for failure to accommodate are a pretext for discrimination.53 in a safe and efficient manner by means of a practice which as a lesser discriminatory impact, or (2) the defendant would not have afforded the same treatment to a similarly situated member of a different Title VII class."54

G.    Employee First Establishes the Prima Facie Case

The prima facie case of a religious accommodation claim under Title VII is made by showing that: (a) the plaintiff holds a sincere religious belief that conflicts with an employment requirement; (b) the employer has notice of the conflict; and (c) the plaintiff was discharged, disciplined or subjected to discriminatory treatment for failing to comply with the conflicting employment requirement.55  Although the burden of proof shifts, the burden of persuasion remains the responsibility of the plaintiff.56

H.    Sincerely Held Religious Beliefs

Religion is broadly defined under Title VII as including "all aspects of religious observance and practice, as well as belief."57 The courts and the EEOC have interpreted this provision very liberally.58

Failure to act on a religious belief consistently may be considered evidence that the belief is not sincerely held.59

But the fact that the belief was only recently acquired does not render it an insincere one.60 With regard to sincerity, a plaintiff is not held "to a standard of conduct which would have discounted his beliefs based on the slightest perceived flaw in the consistency of his religious practice."61 If the employee risks termination because of his religious beliefs, then his sincerity is virtually unquestionable. As one court observed, sincerity of religious belief can scarcely be doubted when the "[p]etitioner is willing to jeopardize [his] job in support of that belief." 62

The EEOC defines religious practices as including

moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional views... The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine  whether the belief is a religious belief of the employee.6

In other words, the EEOC test does not require that the employee's religious belief coincide with the tenets of his church: Title VII protects more than the observance of Sabbath or practices specifically mandated by an employee's religion."64

 Specific examples of religion under Title VII include the Black Muslim faith,65 the "old Catholic" religion,66 a' faith in humanity being "67 and atheism.68 But 'religion" has not been so broadly defined as to include membership in the Ku Klux Klan,69 or membership in the United Klans of America,70 or belief in the spiritual power of a particular cat food.71

 Where the asserted religious belief is found to be merely personal preference,  the employee's claim may fail.   In Vetter v.  Farmland Industries,  Inc.,72 the employer required his employees to live within  a specific trade territory. Vetter, a newly hired employee, was directed to move to a city within a trade territory. But Vetter insisted that his religion demanded that he live in a city some 45 miles away because it was nearer to a Jewish synagogue.73  When Vetter made plans to move to the more distant city, he was fired. After hearing evidence that Vetter preferred the schools in the more distant city; that the housing market was better there, and that he would have to drive further to reach a synagogue than he would at the employer's specified location, the jury found for the employer.7

Some authorities imply that the religious belief must be part of at least a minority religion rather than a purely individual belief. 5 But the Supreme Court has held that Title VII prohibits employers from discriminating on the basis of religion "regardless of whether the discrimination is directed against majorities or minorities."76 There is also a weak implication that to be protected by Title VII, an employee's practice must be dictated by the tenets of the employee's faith.77

I.       Employee Informed Employer of Religious Belief

Once it has been demonstrated that the employee's actions are based upon a sincerely held religious belief, the employee must show that the employer was aware of the belief. An employer has sufficient notice of an employee's religious belief if it has enough information about his "religious needs to permit the employer to understand the existence of a conflict between employee's religious practices and the employer's job requirements."78 The employee does not necessarily have to expressly inform the employer, so long as the employer is aware of the beliefs. In a case where a department supervisor occasionally prayed in official meetings and laced his talks on job productivity with scripture, the Eighth Circuit held:

[W]e reject the defendants' argument that because [the employee] never explicitly asked for accommodation for his religious activities, he may not claim the protections of Title VII ... [b]ecause the first reprimand related directly to religious activities by [the employee], we agree with the district court that the defendants were well aware of the potential for conflict between their expectations and [the employee's] religiousactivities.79

In contrast, the Fourth Circuit found inadequate notice when an employee sent letters to co-worker's homes, accusing them of sexual sins and urging them to accept Christianity. Although the employee had often sought converts through conversations at her workplace without provoking a response from her employer, she was discharged after writing the letters. Her Title VII prima facie case failed on the element of notice. In response to her argument that the "notoriety of her religious beliefs within the company" gave adequate notice, the court held that "[k]nowledge that an employee has strong religious beliefs does not (give] notice that she might engage in any religious activity, no matter how unusual."80 Thus while Brown holds that express notification of a sincerely held religious belief may not be necessary, Chalmers suggests that an employee should give more specific notice of religious beliefs if they are out of the mainstream.

Simply put, an employee's claim will be rejected if the employer does not understand the religious beliefs involved.81

J.      Discriminatory Treatment of Employee

Title VII protects employees from religious discrimination based upon belief or practice or observance. This discrimination may manifest itself in several ways including demotion, layoff, transfer, failure to promote,   discharge,   harassment,82   orintimidation.83   "The threat  of discharge (or of other adverse 8Heller, 8 F.3d at 1439. If practices) is sufficient penalty" to establish discrimination against the employee for the prima facie case.84

K.    The Employer Must Reasonably Accommodate the Employee

Once an employee has established a prima facie case of religious discrimination, an employer is required to reasonably accommodate the employee' s religious beliefs unless such accommodation would result in undue hardship to the employer.8 "After an employee or prospective employee notifies the employer or labor organization of his or her need for a religious accommodation, the employer or labor organization has an obligation to reasonably accommodate the individual's religiouspractices."86

Employer neutrality toward an employee's religious beliefs is not enough.87 The courts have not attempted to reach a fundamental definition of the term "reasonable accommodation," but have instead considered the concept to be a "flexible" one requiring a "case-by-case" analysis.88 In general, an employer is required to accommodate an employee's adherence to the principles of his religion unless such accommodation will actually interfere with the operations of the employer. "[ A]n accommodation causes an 'undue hardship' whenever that accommodation results in 'more than a de minimis cost' to the employer."89

Employees are expected to cooperate with the employer in finding an accommodation,90 and an employer does not necessarily have to accommodate an employee's religious practice in the way the employee would prefer. "[W]here the employer has already reasonably accommodated the employee's religious needs,  the statutory inquiry is at an end. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship."91 In University of Detroit,92 the court held that the union's offered accommodation of allowing a professor's dues to be discontinued by the percentage of the union budget used for pro-abortion activities was, as a matter of law, reasonable. The union therefore was not required to accommodate the professor in the way he had requested, which was by allowing him to contribute an amount equal to his union dues to a charity, instead of paying the union.93

On the other hand, an employer violates Title VII if it fails to even attempt an accommodation.94

L.     What Should an Employer Do When Faced with a Discrimination Claim?

All employers should have a written set of procedures for handling discrimination claims. These procedures should be created under the direction of an attorney and made available to all employees. Employers should also require mandatory training for all employees and supervisors on the types of discrimination prohibited. The following is a general checklist of initial steps to take when an employee claims discrimination has occurred:

1.      Contact an attorney who specializes in employment law. No notes or other documentation of the incident should be made until an attorney has been consulted and has advised the employer about the proper documentation of the matter. The employer should then take the following steps under the direction and approval of the employer's attorney.

2.     Two supervisors should interview the employee making the claim and obtain all of the facts and information surrounding the incident. If possible, the supervisors conducting the interview should be individuals who are not implicated in the charge of discrimination.

3.     The claim should be investigated immediately (with a matter of days) by interviewing the parties involved. Any documentation of the investigation should be carefully supervised by an attorn

4.     If the discrimination is ongoing, the employee should be given the option of taking a paid leave of absence during the investigation.

5.     If the claim of discrimination is found to have merit, appropriate action should be taken to eliminate the discrimination immediately. This may include placing the parties on administrative leave until the matter is resolve, and/or disciplining the appropriate parties. The employers should also consider, under the advice of an attorney, what training or policies need to be developed to prohibit future discrimination.

6.     If the claim does not have merit, the extent of the investigation should be carefully documented under an attorney's direction, and the complaining employee should be given the option of bringing the matter to the attention of a more senior supervisor.

VI.  Protections Other than Title VII for Government Employees9

A.     The Federal Constitution

Public employees do not forfeit their constitutional rights upon entering the public workplace.96 The government may to some extent regulate the speech of its employees because of its interest in performing its functions efficiently and effectively.

B.     Unprotected Public Employee Speech:  Matters Related to Job Duties

When public employees speak pursuant to their job duties, they do not receive First Amendment protection. 8The courts vary in their analysis of what constitutes 'job duties" for a public employee.99 It is saft if an employee is speaking because his job requires him to do so, he may be disciplined for that speech.

C.     Protected Public Employee Speech: Matters of "Public Concern"

A public employee receives greater speech protection when speaking "as a citizen upon matters of public concern" than he does when commenting on employment matters of personal or internal interest.100 When evaluating these cases, the Court has traditionally utilized a test that balances the importance of the employee's speech on a matter of public concern against the government ' s need to run an efficient work place. 01 But in at least one case the court implied it may apply stricter scrutiny:  '[C]onditioning   hiring decisions on political belief ...  plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so."102

In Tucker v. State of California Department of Education,103 the Ninth Circuit used Pickering to protect the religious liberty of a state education department employee who believed that he was commanded to "give credit to God for the work he perform[ed]." 104 He engaged in religious discussions, kept religious material around his work area, and began using a religious phrase, "Servant of the Lord Jesus Christ' along with an acronym, "SOTLJC," on his papers and computer programs he wrote.105 The department of education took exception to these practices and broadly proscribed the use of religious names, acronyms, or symbols in the workplace. 106

Tucker argued that the state created a limited public forum by allowing employees to informally discuss public questions in the workplace.107 The court rejected that argument, noting that a limited public forum must be intentionally created by the state, and it also rejected the state's argument that the proscriptions were permissible, given the time, place, and manner of the restrictions.108 Instead, the court utilized the Pickering balancing test.109

Tucker prevailed when the court weighed the state's asserted interests of efficiency, protecting the liberty interests of other employees,  and avoiding Establishment Clause issues against the weight of a " broad ban on group speech."110 The court rejected the employer's efficiency argument, noting that the time spent by Tucker' s supervisor mediating conflicts over Tucker' s practices "affected only the supervisor ...    [and] did not threaten mora1e."111 The liberty interest issue    was dismissed because the state failed its burden of persuasion.  Finally, the Establishment Clause defense failed because "most of the conduct covered by the orders is speech that could in no way cause anyone to believe that the government endorsed [the speech]." 112 The court said that because "there must be a plausible fear' that the speech in question would be attributed to the state,''113 such acts as private conversation of an employee considering baptism or circumcision or an employee writing a relative, urging her to convert, would not carry the "imprimatur of state approval on religious... practices."114

Turning to the question of displaying religious materials in common areas outside the employee's personal working area, the court again rejected the limited public forum argument, 115 holding it to be a non-public forum subject to control that is "reasonable in light of the purposes [of] the forum and ... viewpoint neutral."116 Yet the employer's proscriptions were held to be illegal even at this least rigorous level of review: "[I]t is not reasonable to allow employees to post materials around the office on all sorts of objects, and forbid only the posting of religious information and materials."117 Religious speech was given the same expansive protections offered to secular speech "inviting employees to motorcycle rallies,  swap meets, x-rated movies, beer busts, burlesque shows ... or meetings of the local militia. The prohibition is unreasonable not only because it bans a vast amount of material without legitimate justification but also because its sole target is religious speech." 118

D.     Protected Public Employee Speech:  Private Expression

While ' private religious speech,  far from being a First Amendment orphan,  is as fully protected under the Free Speech Clause as secular private expression,"119 the Eighth Circuit has characterized employee religious speech as being protected by the Free Exercise Clause. 120 The court also determined that the Pickering test is the appropriate analysis when evaluating free exercise of religion claims,  including religious speech.121

Brown held that prohibiting a county employee from engaging in activities that could be considered religious proselytizing, witnessing, or counseling while he was on the job violated his First Amendment rights.

Polk County baldly directed Mr. Brown to "cease any activities that could be considered to be religious proselytizing, witnessing, or counseling." That order exhibited a hostility to religion that our constitution simply prohibits.... If Mr. Brown asked someone to attend his church...    we suppose that[invitation] "could be considered" proselytizing, but its prohibition runs afoul of the free exercise clause. Similarly, a statement ... that one' s religion was important in one's life "could be considered" witnessing, yet for the government to forbid it would be unconstitutional.12

While the government may forbid harassing or intimidating religious speech or activity in the work place, restrictions of this type of religious activity must be "reasonably related" to avoiding harassment and be   'narrowly tailored.'

The First Amendment also protects the right of public employees to keep items with religious messages on them at their desk. In Brown, the employee had a Bible and plaques containing the serenity prayer, the Lord' s Prayer, and one that said "God be in my life and in my commitment" in his office.124 The employer violated the First Amendment when it demanded that these items be removed because they might be considered "offensive to employees."125

The court emphasized that even if employees found Mr. Brown's displays "offensive," Polk County could not legally remove them if their "offensiveness" was based on the content of their message. In that case the county would be taking sides in a religious dispute, which, of course, it cannot do under either the establishment clause or the equal protection clause.126

 The Tucker court echoed this: "[B]anning the posting of all religious materials and information in  all areas of an office building except in employees'  private cubicles simply goes too far."127

While government employees must respect the state's "legit ima te interest in avoiding the appearance of furthering religion and in furthering the efficiency of the workplace," 128 such respect does not preclude the employee's rights to express their religious faith in the workplace.

VII.           Censoring Religious Expression Under the Establishment Clau

The Establishment Clause does not provide the government with any justification for restricting religious expression with co-workers:

The defendants would have us hold that their "interest" in avoiding a claim against them that they have violated the establishment clause allows them to prohibit religious expression altogether in their workplaces. Such a position is too extravagant to maintain, for it gives a dominance to the establishment clause that it does not have and that would allow it to trump the free exercise clause.129

The court emphasized that fear alone, even fear of discrimination or other illegal activity, is not enough to justify such a mobilization of governmental force against an employee. A phobia of religion, for instance,  no matter how real subjectively,  will not do. As Justice Brandeishas said, ...    "Men feared witches and burnt women."130

But the Establishment Clause can justify restricting the religious speech of government employees to non-employees. For instance, in Knight v. Connecticut Department of Public Health, the state did not violate the free exercise rights of a nurse who was evangelizing patients while performing her job duties. Allowing such speech, said the court, may have violated the Establishment Clause.131

Generally, governmental employers may restrict religious activity in the work place only if it prevents the government from running an efficient work place or if there is clear evidence that it intimidates or harasses co-workers. Speculative fears of offense or employee discontent do not provide the government with an excuse for discriminating against religious employees who express their faith to co-workers through words, actions, or symbols

VIII.        There is a Place for Religious Conviction in Business

Many private employers have deeply held religious convictions that influence every part of their lives, including their businesses. The owners of those businesses often seek to adopt corporate guidelines that reflect the morality fostered by the business owner's religious beliefs.

The need for a moral compass in the business world has never been greater. A recent Gallup Poll indicates that only 23% of people surveyed believe that business executives have a  degree of honesty   and ethics, as compared to 79% for nurses, 62% for teachers, and 56% for engineers.13   Excluding the faith beliefs of followers of Jesus from the workplace only contributes to the lack of integrity plaguing many professions in the United States.

However, because of the fear of lawsuits or even adverse publicity, some employers seek to avoid the potential of conflict with employees over religious convictions by eliminating all religious influences from the workplace.

A.    Can Employers Base Business Objectives and Goals Upon Biblical Principles?

Yes, an employer may affirm the faith of its owners in the business' s objectives.133 "Title VII does not, and could not, require individual employers to abandon their religion."134 In fact the U. S. Supreme Court has determined that family held corporations can base policy decisions on the religious convictions of the business' s owners, and that this exercise of religion is protected from interference by federal government officials. 135

B.     What May an Employer Consider When Making Personnel Decisions?

Employers must be careful not to condition employment or advancement with a private, for profit company on acquiescence in the religious beliefs of the employer.

Employers can protect against this perception in a number of ways. For instance, applications for employment should state that applicants are considered for all positions without regard to religion. This statement should also be included in any orientation materials, employee handbooks, or employee evaluation forms.

Equally importantly, employers must be sure that these policy statements accurately reflect the practice of the business so that there is no discrimination on the basis of religion.

Generally, employers should not consider race, color, religion, sex, national origin, ancestry, age, veteran status, marital status, or the presence of a non-job-related disability when making personnel decisions. Some states, cities, and municipalities have added other categories, like sexual orientation and gender identity, to this list.

C.     May Employers Give Employees Religious Literature or Post it in the Workplace?

As with spoken religious speech, employers can share their religious beliefs with their employees,  including in printed form such as pamphlets, books,  andnewsletters.136Employeesmustbecareful,  however, not to give employees the impression that they have to agree with the employer's religious beliefs in order to keep their job or be promoted.

For example, in one case, a Jewish employee was wrongfully terminated for complaining about the printing of Bible verses on his paychecks and the religious content of a company's newsletter. If an employer shares religious convictions with employees, and an employee disagrees or protests, no adverse action can be taken against the empIoyee.137

Furthermore, an employer should be ready to accommodate any employee's objections to the religious speech contained in publications distributed to employees. Sufficient accommodation may be to provide the objecting employee with a publication that does not contain the religious content. If an accommodation is requested regarding posting of religious materials, employers should attempt to post the materials in a place that can be avoided by the employee. However, the employer is not required to make an accommodation that would hinder its right to base legally permissible business goals and objectives on religious principles. In order to counter an impression given by publications that job security and advancement are contingent upon faith, publications with religious material should state that the employer does not discriminate on the basis of religion for the purposes of continued employment, promotion, or employee benefits.

D.     Can a Business Owner Witness to Her Employees?

Employers can talk about their religious beliefs with employees as long as employees know that continued employment or advancement within the company is not conditioned upon acceptance of or aquiesence to he employer's religious beliefs. For instance, one court held at an employer did not d1scnmmate against an employee by sharing the Gospel with him and by inviting him to church.

 Another court held that owners of a company are free to share their faith with their employees, as long as they did not do so at meetings where attendance is mandatory.139 Thus, employers must be careful not to require employees to listen to unwanted witnessing or to persist in witnessing if the employee objects. Such unwanted proselytizing could be deemed religious harassment. Employers cannot impose their religious beliefs on employees.1  0

E.     Can a Business Employer Hold Regular Prayer Meetings or Chapel Services for Employees?

Employers can hold regular devotionals like prayer meetings or chapel services for employees so long as attendance is not required .141 Moreover active participation of management personnel in these meetings is permitted. 142 To ensure that employees understand that devotional meetings are voluntary, notice of the meetings should state that they are not mandatory and it is wise to hold these meetings before the work day begins, during breaks, or after work.

F.     Can an Employer Require Employees to Attend Training Based on Biblical Principles?

Employers can use training programs that are based on the Bible. For example, requiring an employee to attend a management seminar put on by the Institute of Basic Life Principles, which used Scriptural passages to support the lessons it sought to promote, did not violate a Massachusetts civil rights law.143 However, employees cannot be required to undergo religious training, participate in religious services, or engage in behavior that would violate their sincerely held religious beliefs.

G.    Should an Employer Consider Sexual Orientation or Gender Identity in Making Personnel Decisions

In many cases, an employee's sexual orientation or gender identity is irrelevant regarding a job. However, a company's particular values or mission, or the nature of a particular type of job, may make one's sexual orientation or gender identity an important factor to consider. However, the enactment of several laws across the country purport to make an employer's consideration of sexual orientation or gender identity illegal. Although there is no federal law prohibiting sexual orientation or gender identity discrimination, at least twenty-one states and the District of Columbia have made it illegal for private employers to discriminate based on sexual orientation and/or gender identity. 144

If your business is in any of these states, you may be prohibited from discriminating based on sexual orientation and/or gender identity.

Hundreds of cities and counties across the country have also enacted similar restrictions on private employers. Employers should check with all municipalities where they have offices to determine if there is a prohibition on discrimination based on sexual orientation or gender identity by private employers. 145

Some of these state statutes and municipal ordinances do have exemptions for religious organizations, while many others do not, and they may define religious organizations in different ways.

H.    Do Employers Have to Provide Benefits for Same-sex Marriages?

There is no clear, universal answer to this question, and the laws is changing rapidly in this area. Whether your company is required to provide benefits to same-sex "spouses" of employees will depend on several factors such as whether the company is self-insured, if the benefit is federally required, and whether required by state law. Business owners should consult with an attorney on these issues.

I.       Do Employers Have to Provide Employees With Health Insurance That Covers Medication and Procedures that the Employer Finds Objectionable?

 Possibly not, depending on what coverage the employer objects to and what government is requiring it. The Supreme Court has determined that religious people who own closely held businesses cannot be forced by the federal Affordable Care Act (Obamacare) to cover contraceptive and abortifacient drugs, devices, and counseling. The Supreme Court found that the families that own these businesses are protected by the federal RFRA.146 There are also federal laws prohibiting certain state law insurance mandates for activities like abortion or doctor-assisted suicide drugs, though some states are attempting to challenge those protections.147

But employers might not have as much religious liberty protection from federal mandates of items not encompassed by these laws of the Supreme Court decisions, or from state law mandates of birth control coverage. Those matters might require additional litigation and could vary based on different state religious freedom laws. If an employer is uncertain whether the government is violating religious freedom by coercing it to provide health coverage for morally objectionable items, it should contact an attorney

J.      Can an Employer Regulate Employee Speech and the Literature Displayed on an Employee's Desk, or in an Employee's Office?

Employers are permitted to control the image presented to the public by their business.148 There is no right to free speech for private employees because the First Amendment to the United States Constitution only applies to governmental entities.149 Accordingly, the employer can determine which literature can be displayed at desks and in offices that are frequented by customers and other members of the public. For example, a private employer can prohibit an employee from displaying a picture of a burning United States Flag because it would reflect poorly on the business. Employers can also prohibit employees from saying things to customers that actually hurt business.150

Employers also can restrict the posting of material that will affect the efficiency of the office. Title VII has been found to protect an employee's religious belief that she must wear a picture of an unborn child at all times, even at work, but the employer could require her to keep the button covered because it was causing disrupt with other employees.151Signs disparaging co-workers or management do not have to be permitted. Furthermore,  Literature that constitutes sexual harassment such as pornography152 or  religious harassment (e.g., a sign saying Jews are  "Christ Killers"153  can and should e prohibited. For example, an employer's dismissal of an argumentative atheist employee who proselytized on the job and switched off religious music at a Christmas party in favor of secular music did not violate Minnesota's version of Title VII.   The court found that the case involved "aggressively offensive behavior exhibited by an outspoken advocate of atheism wholly intolerant of those foolish enough to admit to other views on the existence of a Deity. He was, indeed an argumentativeproselytizingpolemicist."154 Thus, the court determined that he was not discriminated against because of his religious beliefs, but because of "[his] offensive conduct in the office and in the field, his expressed attitude toward other workers, and his unproductive job performance."1 55

Of course, an employer must attempt to accommodate an employee's request to display items in their work space pursuant to their religious beliefs. Employees should be allowed to display religious items and speak about their religious faith at work as long as there is "no actual imposition on co-workers or disruption of the work routine."

K.    Can an Employer Regulate the Music an Employee Listens to at Work?

 Like the display of literature, an employer can regulate music that affects the image the company is attempting to display to the public.157 An upscale retail clothing establishment targeting women in their fifties and sixties does not have to allow the store manager to play alternative rock and roll or rap. Moreover, music that is disruptive to the work environment can also be restricted, even if the public will not be exposed to it.158 Employers have no obligation to allow their employees to listen to music on the job.159 However if music is allowed, an employer cannot prohibit an employee from listening to religious music if that employee has a sincerely held religious belief to do so, and it is not disruptive.

L.     Can an Employer Regulate Employee Grooming and Clothing Worn at Work?

 Yes. For instance, an employer does not discriminate against an employee by requiring him to shave his long facial hair and refrain from wearing a turban, if both of these religious practices result in safety hazards by preventing a hardhat and respirator from being worn properly.160

However, employers must accommodate religious beliefs requiring an employee to dress or groom in a certain manner, unless the rule prohibiting dressing that way is justified by a business necessity or undue hardship. The EEOC has ruled that a nurse whose Old Catholic faith require her to wear a scarf was unlawfully discharged for refusing to come to work without the scarf, because requiring the nurse to wear a cap instead of the scarf was "Not so necessary to the operation of [the employer's] business as to justify the effect that this policy has upon the religious convictions

M.   Are Non-Profit Organizations Treated Differently Than Secular Business Employers?

As one would expect, religious groups are constitutionally entitled to make decisions, employment and otherwise, on the basis of religion. The federal government's Title VII rule does not prohibit "religious corporation[s]" from discriminating in hiring on the basis of religion.162 Under federal law, an employer qualifies for this exemption if it "is established primarily or exclusively to perform religious activities."163 This definition is sometimes thought to apply only to nonprofit organizations. Court cases have not resolved that issue completely, but ordinary businesses probably do not fall within the definition.164

Many states with anti-discrimination statutes also provide an exemption from religious anti­ discrimination laws for religious organizations. However, others, e.g., Michigan and West Virginia, do not. Likewise, local governments like cities and counties may also have discrimination laws to which religious organizations may be subject.

N.     Are All Employers Subject to Anti-Discrimination Laws?

 

Yes, generally. Under federal law, the general rule is employers that employ fifteen or more employees are prohibited from discriminating on the basis of race, color, sex, national    origin, and

religion by federal law.165 Many states and local governments have lowered this number so that even   very   small   businesses are  restricted by state anti-discrimination laws.  States and municipalities may also have expanded the prohibition on discrimination to include other categories, such as sexual orientation and/or gender identity.

IX. Religious Behavior or Beliefs Not Protected by Title VII

When a Title VII religious discrimination claim fails, it is often because the employer is able to show the employee was fired for inefficiency or bad work product rather than the asserted religious practice. A frequent example is when an employee's religious speech is so confrontational that it inhibits cooperation with other employees. In Minnesota Department of Highways v. Minnesota Department of Human Rights, 241 N.W.2d 310 (Minn. 1976), the Minnesota Supreme Court held that a state employer did not violate Minnesota's version of Title VII when it dismissed a argumentative atheist employee who proselytized on the job and switched off religious music at a Christmas party in favor of secular music. The court found that the case involved "aggressively offensive behavior exhibited by an outspoken advocate of atheism wholly intolerant of those foolish enough to admit to other views on the existence of a Deity. He was, indeed an argumentative, proselytizing polemicist." Id. at 313. Thus, the court determined that he was not discriminated against because of his religious beliefs, but because of "his offensive conduct in the office and in the field, his expressed attitude toward other workers, and his unproductive job performance." Id.

Similarly, in Universal Services, 360 F. Supp. 441, the court dismissed the complaint of a Pentecostal Church member after he was discharged from employment on an oil rig. The plaintiff claimed he was fired because he sang religious hymns, preached, and prophesied of disasters and the deaths of co-workers while he was working. Id. at 444.  However, the plaintiffs supervisor "had warned him that his preaching and singing were affecting the men on the rig and told him to stop." Id. The facts also indicated that the plaintiff, who had a history of quitting employment, walked off the job and was not performing his tasks properly. Id. at 445. The court ruled that this was the reason the plaintiff was fired, not his religious speech.  Id. at 447.

In Cary v. Anheuser-Busch, Inc., 741 F. Supp. 1219 (E.D. Va. 1988), the court ruled that coercing an employee into seeking medical or psychological assistance because of religious beliefs is generally a violation of Title VII, but not when a co-worker complained that he felt threatened by the employee's religious remarks. In that case, the plaintiff believed God told him God was taking the plaintiff "to the other side" and that he could "take two people with him." Id. at 1220. The plaintiff proceeded to inform a co-worker of this revelation and he told the co-worker that he would be one of the two people. Id. The court found that the employee was discriminated against because of the possible danger he posed to other employees, not because of his religion. Id. at 1221-22; see also Peterson v. Hewlett-Packa.rd Co., 358 F.3d 599, 607 (9th Cir. 2004) ("[A]n employer need not accommodate an employee's religious beliefs if doing so would result in discrimination against his co-workers or deprive them of contractual or other statutory rights."); id. at 607-08 (finding no accommodation required for religious employee's posting of religious messages opposing homosexual behavior in his office that were intended to demean and harass co­ workers).

Finally, religious beliefs that conflict with another law may not be protected by Title VII. For instance, an employer was not required to accommodate a job applicant's religiously based refusal to provide a Social Security number because it was necessary to comply with IRS and INS requirements.  Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830-31 (9th Cir. 1999)

X.     Defenses to the Duty to Accommodate or Assertions of Pretext

A.     Undue Hardship

 Most courts require that the employer demonstrate attempted accommodation before it claims undue hardship as a defense. See, e.g., Redmond, 574 F.2d at 901-02; Shaffeld v. Northrop Worldwide Aircraft Serv., Inc., 373 F. Supp. 937, 944 (M.D. Ala. 1974). The "undue hardship" standard is "used to measure an employer's duty to accommodate to an employee's religious observances in a disparate treatment claim of religious discrimination." Baz v. Walters, 782 F.2d 701, 706 (7th Cir. 1986).

The employer has the burden of proving undue hardship,166 and evidence of undue hardship must be more speculative. Pyro Mining, 827 F.2d at 1085-86; see also Haring, 471 F. Supp. at 1182 ("'undue hardship' must mean present undue hardship, as distinguished from anticipated or multiplied hardship."). For example, undue hardship requires more than proof that other employees would grumble or be unhappy about a particular accommodation. Anderson v. Gen. Dynamics Convair Aerospace Div.  589 F.2d397, 402 (9th Cir. 1978).167Asthe Sixth Circuit aptly summarized:

[A]n employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operative routine. In addition, we are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that never has been put into practice.  The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.

Pyro Mining, 827 F.2d at 1085-86 (quoting Draper v. US. Pipe & Foundry Co., 527 F.2d 515,520 (6th Cir. 1975)).

More recently, when an employer claimed undue hardship and raised the specter of preferred treatment of Christians and "polarization" between Christian and non-Christian employees caused by a supervisor's spontaneous prayers, affirmations of Christianity, and biblical allusions, the court responded:

[T]he defendants' examples of the burden that they would have to bear by tolerating trifling instances such as those complained of are insufficiently "real," and too "hypothetical," to  satisfy the standard required to show undue hardship. The defendants showed no "actual imposition on co-workers or disruption of the work routine" generated by occasional spontaneous prayers and isolated references to Christian belief.

In contrast, an employer successfully demonstrated undue hardship in Ali v.  Southeast Neighborhood House, 519 F. Supp. 489, 497 (D.D.C. 1981). In that case, anemployee was properly discharged when his professed religious objective of promoting world harmony rendered him powerless and incompetent by getting in the way of his day-to-day job duties and requiring him to alter the established policies of the organization.

Undue hardship was also found in Baz, 782 F.2d 701, where a chaplain at a Veteran's Administration hospital was discharged for evangelizing on the job. The plaintiff established a prima facie case by demonstrating (1) his actions furthering his perceived role as a chaplain to be an active, evangelistic, charismatic preacher were "religious" within the meaning of the statute, and (2) that the primary reason for his discharge was "his view of his ministry and his call to preach the Gospel." Id. at 706 (internal quotation marks omitted). But the court ruled that accommodating the plaintiffs view of his role as chaplain would work an undue hardship on the employer, which viewed its chaplains as quiescent, passive listeners and cautious counselors that were not to proselytize to a captive audience of psychiatric patients.  Id. at 706-707.

Moreover, an employer is not required to accommodate a particular religious belief if it would require more than a de minimis cost. See Hardison, 432 U.S. at 84 (having to adjust a seniority policy in violation of a collective bargaining agreement and pay overtime to replace an employee who wants off on Saturdays to observe his Sabbath is more than a de minimis cost and would result in undue hardship to employer); Id. at 83 n.14 ("Title VII does not require an employer ... to deprive senior employees of their seniority rights in order to accommodate a junior employee's religious practices."); Cooper, 15 F.3d at 1380 (finding accommodation of employee's request for Saturdays off to observe the Sabbath was not required when it forced the employer to hire an additional worker).

More recently, when an employer claimed undue hardship and raised the specter of preferred treatment of Christians and "polarization" between Christian and non-Christian employees caused by a supervisor's spontaneous prayers, affirmations of Christianity, and biblical allusions, the court responded:  

[T]he defendants' examples of the burden that they would have to bear by tolerating trifling instances such as those complained of are insufficiently "real," and too "hypothetical," to satisfy the standard required to show undue hardship. The defendants showed no "actual imposition on co-workers or disruption of the work routine" generated by occasional

In contrast, an employer successfully demonstrated undue hardship in Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 497 (D.D.C. 1981). In that case, an employee was properly discharged when his professed religious objective of promoting world harmony rendered him powerless and incompetent by getting in the way of his day-to-day job duties and requiring him to alter the established policies of the organization.

Undue hardship was also found in Baz, 782 F.2d 701, where a chaplain at a Veteran's Administration hospital was discharged for evangelizing on the job. The plaintiff established a prima facie case by demonstrating (1) his actions furthering his perceived role as a chaplain to be an active, evangelistic, charismatic preacher were "religious" within the meaning of the statute, and (2) that the primary reason for his discharge was "his view of his ministry and his call to preach the Gospel." Id. at 706 (internal quotation marks omitted). But the court ruled that accommodating the plaintiffs view of his role as chaplain would work an undue hardship on the employer, which viewed its chaplains as quiescent, passive listeners and cautious counselors that were not to proselytize to a captive audience of psychiatric patients. Id. at 706-707.

Moreover, an employer is not required to accommodate a particular religious belief if it would require more than a de minimis cost. See Hardison, 432 U.S. at 84 (having to adjust a seniority policy in violation of a collective bargaining agreement and pay overtime to replace an employee who wants off on Saturdays to observe his Sabbath is more than a de minimis cost and would result in undue hardship to employer); Id. at 83 n.14 ("Title VII does not require an employer ... to deprive senior employees of their seniority rights in order to accommodate a junior employee's religious practices."); Cooper, 15 F.3d at 1380 (finding accommodation of employee's request for Saturdays off to observe the Sabbath was not required when it forced the employer to hire an additional worker).

But infrequent pay of overtime wages for occasional religious observance is not more than de minimis if the employer frequently pays employees overtime. See Burns, 589 F.2d at 407 (excusing employee from paying $19 in union dues was de minimis); EEOC v. Sw. Bell Tel. LP, 2007 WL 2891379, at *4 (E.D. Ark. Oct. 3, 2007) (paying employees $440 to cover for accommodation of religious employees was not more than de minimis).  

Employers may also consider public safety when establishing undue hardship. For instance, substituting an untrained employee for a highly trained lineman to work on high-voltage power lines would have resulted in undue hardship. Dixon v. Omaha Pub. PowerDist., 385 F. Supp. 1382, 1386 (D. Neb. 1974); see also City of Albuquerque, 545 F.2d at 114-15 (accommodating firemen's Sabbath would have required other firefighters to work 38 hour shifts.)

Finally, some courts have reconsidered public perception when evaluating undue hardship. In EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, 90-91 (N.D. Ga. 1981), a restaurant's "no beard" policy did not result in religious discrimination against a Sikh Muslim whose religion prohibited him from shaving his beard. In arriving at this conclusion, the court considered "[a]dverse customer reaction in this market to beards [which] arises from a simple aversion to, or discomfort in dealing with, bearded people."   Id.  at89.   The First Circuit came to a similar conclusion in Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 135 (1st Cir. 2004), with regard to facial piercing.168 Thus, undue hardship may arise if the employer can show it may adversely affect business.

B.     Business Necessity

In cases where an otherwise neutral work rule has a disparate impact on the religious beliefs of a particular employee (e.g., dress codes), some courts have used the "business necessity" test to determine if an employer is justified in enforcing the work rule. This test balances an employer's duty to make reasonable accommodation of an employee's belief against any hardship such accommodation will cause the employer. As the degree of business hardship increases,  the quantity of conduct which will satisfy the reasonable accommodation requirement decreases, eventually resulting in a "business necessity" that qualifies as a legitimate reason for discriminating against an employee. Claughbaugh v. Pac. Nw. Bell Tel. Co., 355 F. Supp. 1, 6 (D. Or. 1973). But there was no business necessity for a hospital's requirement that nurses wear a certain head covering instead of a white scarf as was required by an employee's religion. EEOC Decision No. 71-779, 3 Fair Empl. Prac. Cas. (BNA) 172 (1970).

C.    Bona Fide Occupational Qualification

 An employer need not accommodate an employee's religious beliefs if the absence of the beliefs is a bona fide occupational qualification ("BFOQ"). One court held that requiring pilots who fly into Mecca to be of the Islamic religion was a BFOQ where non-Moslims caught flying into Mecca would be beheaded.  Kern v. Dynalectron Corp., 577 F. Supp. 1196, 1200-01 (N.D. Tex. 1983).169

D.     Religious Speech by the Employer Under Title VII

In the past, Title VII has effectively required employers and those in supervisory capacities to cease any religious speech in the work place.17 Courts reasoned that if employers communicated their religious beliefs to employees, the employee's own beliefs would be suppressed due to the perception that continued employment or advancement depended on acquiescence in the employer's beliefs. Recently, however, several cases have indicated that the "unwritten" restrictions on employer religious speech have been relaxed.

In Brown v. Polk County, 61 F.3d at 652, a county supervisor with over 50 employees allowed employees to pray in meetings during working hours and would affirm his own faith by referring to Bible passages related to slothfulness and "work ethics." He was reprimanded and directed to immediately "cease any activities that could be considered to be religious proselytizing, witnessing, or counseling and ...  insure a work environment that is free of the types of activities ... described."   Id. at 653.  He was later fired. Id.

Sitting en banc, the Eight Circuit held that the county defendants were liable under Title VII for reprimanding and firing Brown for his spontaneous prayers and references to his Christian belief. The court rejected the employer's argument that Brown's affirmations of Christianity created the "perception that Mr. Brown 'might favor those with similar beliefs' in making personnel decisions." Id. at 656.  Because there were no actual complaints that Brown showed favoritism, the court deemed this concern to be mere speculation as "defendants showed no 'actual imposition on co-workers or disruption of the work routine."'  Id. at 657.

Other cases also permitted an employer or supervisor to speak about religion. See Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351, 362-63 (Or. 1995) (finding evangelical Christian employer did not violate state law prohibiting employers from "making religious advances" by witnessing to his employee and inviting him to church); Taylor v. Nat'! Grp. of Cos., Inc., 729 F. Supp. 575, 577 (N.D. Ohio 1989) (finding employer's gift of a book endorsing secular humanism to new employees on their first day of work did not rise to the level of religious discrimination against a Christian employee). Furthermore, political comments by supervisors do not result in religious harassment even if they may have religious significance. See Reichman v. Bureau of Affirmative Action, 536 F. Supp. 1149, 1176 (M.D. Pa. 1982) (holding supervisor's unfavorable comments to Jewish employee regarding Israeli prime minister and political position in the Arab­ Israeli conflict did not constitute prohibited religious harassment).

Despite this progress in the area of employer religious speech, employers still should be aware of cases like Brown Transport Corp. v. Human Relations Commission, 578 A.2d 545, 555-558 (Pa. Commw. Ct. 1990), where a Jewish employee was wrongfully terminated for complaining about the printing of Bible verses on his paychecks and the religious content of a company newsletter. It is also well settled that employers cannot require employees to participate in religious meetings. Young v. Sw. Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir. 1975).17

Thus, employers or supervisors may voice their opinions on religious matters. But they must be careful to avoid giving employees the impression that advancement or continued employment is dependent upon acquiescence to the employer's religious beliefs.

XI.  How does the Obergefell Gay Marriage Decision Change the Rules?

 On June 26, 2015, the United States Supreme Court ordered redefinition of marriage in all 50 states.

 The Constitution is silent on the issue of marriage. And that means that the power to define marriage is reserved to the States and to the people.

 And 31 states, including Colorado, had done just that over the years. In 2006, nearly 800,000 Coloradans voted to affirm the historic definition of marriage as the union of one man and one woman.

 And just a few years before in the Windsor case that struck down the federal Defense of Marriage Act that marriage, Justice Anthony Kennedy wrote that marriage had always been a matter of definition by the States rather than the federal government.

But, on June 26, 2015, this same Justice Kennedy, writing for the five to four majority, ordered that States could not have laws that define marriage as only between a man and a woman.

Here are some of the things Justice Kennedy wrote for the 5 justice majority in Obergefell

Our Founding Fathers "did not presume to know the extent of freedom in all of its dimensions" and so the Supreme Court has been entrusted to define "liberty as we learn its meaning."

The right to marry is a fundamental right protected by the Constitution. It is "central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."

"[P]rotecting the right to marry is [important because] it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education."

"[T]here is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex marriage."

This prompted Chief Justice Roberts to say in a stirring dissent, "[Just] "who do we think we are?"

Justice Scalia raised the specter that this decision marked the end of democracy as we know it. Justice Alito warned that radical homosexual forces that wish to smash all dissent from their

LGBTQ orthodoxy will do all they can to use the Supreme Court's decision to marginalize and persecute those who believe in Biblical teaching.

And yet, in his majority opinion, Justice Kennedy gave lip service to our First Amendment religious liberty protections. He said:

[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

In response to that, Chief Justice Roberts, wrote, "Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today." The obvious problem with what Justice Kennedy wrote, said Chief Justice Roberts, is that "the majority graciously suggests  that religious believers may continue to 'advocate' and 'teach' their views of marriage. The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses."

Within an hour of the June 26, 2015 Supreme Court decision imposing same-sex "marriage" on every State in the Nation and requiring each State to recognize the same-sex marriages of other States, our Nation's White House was bathed in the rainbow colors of the homosexual movement.

Just four days after the Supreme Court's decision, James Obergefell, one of the plaintiffs in the case, was part of an LGBTQ press conference in which it was announced that the Supreme Court victory for the homosexual agenda was not enough. It did not go far enough.

Advocates of these progressive causes tell us we must get on their side of history.

Hillary Clinton, a presidential candidate, has said, "Religious beliefs . . . have to be changed" when they are contrary to abortion rights.

Chai Feldblum, EEOC Chair, has said, "There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win."

Martha Minow, Harvard Law School Dean, has said, "For some issues where the values of this country conflict with religious view, if they can't live with it, they should leave."

And, joining the chorus of these progressive thinkers, on October 29, 2015, the same Justice Anthony Kennedy who wrote the majority decision in the Obergefell decision, told a Harvard law School audience that government employees with religious convictions about marriage should resign

He said that if a public official has a moral objection to homosexuality or to abortion, she must either follow the law or quit public service. Stunning his audience, he added, after all, "some judges did the right thing and resigned under Hitler's Third Reich. Christians are bound to follow the law even if it is morally corrupt."

Kennedy's view would come as a shock to Dieitrich Bonhoeffer and others who resisted Hitler and were martyred. Francis Schaeffer would say even louder what he said more than thirty years ago that: "[A]ny government that commands what contradicts God's Law abrogates its authority. It is no longer our proper legal government,  and at that point we have the right,  and the duty, to disobey it." 172

Of all the threats the people of our Nation - and in fact the world - face today, none is greater than the threat to religious freedom.

"The majority's decision [in the gay marriage case]," wrote Justice Thomas, "threatens the religious liberty our Nation has long sought to protect."

Justice Alito added, "I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools."

Religious freedom and rights of conscience mean nothing to these powerful people. They seek to restrict religious freedom and to force Christians to violate their most deeply held beliefs by requiring them to take action or communicate messages that are in direct conflict with their beliefs and, worse yet, to remain silent.

What progressive thinkers, including President Obama, say is that we have the freedom to worship. What they mean by this is that we can exercise our religious freedom within the walls of our churches or in our homes for a few hours a week, but we cannot dare bring our religious convictions into our lives, our businesses, or, God forbid, into the public square.

And, with the coercive support of federal and state governments - led by activist judges - people of faith who seek to exercise their religious freedom are being punished over and over again. More is to come.

XII.            Punished for Declining to support the LGBTQ Movement

Lakewood baker Jack Phillips was asked to create a wedding cake for a same-sex marriage that had been performed in Massachusetts. At that time, Colorado's constitution provided that the only lawful marriage in the State of Colorado was the union of one man and one woman.

Even though Jack Phillips offered to bake the two men any other bakery product they wanted, they left and filed a complaint with the Colorado Civil Rights Commission. After a brief hearing, the Colorado Civil Rights Commission found Jack guilty of discrimination and ordered him and his staff to undergo diversity training so he could be re-educated on the values of the LGBTQ movement.

One member of the Colorado Civil Rights Commission actually called "freedom of religion" a "despicable piece of rhetoric" and compared Jack's religious beliefs to those of slave owners and Nazi perpetrators of the Holocaust.

Jack's bakery business has suffered financially. He needs our support and our prayers

In Oregon, Melissa Klein, who owned a bakery called Sweet Cakes by Melissa, has been driven out of business for declining, on the basis of their Christian faith, to create a cake for a same-sex wedding. An administrative law judge ordered the Kleins to pay $135,000 for violating a 2007 Oregon law protecting the rights of gays, lesbians, bisexual and transgender people in employment, housing and public accommodations. The law provides an exemption for religious organizations but does not allow private businesses to discriminate based on sexual orientation.

After a GoFundMe account was set up to help the Kleins pay the fine and other costs, GoFundMe shut the account down. Samaritan's Purse leader Franklin Graham stepped in to help the Kleins raise money.

In the State of Washington, Baronelle Stutzman, the long-time owner of Arlene's Flowers and a devout follower of Jesus, was sued by the Washington Attorney General and the ACLU for declining to create a floral display for a same-sex wedding. Baronelle faces financial ruin because she refuses to compromise her faith beliefs.

Kelvin Cochran, one of the most distinguished fire fighters in America, was appointed by President Obama to the position of U.S. Fire Administrator. Then, at the urging of Atlanta's mayor, he returned to Atlanta, GA to serve as fire chief where he served with excellence until January of this year. Kelvin is a deacon in his church and has a heart for ministering to men. In his private time, he wrote a book discussing how men can only fulfill their mission as husbands and fathers through Christ. The book addressed morality generally and had a few brief sentences about biblical sexual morality.

The Atlanta mayor suspended him, ordered him to undergo sensitivity training, and, though he had not discriminated against anyone, then fired him.

XIII.       Pro-Life Believers are Coerced into Supporting Abortion

Abortion is an affront to God's authority as Creator, an assault on God's work in creation, and an attack on God's relationship with the unborn.

Across the world today, the holocaust of abortion is overwhelming us. 115,000 abortions are committed every single day. Forty-two million unborn children are massacred every single year.

Obamacare forces Christian colleges, hospitals and businesses to provide health care benefits that conflict with their convictions. The Affordable Care Act's HHS contraceptive mandate, as well as state contraception and abortion mandates, force religious non-profits and religiously motivated for-profits to fund elective abortions and abortion-inducing drugs and devices and contraceptives, all against their religious beliefs.

The HHS contraceptive mandate requires group health plans to give beneficiaries free access to all U.S. Food and Drug Administration (FDA)-approved contraceptives, abortifacient drugs, sterilization, and related counseling. Failure to do so can result in monumental fines of $36,500 per beneficiary per year.

The federal government eventually created an exemption for "religious employers," but defined such employers so narrowly that it essentially covers only churches and their integrated auxiliaries. This exemption does not extend to religious non-profits like charitable organizations, hospitals, and schools (nor to closely held for-profit religious employers).

This unprecedented attack on religious liberty has been met with over 100 lawsuits against the HHS contraceptive mandate by churches, religious non-profits, and closely held for-profit religious employers. Among them in Colorado are:

•         Colorado Christian University

•         Fellowship of Catholic University Students

•         Cherry Creek Mortgage Co., Inc.

XIV.       Challenges to non-profit tax status of religious organizations.

 No challenge looms large than the possibility of religious organizations losing federal or state nonprofit tax status. In 1983, the Supreme Court upheld the IRS's decision to revoke Bob Jones University's nonprofit tax status because the school's ban on interracial dating conflicted with an established public policy against race-based discrimination.

During the oral arguments before the Supreme Court in the Obergefell gay marriage case,  the U.S. Solicitor General admitted that, if the Court found a constitutional right to same-sex marriage, the question of nonprofit tax status for religious groups that oppose same-sex marriage was "certainly going to be an issue." Two days later, The New York Times religion columnist, writing in Time Magazine, called for an end to tax exemptions for religious institutions that disagree with the new public policy resulting from the Obergefell decision.

XV.           Hosanna-Tabor and Protection for Religious Institutions

 In Hosanna-Tabor Evangelical v. EEOC, 132 S.Ct. 694 (2012), the Supreme Court reaffirmed America's strong and long-standing commitment to the First Amendment principle that religious institutions have the right to select their own leaders, free from government scrutiny.

Nevertheless, the employment decisions of religious employers are subjected to review under local anti-discrimination ordinances,  state civil rights laws, and federal laws.  Even though  the federal employment non-discrimination law, Title VII, does not list sexual orientation or gender identity protected classes (and Congress has repeatedly rejected legislation that would extend Title VII to cover sexual orientation), homosexual and transgender persons have recovered damages under Title VII when they have proven that they suffered an adverse employment action because they do not conform to traditional notions of what is appropriate for their biological sex.

XVI.        Title IX Compliance

 Like Title VII, the text of Title IX only covers sex discrimination. But the Department of Education and the Department of Justice have interpreted Title IX to cover discrimination based on "gender identity," including students and employees who identify as transgender or who otherwise do not conform with traditional gender stereotypes.

 As a result, the federal government holds that Title IX requires schools to grant transgender students access to restrooms, locker rooms, and overnight facilities that match their subjective gender identity.

Public schools throughout the Nation are being required to allow students to use restrooms and locker room facilities that correspond to their gender identity at the moment.

XVII.    Threats to Military and College Chaplains

Military chaplains are called to provide for every service member, regardless of who they are or their faith background. But the Obama Administration seeks to prevent chaplains from sharing the full tenets of their faith. As a consequence, the spiritual support, health, and well-being of all service members suffer.

In one case, a chaplain was approached by a homosexual service member who was seeking counseling. The chaplain agreed to counsel but clarified that his counsel comes from a Biblical perspective. He offered to find someone else who could provide counseling from a different perspective, if the service member preferred. The service member made clear that he was comfortable receiving counseling from this chaplain. They ended the counseling session on good terms. A few weeks later, the chaplain was informed that the service member filed a complaint against him, which reached very high levels of command. After months of anxiety, the command finally dismissed the complaint.

In another case, being handled by the Liberty Institute, a Navy chaplain was told by a base commander to refrain from offering a prayer in the name of Jesus. Chaplain Wes Modder is a decorated military hero with an exemplary nineteen-year service record. In 2014, Chaplain Modder was assigned to the Naval Nuclear Power Training Command where he provided support, counsel and spiritual encouragement to his fellow sailors. Just weeks after receiving the highest possible rating from his commander, a few sailors complained that they disagreed with the Biblical views Chaplain Modder expressed during counseling session, even though the views were in line with the teachings of his faith. Despite laws, military regulations, and even court cases that protect chaplains when they discuss religious matters, the Navy has responded by removing Chaplain Modder from his unit and isolating him at the base chapel, cutting him off from his sailors and forbidding him to minister to their spiritual needs.

Finally, on September 3, 2015, the Department of the Navy ruled in Chaplain Modder's favor. College chaplains are also under attack.  An organization called the Freedom from Religion Foundation has filed complaints with several public universities claiming that having football team chaplains is unconstitutional.

 Alliance Defending Freedom has sent letters to, among others, 15 universities defending the right of public universities to make chaplains available to student athletes who want them. Public universities have great leeway in accommodating the religious needs of their students.

XVIII. How Do Followers of Jesus Respond?

These stories are evidence that we have long been moving away from God's truth to a culture when everyone does what is right in his own eyes (Judges 21:25).

Americans should not have to sacrifice their religious freedom, but that freedom is under assault - legally and otherwise - as never before. If we fail to take a stand, the God-given freedom that millions came to this land to find and that countless of our brothers and sisters have fought and died for will be just a fleeting memory.

Francis Schaeffer said, "We as Bible-believing evangelical Christians are locked in a battle. This is not a friendly gentleman's discussion. It is a life and death conflict between the spiritual hosts of wickedness and those who claim the name of Christ."

Samuel Adams said: "Let us remember that if we suffer tamely a lawless attack on our liberty, we encourage it, and involve others in our doom. It is a very serious consideration, which should deeply impress our minds, that millions yet unborn may be the miserable sharers of this event."

The Gospel of Christ is not a call to cultural compromise in the face of fear. It is arena language -  go, do, act, be, and speak.

May it be said of us that we did go, we did do, we did act, and we did speak and we spoke clearly with the Gospel to the most pressing issues of our day.

FOOTNOTES

1 West Virginia State Bd of Ed v. Barnette, 319 U.S. 624 (1943) (holding a statute requiring recitationofthepledge ofallegiance unconstitutional).

2494 U.S. 872 (1990).

3374 U.S. 398, 404(1963).

 4 42 U.S.C. § 2000bb-1.

542 U.S.C. § 2000bb-l(a), (b).

6521 U.S. 507 (1997).

7Brown, 61 F.3d at 653.

8 See Ray v. Nimmo, 704 F.2d 1480, 1485 (I Ith Cir. 1983) (holding constitutional due process claim that federal employer failed to follow "promotion" rules was distinct from employment discrimination claim and was not pre-empted by Title VII); Ethnic Emps. of the Library of Cong. v. Boorstin, 751 F.2d 1405, 1415-16 (D.C. Cir. 1985) (concluding that Congress did not intend to prevent federal employees from suing their employers for constitutional violations against which Title VII provided no protection); Gunning v. Runyon, 3 F.Supp.2d 1423, 1431 (M.D. Fl. 1998) (fmding that free speech claim against federal employer was not pre-empted by Title VII). Compare Keller v. Prince George's CntyDep't of Soc. Serv., 827 F.2d 952, 958(4th Cir. 1987); with Torres v. Wis. Dep't of Health & Soc. Serv., 592 F. Supp. 922, 931 (E.D. Wis. 1984);  see generally Brierton, at 291.

9 Compare Gunning, 3 F. Supp. 2d at 1432-33 (deciding a RFRA claim against a federal employer), and Reedv. Mineta, 93 Fed. App'x 195, 198 (10th Cir. 2004) (upholding an FAA employee's trial courtjudgment in which plaintiff successfully pursued a RFRA claim to trial alongside a Title VII claim), and Lister v. Def Logistics Agency, 2006 WL 162534, at *3 (S.D. Ohio Jan.  20, 2006) ( "Although the claims arise from the same factual circumstances as the Title VII claim, the [constitutional and RFRA] claims are distinct from Plaintiffs claim for employment discrimination."), with Francis v. Ridge, 2005 WL 3747434, at *2-3 (D.V.I. Dec. 27, 2005) (finding Title Vil is exclusive remedy for religious employment discrimination by federal employees), and Molotsky v. Henderson, 1999 WL 165683, at* I (E.D. Pa. Mar. 9, 1999) (same).

10 See James A. Hanson, Comment, Missouri's Religious Freedom Restoration Act: A New Approach to The CauseOfConscience, 69Mo. L. REV. 853, 863 (2004).

11 See Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 280-81 (Alaska 1994), Cosby v. State, 738 N.E.2d 709, 711 (Ind. Ct. App. 2000) ("Indiana Constitution may demand more protection for citizens than its federal counterpart"); Stinemetz v. Kan. Health Policy Auth., 252 P.3d 141, 160 (Kan. Ct. App. 2011); Rupert v. City of Portland, 605 A.2d 63, 65-66 (Me. 1992); AttorneyGen.  v.  Disilets,  636N.E.2d233,  236(Mass.  1994);  Peoplev.  DeJonge,  501N.W.2d127,  134-35(Mich.  1993); Shagalow v. State, 725 N.W.2d 380, 390 (Minn. 2006); Davis v. Church of Jesus Christ of Latter Day Saints, 852 P.2d 640, 647 (Mont. 1993), overruled on other grounds by Gliko v. Permann, 130 P.3d155 (Mont.  2006); Matter ofBrowning, 476 S.E.2d465,  467(N.C.  Ct.  App.  1996);  Humphreyv.  Lane, 728N.E.2d1039,  1043(Ohio2000);  FirstCovenantChurchv. City of Seattle, 840 P.2d 174, 187 (Wash. 1992) (en bane); State v. Miller, 549 N.W.2d 235, 239-40 (Wis. 1996). See generally Angela C.  Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 BYU. L. REV. 275 (1993).

12 See also EEOC, COMPLIANCE MANUAL§ 12: Religious Discrimination, 2008 WL 3862095 (West, Westlaw current through Aug. 2009).

13 42 U.S.C. §§ 2000e etseq.

 14 Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 281-82 (3d Cir. 2001). The elements for providing a case of religious discrimination are the same as those for race and sex discrimination. The employee must allege she "(l) is a member of a protected class, (2) was qualified and rejected for the position she sought, and (3) nonmembers of the protected class were treated more favorably."        Id.; see, e.g., Delegne v. Kinney Sys., Inc., 2004 WL 1281071 (D. Mass. June10, 2004) (holding Ethiopian Christian parking garage cashier could proceed to trial on religious harassment and discrimination where he was not allowed to bring a Bible to work, pray, or display religious items). Like sex and race, disparate impact analysis can also be used in religious discrimination claims. See, e.g., Barrow v. Greenville Indep. Sch. Dist.,  480F.3d377, 382-83(5thCir. 2007) (finding insufficient statistical evidence to show school's policy favoring teachers whose students attended public school had a disparate impact on teachers whose kids attended private school for religious reasons).

15 See Faragher v. City of Boca Raton, 524 U.S. 775,786-88 (1998) (finding harassment claims are actionable on any of the Title VIl's protected bases). A prima facie claim for religious harassment is also the same as for sex and race. The employee must demonstrate "(I) the employee[] suffered intentional discrimination because of [religion]; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same [religion] in that position; and (5) the existence ofrespondent superior liability." Abramson, 260 F.3d. at 276 (quotation marks and citation omitted); see also Johnson v. SpencerPressof Me.,  Inc., 364 F.3d 368, 375-77 (1stCir. 2004) (finding harassment where supervisor repeatedly insulted plaintiff and mocked his conservative religious beliefs).

16 Virts v. Consol. Freightways Corp. of Del., 285 F.3d 508, 521 (6th Cir. 2002). A prima facie retaliation claim is established by the following: "l) the plaintiff engaged in an activity protected by Title VII; 2) the exercise of the plaintiffs civil rights wasknown to the defendant; 3) the defendant thereafter undertook an employment action adverse to the plaintiff; and 4) there was a causal connection between the protected activity and the adverse employment action." Id.

17 See Abramson, 260 F.3d at 281 ("the cases in our court dealing with religious discrimination haveroutinelybeen of the'failure to accommodate'  variety").

18 Protas v. Volkswagen of Am., Inc., 797 F.2d 129, 136 (3rd Cir. 1986).

19 42 U.S.C. § 2000e-2.

2042 U.S.C. § 2000e(b).

 21 See Appendix II for a list of states with anti-discrimination statutes that apply to smaller employers.

22Smith v. CastawaysFamilyDiner, 453F.3d 971, 973-74 (7th Cir. 2006).

 23See generally Walters v. Metro.  Educ. Enters., Inc., 519 U.S. 202, 211(1997).

24 See, e.g., Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir. 2008) (noting independent contractor is not "employee").

 25 42 U.S.C. § 2000e-2(b) - (d) brings employment agencies, labor organizations, and training programs under the umbrella of Title VIL

26   Brown v. Gen. Servs. Admin., 425U.S. 820,835(1976).

 27 42 U.S.C. § 2000e-l(a); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987); Spencer v. World Vision, Inc., 633 F.3d 723, 724 (9th Cir. 2011) (per curiam). The exemption does not apply to other categories such as race and age. See Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1167 (4th Cir. 1985) ("While the language of [Title VII] makes clear that religious institutions may base relevant hiringdecisionsupon religious preferences, Title VII does not confer upon religious organizations a license to make those same decisions on the basis of race, sex, or national origin."); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 173 (2d Cir. 1993) (age). But religious organizations may still be protected from suits under other doctrines such as the ministerial exception, which is based on the Free Exercise and Establishment Clauses. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 708- 09 (2012).

2842 U.S.C. § 2000e-5(c).

29 42 U.S.C. § 2000e-5(c).

 30 42 U.S.C. § 2000e-5(e)(l).

 31 42 U.S.C. § 2000e-5(c)- (d).

32   § 2000e-5(e)(l).

 33 Title VII time limits "are not jurisdictional." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). The limits are analogous to statutes oflimitation and are subject to equitable modification. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Equitable modifications were permitted where "a claimant has received inadequate notice; or where a motion for appointment ofcounseling is pending... ; or where the court has led the plaintiff to believe that she had done everything required of her; [or] affirmative misconduct on the part of a defendant." Baldwin Country Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (citations omitted). In contrast, modification was not permitted where a prose claimant argued the right-to-sue letter was ambiguous, Soto v. U.S. Postal Serv., 905 F.2d 537, 541 (1st Cir. 1990); the claimant misunderstood the right-to-sue letter and named the wrong defendant, Rys v. U.S. Postal Serv., 866 F.2d 443, 447 (1st Cir. 1989); the claimant, represented by counsel, asserted that she believed that the intake questionnaire was a formal charge, Hamel v. Prudential Ins. Co., 640 F. Supp. 103, 105 (D. Mass. 1986); or where the claimant filed claims well after the 180 day period despite sufficient knowledge of procedures and administrative relief, Hamilton v. West, 30 F.3d 992, 993-94 (8th Cir. 1994).34 42 U.S.C. § 2000e-5(e)(l).

3542 U.S.C. § 2000e-(5)(d).

 36 See Breen v. Norwest Bank Minn., NA., 865 F. Supp. 574, 578-79 (D. Minn. 1994) (complaint untimely when deferral agency did not cross-file complaint and plaintiffs counsel failed to monitorfilings).

3742 U.S.C. § 2000e-5(t)(l).

 38 42 U.S.C. § 2000e-5(t)(l).

 39 42 U.S.C. § 2000e-5(t)(l ).

 40 42 U.S.C § 2000e-5(t)(l).

 4142 U.S.C§ 2000e-5(t)(l).

 42 29 C.F.R. § 1614.105(a)(l).

 4329 C.F.R. § 1614.105(d). This period is extended to 90 days if the agency has a "dispute resolution procedure" in place, 29

C.F.R. § 1614.105(f), or forup to 60 days if the aggrieved person so requests in writing, 29 C.F.R. §  1614.105(e).

4429 C.F.R. § 1614.105(d).

 4529 C.F.R. § 1614.108(f).

 4629 C.F.R. § 1614.407(b).

 47 29 C.F.R. § 1614.407(a).

 48 29 C.F.R. § 1614.402(a).

 49 29 C.F.R. § 1614.406.

 50 29 C.F.R. § 1614.407(c)- (d).

 51 Heller v. EBB Auto Co., 8 F.3d 1433, 1440 (9th Cir. 1993); Protos, 797 F.2d at 134; Turpen v. Missouri-Kansas-Texas R. Co. 736 F.2d 1022, 1026 (5th Cir. 1984).

 52 411 U.S. 792, 802 (1973). The Supreme Court has not yet adopted the McDonnell-Douglas burden shifting in religious discrimination cases. Although it was requested to set forth the shifting burdens of proof in Ansonia Board of Education v. Philbrook, 479 U.S. 60, 67 (1986), the court deemed it unnecessary for that particular holding and declined to do so. Seegenerally Gregory G. Samo, Harassment or Termination of EmployeeDue toReligiousBeliefs orPractices, 35 AM. JUR. PROOF OF FACTS 2D 209 § 5 (1983) (hereinafter, "Harassmenf').

53 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); Mandell v. Cnty. of Suffolk, 316 F.3d 368, 380-81 (2dCir. 2003).  Pretext can be established by demonstrating "that either (1) the defendant could operate his business.

54 Harassment, 35 AM. JUR. PROOF OF FACTS 2D at§ 5.

55 Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987); Heller, 8 F.3d at 1438; Turpen 736 F. 2d at 1026.

 56 Hicks, 509 U.S. at 511.

 5742 U.S.C. § 2000eG).

 58 See Donald T. Kramer, Annotation, Validity, Construction, and Application of Provisions of Title VII of the Civil Rights Act of 1964 (42 USCA §§ 2000e, et seq.), and Implementing Regulations, Making Religious Discrimination in Employment Unlawful, 22 A.L.R. Fed. 580 § 4 (1975).

59 Compare EEOC v. Union Independiente De La Autoridad De Acueductos, 279F.3d49,  56(1stCir.  2002)  (discussing evidence of Seventh Day Adventist acting inconsistent with beliefs could be considered, but is not dispositive), with Miss. Emp't Sec. Comm'n v. McGlothin, 556 So.2d 324, 330 (Miss. 1990) (finding employee's belief was sincerely held even though she was not an active member of her religious group and wore her head wrap only occasionally).

 60 See Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378-79 (6th Cir. 1994) (working on the Sabbath for seven months after her baptism did not establish her faith was insincere as it was growing during this time).

61 EEOC v. Univ. of Detroit, 701 F. Supp. 1326, 1331 (E.D. Mich. 1988), rev'don other grounds 904 F.2d 33 l (6th Cir. 1990).  See also EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997) (request of vacation to observe Yorn Kippur by Jewish employee was sincere, even though she had not asked for vacation in the previous eight years).

 62McGinnis v. US.  Postal Serv., 512 F. Supp. 517,520 (N.D. Cal. 1980).

 63 Guidelines On Discrimination Because of Religion, 29 C.F.R. § 1605.1 (West, Westlaw through Jan. 24, 2013) ("Guidelines"). See Anderson v. US.F. Logistics (IMC), Inc., 274 F.3d 470, 475-76 (7th Cir. 2001) (employee's belief that she must say "Have a Blessed Day" was covered by Title VII, even though it was not a requirement of her church).

64 Heller, 8 F.3d at 1438; see also id. at 1438-39 (summarizing authorities); Redmond v. GAF Corp., 574 F.2d 897, 900-01 (7th Cir. 1978) ("We conclude that conduct which is " religiously motivated," i.e., "all forms and aspects of religion, however eccentric ...."is protected."); 22 A.LR.  Fed. 580 § 4.

 65EEOC Dec. No. 71-2620, 4 Fair Empl. Prac. Cas. (BNA) 23 (1970).

 66 EEOC Dec. No. 71-779, 3 Fair Empl. Prac. Cas. (BNA) 172 (1970).

 67 EEOC Dec. No. 72-1301, 4 Fair Empl. Prac. Cas. (BNA) 715 (1972).

 68Young v. Southwestern Sav. & loan Ass'n., 509 F.2d 140, 143-44 (5th Cir.  1975).

 69 EEOC, Compliance Manual§ 628.4: Religious Accommodation, 2006 WL 4672842, at*5.

 70Bellamy v. Mason's Stores, 368 F. Supp. 1025, 1026 (E.D. Va. 1973).

71 Brownv. Pena,441 F. Supp. 1382, 1385 (S.D. Fla.1977).

 72120 F.3d 749 (8th Cir. 1997).

 73Id. at 750.

 74 Id. at 751.

75 Harassment, 35 AM. JUR. PROOF OF FACTS 2D 209 § 2; Compston v. Borden, Inc., 424 F. Supp. 157, 161 (S.D. Ohio 1976).

 76Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71-72 (1977).

 77 See Vander Laan v. Mulder, 443 N.W.2d 491,493 (Mich. Ct. App. 1989) (deferral agency decision under state law that denied unemployment benefits was upheld when a dental hygienist was fired for persistently professing her faith to patients. Her acts were considered a personal choice rather than a dictate of her religion); Smith v. Univ. Servs., 360 F. Supp. 441, 441 (E.D. La. 1972) (dicta discussing discharged employee's pastor who testified that "preaching and singing" are not required by a believer if "these practices are prohibited on the job"); Muslim v. Cong. Q., Inc., 1979 WL 140, at *2 (D.D.C. Jan. 17, 1979) (dismissing Black Muslim's complaint because no evidence that his religion required its adherents to perform security duties at the request of the minister when such requests entailed leaving work without notice).

 78Heller, 8 F.3d at 1439.

 79Brown v. Polk Cnty., 61 F.3d 650,654 (8th Cir. 1995) (en bane).

80° Chalmers v. Tu/on Co. of Richmond, 101 F.3d 1012, 1020 (4th Cir. 1996).

81 Chrysler Corp. v. Mann, 561 F.2d 1282, 1285-86 (8th Cir. 1977); Bodett v. CoxCom, Inc., 366 F.3d 736, 744 (9th Cir. 2004).

 82 See Finnemore v. Bangor Hydro-Electric Co., 645 A.2d 15, 17 (Me. 1994) (holding employee stated cause of action under Maine statue prohibiting harassment where co-workers knew of his religious beliefs against sexually explicit comments and made such comments about his wife).

83 Harassment, 35 AM. JUR. PROOF OF FACTS 2D 209 § 3.

 84 EEOC v. Townley Eng'g & Mfg., 859 F.2d 610,614 n.5 (9th Cir. 1988).

 85Hardison, 432 U.S. at 73-74.

 8629 C.F.R. § 1605.2(c).

 87 Riley v. Bendix Corp., 464 F.2d 1113, 1115 (5th Cir. 1972); Reid v. Memphis Pub!'g Co., 468 F.2d 346, 350-51 (6th Cir. 1972).

88 Religious Discrimination, 22 A.LR. Fed. 580 § 2; see, e.g., United States v. City of Albuquerque, 545 F.2d 110, 114 (10th Cir. 1976).

89 Philbrook, 479 U.S. at 67 (quoting Hardison, 432 U.S. at 84).

 90 See Philbrook, 479 U.S. at 69 ("courts have noted that 'bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee's religion and the exigencies of the employee's business."' (quoting Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 145-46 (5th Cir. 1982))); seealso Shelton v. Univ. of Med&  Dentistryof N.J., 223 F.3d220, 227 (3d Cir. 2000) (finding employee failed to satisfy duty to cooperate in finding a reasonable accommodation when she refused to meet with the HR department).

 91Id. at 68.

 92 701 F. Supp. at 1341.

 93 Id at 1328. The court rejected the plaintiffs convincing argument that any support of the union is objectionable because that portion of the union's activities attributable to pro-abortion activities cannot be separated. The entire weight and influence of the union was used to push its pro-abortion agenda.  Idat 1329.

94 See EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219,222 (6th Cir. 1991) ("[a]fter failing to pursue [a voluntary waiver of seniority rights] or any other reasonable accommodation, the company is in no position to argue that it was unable to accommodate reasonably [plaintiffs] religious needs without undue hardship."); EEOC v. Ithaca Indus., Inc., 849 F.2d 116, 117 (4th Cir. 1988) (finding the same).

 95 Religious speech is emphasized here because it is the most frequently litigated. But other religious practices of government employees are also protected by the First Amendment. See Fraternal Order of Police v. City of Newark, 170 F.3d 359, 366-67 (3d Cir. 1999) (holding police department violated Muslim officer's free exercise rights by refusing to exempt him from its "no beard" policy, while allowing exceptions to the policy for medical reasons).

96 Perry v. Sindermann, 408 U.S. 593, 597 (1972). See The White House, Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (Aug. 14, 1997), at http://clinton2.nara.gov/WH/New/html/l99708l9-3275.html (lastvisited Jan. 31, 2013) (summarizing the religious rights offederalemployees).

97 Garcetti v. Ceballos, 547 U.S. 410, 420 (2006); Connick v. Myers, 461 U.S. 138, 147 (1983); Pickering v. Bd. of Educ., 391 U.S. 563,568(1968).

 98 See Garcetti, 547 U.S. at 421 ("We hold that when public employees make statements pursuantto their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does notinsulate their communications from employer discipline.").

 99 Compare Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, (9th Cir. 2008) (holding issue of employee's job duties is a mixed question oflaw and fact); and Reilly v. City of Atlantic City, 532 F.3d 216,227 (3d Cir. 2008) (same); with Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007) (holding whether a plaintiff "ha[s] spoken as a citizen on a matter of public concern" is a "question[] of law for the court to resolve," and not a "question[] of fact ordinarily for the jury"); and Charles v. Grief, 522 F.3d 508, 513 n.17 (5th Cir. 2008) (same).

10° Connick, 461 U.S. at 147.

101Waters, 511 U.S. at 668; Pickering, 391 U.S. at 568.

 102Rutan v. RepublicanParty oflll., 497 U.S. 62, 78 (1990).

 10397 F.3d 1204 (9th Cir. 1996).

 104Idat 1208.

105 Id.

 106Id. at 1208-09.

 107 Id. at 1209.

 108 Id. at 1209-10.

 l 09Id. at 1210.

 110Idat 1211.

 Ill    Id

 112Idat 1212.

 113Id. (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 841 (1995)).

114 Id

 115Idat 1214.

 116Idat 1215 (quoting Cornelius v. NAACP Legal Def& Educ. Fund, 473 U.S. 788,806 (1985)).

111 Id.

118 /d

 119 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).

 120 Brown, 61 F.3d at 658.

 121 Id.

 1221d. at 658-59 (emphasis in original). In Vernon v. City of Los Angeles, 27 F.3d 1385 (9th Cir. 1994), the Ninth Circuit held that an assistant police chiers free exercise rights were not violated by a city investigation of his religious beliefs to see if they improperly affected his official decisions because the investigation did not prohibit any religious exercise. Ironically, the court carefully noted that "no specific inquiry was made into Vernon's religious beliefs," id at 1390, then reiterated that "[t]here is simply no evidence that the City ever monitored Vernon's private religious activities," id at 1394. How the investigators could determine whether Vernon's religious beliefs affected his decisions without knowing what the beliefs were was not explained.

123Id. at 658.

 124 Id. at 659.

 12s Id.

 126   Id.

 12797 F.3d at 1216 (emphasis in original).

 128Id. at 1217.

129 Brown, 61 F.3d at 659; see also McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring) ("The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.").

 130 Brown, 61 F.3d at 659 (quoting Whitney v. California, 274 U.S. 376,376 (1927) (Brandeis, J., concurring)).

 131 275 F.3d 156, 164-65 (2nd Cir. 2001). Compare Berry v. Dep't of Soc. Servs., 447 F.3d 642,650 (9th Cir. 2006) (government employer did not have to accommodate social worker's request to display religious items in her cubical and discuss religion with clients because of Establishment Clause concerns); and Daniels v. City of Arlington, 246 F.3d 500,504 (5th Cir. 2001) (allowing a police officer to wear a cross on his uniform may violate the Establishment Clause); with Draper v. Logan Cnty. Pub. Library, 403 F. Supp. 2d 608, 619-20 (W.D. Ky. 2005) (library employee's free speech and free exercise rights were violated when she was prohibited from wearing a necklace with a cross ornament because there was no danger that a reasonable person would see this as government endorsement  ofreligion).

132 Darren K. Carlson, Nurses Remain at Top of Honesty and Ethics Poll, The Gallup Organization, www. aJlu .corn, Nov. 27, 2000. See also Cheating is Acceptable on Taxes, USA Today, April 9, 2001, at 18 (40% of Americans approve of cheating on income taxes in areas like reporting excess business expenses and failing to report income).

 133EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610,621 (9th Cir.  1988).

134 Id

 135 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). On June 30, the United States Supreme Court ruled,  in Conestoga Wood Specialties v. Burwell and Burwell v. Hobby Lobby Stores, that the Hahn family (which operated Conestoga Wood Specialties) or the Green family (which operates Hobby Lobby and Mardel) could not be forced to include abortion drugs and devices in their employee health insurance plans. In other words, Americans do not surrender their freedom when they open a family business.

 136 Taylor v. Nat'! Grp. Of Cos., 729 F.Supp. 575 (N.D. Ohio 1989) (employer's gift of a book endorsing secular humanism to new employees on their first day of work did not rise to the level of religious discrimination against a Christian employee).

 137 Brown Transp. Corp. v. Human Relations Comm'n, 578 A.2d 555 (Pa. Commw. Ct. 1990).

 138 Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351, 355, 362-63 (Or. 1995) (evangelical Christian employer did not violate state law prohibiting employers from making "[u]nwelcome religious advances" by witnessing to his employee and inviting him to church).

 139 Townley, 859 F.2d at 620.

14° Chalmers v. Tu/on Co. of Richmond, 101 F.3d 1012, 1021 (4th  Cir. 1996). See also Bodett v. CoxCom, Inc., 366 F.3d 736 (9th Cir. 2004) (employer was justified in firing supervisor for telling homosexual subordinate that homosexuality is a sin, praying with her to receive salvation, and inviting her to church).

 141 Young v. Southwestern Sav. & Loan Assoc., 509 F.2d 140 (5th Cir. 1975).

 142 Brown v. Polk County, 61 F.3d 650,656 (8th Cir. 1995).

 143 Kolodziej v. Smith, 588 N.E.2d 634,638 (Mass. 1992).

 144 California (Cal. Gov't Code 12920, 12940), Colorado (C.R.S. 24-34-402), Connecticut (Conn. Gen. Stat.  46A-81C),  Delaware (Del. Cod ann. 711), District of Columbia (D.C. Code Ann. 2-1402.11), Hawaii (Haw. Rev. Stat. 378-2),    Illinois (Ill. Comp. Stat. Ann. 5/1-102), Iowa (Iowa Code Ann. 216.6), Maine (Me. Rev. Stat. Ann. Tit. 5, 4572), Maryland (Md. Ann. Code State Gov't 20-606), Massachusetts (Mass. Gen. Laws Ch. 1518, 3, 4), Minnesota (Minn. Stat. 363A.08), Nevada (Nev. Rev.  Stat. Ann. 613.330), New Hampshire (N.H. Rev. Stat. Ann 354-A:6, 354-A:7), New Jersey (N.J. Stat. Ann. 10:5-4, 10:5-12),  New Mexico (N.M. Stat. Ann. 28-1-7), New York (N.Y. Exec. Law 296), Oregon (Or. Rev. Stat. Ann. 659A.030), Rhode Island (R.I. Gen. Laws 28-5-7), Vermont (Vt. Stat. Ann. Tit. 21,495), Washington (Wash. Rev. Code Ann.49.60.010, 49.60.030, and Wisconsin (Wis. Stat 111.36).

145 Some organizations publish online lists of municipalities that prohibit sexual orientation discrimination by privateemployers. However, mistakes are frequently found in these lists and citations can sometimes not be confirmed because of the difficulty of obtaining copies of each municipality's code. Employers should always check the code of each municipality and state where they have business operations and rely on published lists only as a starting point.

 146 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

147 See, e.g., Consolidated Appropriations Act, Pub. L. No. 113-76, 128 Stat. 5, Div. H, Section 507 (Jan. 17, 2014) (states may not receive certain federal funding if they require abortion in health insurance); 42 U.S.C. 18113(a) (governments may not require assistance in or coverage of doctor-assisted suicide or euthanasia).

 148 Johnson v. Halls Merch., 49 Fair Empl. Prac. Cas. (BNA) 527 (W.D. Mo. 1989) (retail business justified in firing sales associate who often began her conversations to customers with the phrase "in the name of Jesus Christ of Nazareth"); EEOC v. Samba's of Georgia, Inc., 530 F.Supp. 86 (N.D. Ga. 1981) (restaurant could require all employees to shave beards to protect its public image); Knight v. Connecticut, 275 F.3d 156 (2d Cir. 2001) (employer not required to accommodate employees' religious beliefs that they evangelize clients).

 149 Private employers should be aware that employee statements regarding illegal activity of employers may be protected under "Whistle Blower" statutes. See, e.g., Fla. Sta. Ann Section 448.102 (2005).

 150 The fact that the speech to customers actually adversely affects business is vital. A company could not prevent its employees from saying "God Bless You" and "Praise the Lord" to its food service customers because there was no evidence that it had actually caused business to be affected. Banks v. Service Am. Corp., 952 F.Supp. 703 (D.Kan. 1996).

 151 Wilson v. US. West Communications, 58 F.3d 1337 (8th Cir. 1995). However, the court in this case found that the employee's   religious   beliefthatshemust   wear   apro-life   buttondepicting   an   unborn   child   was reasonably accommodated when the employer offered to let the employee wear the button as long as it was covered or let the employee wear a button with a similar message, but without the picture of the unborn child. See also Peterson v. Hew/ell-Packard, Inc., 358 f.3d 599 (9th Cir. 2004) (termination of employee for posting Bible passages in his work space condemning homosexuality was not religious discrimination under Title VII).

 152 Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D. Fla. 1991); Andrews v. City of Philadelphia, 895 F.2d 1469, 1475, 1486 (3d Cir. 1990).

153 Weiss v. United States, 595 F.Supp. 1050 (E.D. Va.1984). See also Abramson v. William Paterson College of NJ, 260 F.3d 265 (3d Cir. 2001) (supervisor's criticism of Orthodox Jewish belief not to work on Sabbath could create hostile work environment); Chalmers, 101 F.3d 1012 (employer did not have to accommodate employee's letter to co­ worker stating that he needed to repent of his sin).

 154Minn. Dep't of Highways v. Minn. Dep't of Human Rights, 241 N.W.2d 310,313 (Minn. 1976), cert. denied, 429 U.S. 863.

155/d

 156 Brown, 61 /f,3d at 657 (quoting Burns v. Sothern Pacific Transit Co., 589 F.2d 403, 407 (9th Cir. 1978), 439 U.S. 1072 (1979)). See also EEOC Dec. No. 76-98, EEOC Dec. paragraph 6674 (1976) where an Orthodox Muslim was unlawfully fired for being "overzealous in his practices of his beliefs in his conversation with officers and inmates." The employer fired him because he "cannot be persuaded to tone down his religious practices on the job and continually gets wrapped up in conversations with the inmates." Because there was no evidence that the employee's conduct had made him unable to perform his duties or hampered the efficient operation of theworkplace,  the employee prevailed in his claim.

 157See note 72.

 158See notes 76 and 77.

 159Gunning v. Runyon, 3 F.Supp.2d 1423, 1428-29 (S.D. Fla.  1998).

 160 EEOC Dec. 82-1, 28 Fair Empl. Prac. Cas. (BNA) 1840 (1982). See also Bhatia v. Chevron USA, Inc., 734 F.2d 1328 (9 ' Cir. 1984); Samba's of Georgia, Inc., 530 F.Supp. 86 (restaurant could require all employees to shave beards to protect its public image.

 161 EEOC Dec. No. 71-779, 3 Fair Empl. Prac. Cas. (BNA) 172 (1970). See also EEOCDec.  No. 71-2620,  4 Fair Empl. Prac. Cas. (BNA) 23 (1971) (where an employer could not fire employee for wearing traditional Islam garb because there was no evidence that requiring employees to wear traditional office attire was necessary to the safe and efficient operation of the business); Carter v. Bruce Oakley, Inc., 849 F.Supp. 673 (E.D. Ark. 1993) (employercouldnot demonstrate that beard imposed safety risk so there was no undue burden); EEOC Dec. 81-20, 27 Fair Empl. Prac. Cas. (BNA) 1809 (1981) (employer required to permit employee to wear skirt instead of pants, as required by her religious beliefs).

16242 U.S.C. 2000e-l.

 163 See William W. Bassett, Religious Organizations and the Law, Section 6:15 (2001) (citing Internal Revenue Code Section 50l(c)(3) and the Revised Model Nonprofit Corporation Act, Section1.40).

 164 See Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp. 2d 106, 119 n. 13 (D.D.C. 2012) (for-profit Bible publishing company that donates its profits to charity might qualify as a "religious corporation" under Title VIL

 165 42 U.S.C. 2000e-2 & 2000e(b).

 166 42 U.S.C. § 2000eG); Guidelines, 29 C.F.R. § 1605.2(b).

167 See also Opuki-Boateng v. California, 95 F.3d 1461, 1473 (9th Cir. 1996) (finding complaints by other employees not enough to show undue hardship in accommodating employee's request for religious holidays off); accord Burns, 589 F.2d at 406-07.

168 But see EEOC v. Red Robin Gourmet Burgers, Inc., 2005 WL 2090677, at *5 (W.D. Wash. Aug. 29, 2005) (finding employer failed to demonstrate accommodating an employee's visible religious tattoos was an undue hardship because it undermined its family and kid friendly image).

169 Compare Pime v. Loyola Univ. of Chi., 803 F.2d 351, 353-54 (7th Cir. 1986) (being Jesuit was a BFOQ for a full­ time faculty position at Jesuit university); with Abrams v. Baylor Coll. of Med., 805 F.2d 528, 534-35 (5th Cir. 1986) (being non-Jewish was not a BFOQ for a university which supplied physicians to a Saudi Arabia hospital where there was no evidence that Saudi Arabia would have refused a visa to a Jewish faculty member); and Rasul v. District of Columbia, 680 F. Supp. 436, 439-42 (D.D.C. 1988) (finding protestant religious affiliation was not BFOQ for prison chaplain because responsibilities included ministering to inmates of all denominations).

170 See Thomas D. Brierton, An Unjustified Hostility Toward Religion in the Workplace, 34 CATH. LAW. 289 (1991) . Use of Title VII, a federal statue, to restrict speech in order to avoid creating a hostile work environment obviously has serious First Amendment ramifications.  This topic,  however,  is not withinthe scope of thispaper.  For a discussionofthe First Amendment implications of Title VII's speech restrictionsinthesexualharassmentcontext,  seeJules8. Gerard, The First Amendment in a Hostile Environment : A Primer on Free Speech and Sexual Harassment, 68 NOTRE DAME L. REV. 1003 (1993); Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. REV. 1791 (1992); Kinglsey R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 OHIO ST. L.J. 481 (1991); see also Rodriguez vMaricopa Cnty. Comm. Coll., 605 F.3d 703, 710-11(9th Cir. 20IO) (holdingschooldid notviolateHispanicemployees'  right tobe freefromworkplaceharassmentwhen it failedtocensorthe offensive comments of a professor.   These commentswere protectedspeech, not harassment).

 171 But see Kolodziej v. Smith, 588 N.E.2d 634, 638 (Mass. 1992) (holding employee could not be forced to attend devotional services at which prayer was offered, but requiring employee to attend a management seminar put on by Institute of Basic Life Principles which used scriptural passages to support the lessons it sought to promote did not violate Massachusetts civil rights law).

172Francis A. Schaeffer, "A Christian Manifesto" (Wheaton: Crossway Books, 1981), p. 124.

 

APPENDIX I

 State RFRAs

 Alabama    ALA. CONST. amend. 622, § V(a) (West, Westlaw through Aug. 29, 2011) Arizona     ARIZ. REV. STAT. ANN.§ 41-1493.0l(B) (West, Westlaw through June 12, 2012)

Connecticut           CONN. GEN. STAT.§ 52-571b(a)- (b) (West,  Westlaw throughAug. 29, 2012) Florida                  FLA. STAT. 761.03(1) (West, Westlaw through 2012)

Idaho IDAHO CODE ANN. § 73-402(2) (West, Westlaw through 2012) Illinois       775 ILL. COMP. STAT. 35/15 (West, Westlaw through 2012) Louisiana LA. REv. STAT. ANN.§ 13:5233 (West, Westlaw through 2012) Missouri       Mo. REv. STAT.§ 1.302(West,  Westlawthrough 2012)

New Mexico          N.M. STAT. ANN.§ 28-22-3 (West, Westlaw through 2012) Oklahoma OKLA. STAT. tit. 51, § 253(A) (West, Westlaw through 2012) Pennsylvania       71 PA. CONS. STAT.§ 2404 (West, Westlaw through 2012) Rhode IslandR.I. GEN. LAWS§ 42-80.1-3 (West, Westlaw through 2012) South Carolina           S.C. CODE ANN.§ 1-32-40 (West, Westlaw through 2012) Tennessee TENN. CODE ANN.§ 4-1-407 (West, Westlaw through 2012)

Texas TEX.CIV.PRAc.&REM.CODEANN. § 110.003 (West, Westlawthrough2011) Virginia                  VA. CODE ANN.§ 57-2.02(B) (West, Westlaw through  2012)

APPENDIX II

States with reduced number of employees required to be considered an "employer" for purposes of applicability of state anti-discrimination laws to private employers

# of

State    Employees                               Code Section

 

Alaska                                                 1    ALASKA STAT. ANN.§ 18.80.300(5)

Arizona   1 (sex harass. only)              ARIZ. REv. STAT. ANN. § 41-1461(6)(a) Arkansas9                                            ARK. CODE ANN.§ 16-123-102(5)

California                                             5    CAL. Gov'T CODE§ 12926(d)

l (harass. only)                    CAL. Gov'T CODE§ 12940G)(4)(A)

Colorado                                              1    COLO. REV. STAT. ANN.§ 24-34-301(5) & 401(3)

Connecticut                                          3    CONN. GEN. STAT. ANN. 46a-51(10)

Delaware                                              4    DEL. CODE ANN. tit. 19, § 710(6)

D.C.        1                                           D.C. CODE§ 2-1401.02(10)

Hawaii    1                                           HAW. REV. STAT.§ 378-1

Idaho      5                                           IDAHO CODE§ 67-5902(6)

Illinois    1 (disability & sex. harss. only) 775 ILL. COMP. STAT. ANN. 5/2-lOl(B)(l)(b) Indiana 6                                           IND. CODE ANN.§ 22-9-1-3

Iowa       4                                           IOWA CODE ANN. § 216.6(6)(a)

Kansas    4                                           KAN. STAT. ANN.§ 44-1002(b)

Kentucky                                             8 (excluding disability)      KY. REV. STAT. ANN. § 344.030(2)

Maine     1                                           ME. REV. STAT. ANN. tit. 5, § 4553(4)

Maryland                                             1    Molesworth v. Brandon, 672 A.2d 608,637 (Md. 1996) (wrongful discharge claim only)

Massachusetts Michigan Minnesota Missouri 6

Montana 1

New Hampshire New Jersey New Mexico New York North Dakota Ohio4 Oklahoma Oregon  1

6    MASS. GEN. LAWS ANN. ch. 1518, § 1(5)

1    MICH. COMP. LAWS ANN.§ 37.2201(a) 1           MINN. STAT. ANN.§ 363A.03(16)

Mo. ANN. STAT.§ 213.010(7) MONT. CODE ANN.§ 49-2-101(11)

6    N.H. REV. STAT. ANN.§ 354-A:2(VII) 1 N.J. STAT. ANN. § 10:5-5(e)

4    N.M. STAT. ANN. § 28-l-2(8)

4    N.Y. EXEC. LAW 292(5)

1    N.D. CENT. CODE ANN.§ 14-02.4-02(8) OmoREv.  CODE ANN.§ 4112.0l(A)(2)

1    OKLA. STAT. ANN. tit. 25, § 1301(1) OR REV. STAT. ANN.§ 659A.001(4)

Pennsylvania Rhode Island South Dakota Tennessee Vermont 1 Washington West Virginia Wisconsin Wyoming

4    43 PA. CONS. STAT. ANN. § 954(b) 4     R.I. GEN. LAWS ANN. § 28-5-6(7)(i)

1    S.D. CODIFIED LAWS§ 20-13-1(7) 8      TENN. CODE ANN.§ 4-21-102(5) VT. STAT. ANN. tit. 21, §  495d(l)

8    WASH. REV. CODE ANN. § 49.60.040(11)

12W. VA. CODE ANN.§ 5-ll-3(d) 1    WIS. STAT. ANN.§ 111.32(6)(a) 2   WYO. STAT. ANN.§ 27-9-102(b)