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GUIDELINES
ON RELIGIOUS EXERCISE AND RELIGIOUS EXPRESSION
IN THE FEDERAL WORKPLACE
Issued
by the White House, August 14, 1997
The
following guidelines, addressing religious exercise and
religious expression, shall apply to allcivilian executive
branch agencies, officials, and employees in the federal
workplace.These guidelines principally address employees'
religious exercise and religious expression when the employees
are acting in their personal capacity within the federal
workplace and the public does not have regular exposure
to the workplace. The guidelines do not comprehensively
address whether and when the government and its employees
may engage in religious speech directed at the public. They
also do not address religious exercise and religious expression
by uniformed military personnel, or the conduct of business
by chaplains employed by the federal government. Nor do
the guidelines define the rights and responsibilities of
non-governmental employers -- including religious employers
-- and their employees. Although these guidelines, including
the examples cited in them, should answer the most frequently
encountered questions in the federal workplace, actual cases
sometimes will be complicated by additional facts and circumstances
that may require a different result from the one the guidelines
indicate.
Section
1. Guidelines for Religious Exercise and Religious Expression
in the Federal Workplace. Executive departments and
agencies ("agencies") shall permit personal religious expression
by federal employees to the greatest extent possible, consistent
with requirements of law and interests in workplace efficiency
as described in this set of guidelines. Agencies shall not
discriminate against employees on the basis of religion,
require religious participation or non-participation as
a condition of employment, or permit religious harassment.
And agencies shall accommodate employees' exercise of their
religion in the circumstances specified in these guidelines.
These requirements are but applications of the general principle
that agencies shall treat all employees with the same respect
and consideration, regardless of their religion (or lack
thereof).
A.
Religious Expression. As a matter of law, agencies
shall not restrict personal religious expression by employees
in the federal workplace except where the employee's interest
in the expression is outweighed by the government's interest
in the efficient provision of public services or where the
expression intrudes upon the legitimate rights of other
employees or creates the appearance, to a reasonable observer,
of an official endorsement of religion. The examples cited
in these guidelines as permissible forms of religious expression
will rarely, if ever, fall within these exceptions.
As
a general rule, agencies may not regulate employees' personal
religious expression on the basis of its content or viewpoint.
In other words, agencies generally may not suppress employees'
private religious speech in the workplace while leaving
unregulated other private employee speech that has a comparable
effect on the efficiency of the workplace -- including ideological
speech on politics and other topics -- because to do so
would be to engage in presumptively unlawful content or
viewpoint discrimination. Agencies, however, may, in their
discretion, reasonably regulate the time, place and manner
of all employee speech, provided such regulations do not
discriminate on the basis of content or viewpoint.
The
federal government generally has the authority to regulate
an employee's private speech, including religious speech,
where the employee's interest in that speech is outweighed
by the government's interest in promoting the efficiency
of the public services it performs. Agencies should exercise
this authority evenhandedly and with restraint, and with
regard for the fact that Americans are used to expressions
of disagreement on controversial subjects, including religious
ones. Agencies are not required, however, to permit employees
to use work time to pursue religious or ideological agendas.
Federal employees are paid to perform official work, not
to engage in personal religious or ideological campaigns
during work hours.
(1)
Expression in Private Work Areas. Employees should be
permitted to engage in private religious expression in personal
work areas not regularly open to the public to the same
extent that they may engage in non-religious private expression,
subject to reasonable content- and viewpoint-neutral standards
and restrictions: Such religious expression must be permitted
so long as it does not interfere with the agency's carrying
out of its official responsibilities.
Examples
(a)
An employee may keep a Bible or Koran on her private desk
and read it during breaks.
(b)
An agency may restrict all posters, or posters of a certain
size, in private work areas, or require that such posters
be displayed facing the employee, and not on common walls;
but the employer typically cannot single out religious or
anti-religious posters for harsher or preferential treatment.
(2)
Expression Among Fellow Employees. Employees should
be permitted to engage in religious expression with fellow
employees, to the same extent that they may engage in comparable
non-religious private expression, subject to reasonable
and content-neutral standards and restrictions: Such expression
should not be restricted so long as it does not interfere
with workplace efficiency. Though agencies are entitled
to regulate such employee speech based on reasonable predictions
of disruption, they should not restrict speech based on
merely hypothetical concerns, having little basis in fact,
that the speech will have a deleterious effect on workplace
efficiency.
Examples
(a)
In informal settings, such as cafeterias and hallways, employees
are entitled to discuss their religious views with one another,
subject only to the same rules of order as apply to other
employee expression. If an agency permits unrestricted non-religious
expression of a controversial nature, it must likewise permit
equally controversial religious expression.
(b)
Employees are entitled to display religious messages on
items of clothing to the same extent that they are permitted
to display other comparable messages. So long as they do
not convey any governmental endorsement of religion, religious
messages may not typically be singled out for suppression.
(c)
Employees generally may wear religious medallions over their
clothes or so that they are otherwise visible. Typically,
this alone will not affect workplace efficiency, and therefore
is protected.
(3)
Expression Directed at Fellow Employees. Employees are permitted
to engage in religious expression directed at fellow employees,
and may even attempt to persuade fellow employees of the
correctness of their religious views to the same extent
as those employees may engage in comparable speech not involving
religion. Some religions encourage adherents to spread the
faith at every opportunity, a duty that can encompass the
adherent's workplace. As a general matter, proselytizing
is as entitled to constitutional protection as any other
form of speech -- as long as a reasonable observer would
not interpret the expression as government endorsement of
religion. Employees may urge a colleague to participate
or not to participate in religious activities to the same
extent that, consistent with concerns of workplace efficiency,
they may urge their colleagues to engage in or refrain from
other personal endeavors. But employees must refrain from
such expression when a fellow employee asks that it stop
or otherwise demonstrates that it is unwelcome. (Such expression
by supervisors is subject to special consideration as discussed
in Section B(2) of these guidelines.)
Examples
(a)
During a coffee break, one employee engages another in a
polite discussion of why his faith should be embraced. The
other employee disagrees with the first employee's religious
exhortations, but does not ask that the conversation stop.
Under these circumstances, agencies should not restrict
or interfere with such speech.
(b)
One employee invites another employee to attend worship
services at her church though she knows that the invitee
is a devout adherent of another faith. The invitee is shocked,
and asks that the invitation not be repeated. The original
invitation is protected, but the employee should honor the
request that no further invitations be issued.
(c)
In a parking lot, a non-supervisory employee hands another
employee a religious tract urging that she convert to another
religion lest she be condemned to eternal damnation. The
proselytizing employee says nothing further and does not
inquire of his colleague whether she followed the pamphlet's
urging. This speech typically should not be restricted.
Though
personal religious expression such as that described in
these examples, standing alone, is
protected
in the same way, and to the same extent, as other constitutionally
valued speech in the federal workplace, such expression
should not be permitted if it is part of a larger pattern
of verbal attacks on fellow employees (or a specific employee)
not sharing the faith of the speaker. Such speech, by virtue
of its excessive or harassing nature, may constitute religious
harassment or create a hostile work environment, as described
in Part B(3) of these guidelines, and an agency should not
tolerate it.
(4)
Expression in Areas Accessible to the Public. Where
the public has access to the federal workplace, all federal
employers must be sensitive to the Establishment Clause's
requirement that
expression
not create the reasonable impression that the government
is sponsoring, endorsing, or inhibiting religion generally,
or favoring or disfavoring a particular religion. This is
particularly important in agencies with adjudicatory functions.
However,
even in workplaces open to the public, not all private employee
religious expression is forbidden. For example, federal
employees may wear personal religious jewelry absent special
circumstances (such as safety concerns) that might require
a ban on all similar non-religious jewelry. Employees may
also display religious art and literature in their personal
work areas to the same extent that they may display other
art and literature, so long as the viewing public would
reasonably understand the religious expression to be that
of the employee acting in her personal capacity, and not
that of the government itself. Similarly, in their private
time employees may discuss religion with willing coworkers
in public spaces to the same extent as they may discuss
other subjects, so long as the public would reasonably understand
the religious expression to be that of the employees acting
in their personal capacities.
B.
Religious Discrimination. Federal agencies may not
discriminate against employees on the basis of their religion,
religious beliefs, or views concerning religion.
(1)
Discrimination in Terms and Conditions. No agency
within the executive branch may promote, refuse to promote,
hire, refuse to hire, or otherwise favor or disfavor, an
employee or potential employee because of his or her religion,
religious beliefs, or views concerning religion.
Examples
(a)
A federal agency may not refuse to hire Buddhists, or impose
more onerous requirements on applicants for employment who
are Buddhists.
(b)
An agency may not impose, explicitly or implicitly, stricter
promotion requirements for Christians, or impose stricter
discipline on Jews than on other employees, based on their
religion. Nor may federal agencies give advantages to Christians
in promotions, or impose lesser discipline on Jews than
on other employees, based on their religion.
(c)
A supervisor may not impose more onerous work requirements
on an employee who is an atheist because that employee does
not share the supervisor's religious beliefs.
(2)
Coercion of Employee's Participation or Nonparticipation
in Religious Activities. A person holding supervisory
authority over an employee may not, explicitly or implicitly,
insist that the employee participate in religious activities
as a condition of continued employment, promotion, salary
increases, preferred job assignments, or any other incidents
of employment. Nor may an supervisor insist that an employee
refrain from participating in religious activities outside
the workplace except pursuant to otherwise legal, neutral
restrictions that apply to employees' off-duty conduct and
expression in general (e.g., restrictions on political activities
prohibited by the Hatch Act).
This
prohibition leaves supervisors free to engage in some kinds
of speech about religion. Where a supervisor's religious
expression is not coercive and is understood as his or her
personal view, that expression is protected in the federal
workplace in the same way and to the same extent as other
constitutionally valued speech. For example, if surrounding
circumstances indicate that the expression is merely the
personal view of the supervisor and that employees are free
to reject or ignore the supervisor's point of view or invitation
without any harm to their careers or professional lives,
such expression is so protected.
Because
supervisors have the power to hire, fire, or promote, employees
may reasonably perceive their supervisors' religious expression
as coercive, even if it was not intended as such. Therefore,
supervisors should be careful to ensure that their statements
and actions are such that employees do not perceive any
coercion of religious or non-religious behavior (or respond
as if such coercion is occurring), and should, where necessary,
take appropriate steps to dispel such misperceptions.
Examples
(a)
A supervisor may invite co-workers to a son's confirmation
in a church, a daughter's bat mitzvah in a synagogue, or
to his own wedding at a temple. But a supervisor should
not say to an employee: "I didn't see you in church this
week. I expect to see you there this Sunday."
(b)
On a bulletin board on which personal notices unrelated
to work regularly are permitted, a supervisor may post a
flyer announcing an Easter musical service at her church,
with a handwritten notice inviting co-workers to attend.
But, a supervisor should not circulate a memo announcing
that he will be leading a lunch-hour Talmud class that employees
should attend in order to participate in a discussion of
career advancement that will convene at the conclusion of
the class.
(c)
During a wide-ranging discussion in the cafeteria about
various non-work related matters, a supervisor states to
an employee her belief the religion is important in one's
life. Without more, this is not coercive, and the statement
is protected in the federal workplace in the same way, and
to the same extent as other constitutionally valued speech.
(d)
A supervisor who is an atheist has made it known that he
thinks that anyone who attends church regularly should not
be trusted with the public weal. Over a period of years,
the supervisor regularly awards merit increases to employees
who do not attend church routinely, but not to employees
of equal merit who do attend church. This course of conduct
would reasonably be perceived as coercive and should be
prohibited.
(e)
At a lunch-table discussion about abortion, during which
a wide range of views are vigorously expressed, a supervisor
shares with those he supervises his belief that God demands
full respect for unborn life, and that he believes it is
appropriate for all persons to pray for the unborn. Another
supervisor expresses the view that abortion should be kept
legal because God teaches that women must have control over
their own bodies. Without more, neither of these comments
coerces employees' religious conformity or conduct. Therefore,
unless the supervisors take further steps to coerce agreement
with their view or act in ways that could reasonably be
perceived as coercive, their expressions are protected in
the federal workplace in the same way and to the same extent
as other constitutionally valued speech.
(3)
Hostile Work Environment and Harassment. The law
against workplace discrimination protects federal employees
from being subjected to a hostile environment, or religious
harassment, in the form of religiously discriminatory intimidation,
or pervasive or severe religious ridicule or insult, whether
by supervisors or fellow workers. Whether particular conduct
gives rise to a hostile environment, or constitutes impermissible
religious harassment, will usually depend upon its frequency
or repetitiveness, as well as its severity. The use of derogatory
language in an assaultive manner can constitute statutory
religious harassment if it is severe or invoked repeatedly.
A single incident, if sufficiently abusive, might also constitute
statutory harassment. However, although employees should
always be guided by general principles of civility and workplace
efficiency, a hostile environment is not created by the
bare expression of speech with which some employees might
disagree. In a country where freedom of speech and religion
are guaranteed, citizens should expect to be exposed to
ideas with which they disagree. The examples below are intended
to provide guidance on when conduct or words constitute
religious harassment that should not be tolerated in the
federal workplace. In a particular case, the question of
employer liability would require consideration of additional
factors, including the extent to which the agency was aware
of the harassment and the actions the agency took to address
it.
Examples
(a)
An employee repeatedly makes derogatory remarks to other
employees with whom she is assigned to work about their
faith or lack of faith. This typically will constitute religious
harassment. An agency should not tolerate such conduct.
(b)
A group of employees subjects a fellow employee to a barrage
of comments about his sex life, knowing that the targeted
employee would be discomforted and offended by such comments
because of his religious beliefs. This typically will constitute
harassment, and an agency should not tolerate it.
(c)
A group of employees that share a common faith decides that
they want to work exclusively with people who share their
views. They engage in a pattern of verbal attacks on other
employees who do not share their views, calling them heathens,
sinners, and the like. This conduct should not be tolerated.
(d)
Two employees have an angry exchange of words. In the heat
of the moment, one makes a derogatory comment about the
other's religion. When tempers cool, no more is said. Unless
the words are sufficiently severe or pervasive to alter
the conditions of the insulted employee's employment or
create an abusive working environment, this is not statutory
religious harassment.
(e)
Employees wear religious jewelry and medallions over their
clothes or so that they are otherwise visible. Others wear
buttons with a generalized religious or anti-religious message.
Typically, these expressions are personal and do not alone
constitute religious harassment.
(f)
In her private work area, a federal worker keeps a Bible
or Koran on her private desk and reads it during breaks.
Another employee displays a picture of Jesus and the text
of the Lord's Prayer in her private work area. This conduct,
without more, is not religious harassment, and does not
create an impermissible hostile environment with respect
to employees who do not share those religious views, even
if they are upset or offended by the conduct.
(g)
During lunch, certain employees gather on their own time
for prayer and Bible study in an empty conference room that
employees are generally free to use on a first-come, first-served
basis. Such a gathering does not constitute religious harassment
even if other employees with different views on how to pray
might feel excluded or ask that the group be disbanded.
C.
Accommodation of Religious Exercise. Federal law
requires an agency to accommodate employees' exercise of
their religion unless such accommodation would impose an
undue hardship on the conduct of the agency's operations.
Though an agency need not make an accommodation that will
result in more than a de minimis cost to the agency, that
cost or hardship nevertheless must be real rather than speculative
or hypothetical: The accommodation should be made unless
it would cause an actual cost to the agency or to other
employees or an actual disruption of work, or unless it
is otherwise barred by law.
In
addition, religious accommodation cannot be disfavored vis-a-vis
other, non-religious accommodations. Therefore, a religious
accommodation cannot be denied if the agency regularly permits
similar accommodations for non-religious purposes.
Examples
(a)
An agency must adjust work schedules to accommodate an employee's
religious observance --
for
example, Sabbath or religious holiday observance -- if an
adequate substitute is available, or if the employee's absence
would not otherwise impose an undue burden on the agency.
(b)
An employee must be permitted to wear religious garb, such
as a crucifix, a yarmulke, or a head scarf or hijab, if
wearing such attire during the work day is part of the employee's
religious practice or expression, so long as the wearing
of such garb does not unduly interfere with the functioning
of the workplace.
(c)
An employee should be excused from a particular assignment
if performance of that assignment would contravene the employee's
religious beliefs and the agency would not suffer undue
hardship in reassigning the employee to another detail.
(d)
During lunch, certain employees gather on their own time
for prayer and Bible study in an empty conference room that
employees are generally free to use on a first-come, first-served
basis. Such a gathering may not be subject to discriminatory
restrictions because of its religious content.
In
those cases where an agency's work rule imposes a substantial
burden on a particular employee's exercise of religion,
the agency must go further: An agency should grant the employee
an exemption from that rule, unless the agency has a compelling
interest in denying the exemption and there is no less restrictive
means of furthering that interest.
Examples
(a)
A corrections officer whose religion compels him or her
to wear long hair should be granted an exemption from an
otherwise generally applicable hair-length policy unless
denial of an exemption is the least restrictive means of
preserving safety, security, discipline or other compelling
interests.
(b)
An applicant for employment in a governmental agency who
is a Jehovah's Witness should not be compelled, contrary
to her religious beliefs, to take a loyalty oath whose form
is religiously objectionable.
D.
Establishment of Religion. Supervisors and employees
must not engage in activities or expression that a reasonable
observer would interpret as government endorsement or denigration
of religion or a particular religion. Activities of employees
need not be officially sanctioned in order to violate this
principle; if, in all the circumstances, the activities
would leave a reasonable observer with the impression that
government was endorsing, sponsoring, or inhibiting religion
generally or favoring or disfavoring a particular religion,
they are not permissible. Diverse factors, such as the context
of the expression or whether official channels of communication
are used are relevant to what a reasonable observer would
conclude.
Examples
(a)
At the conclusion of each weekly staff meeting and before
anyone leaves the room, an employee leads a prayer in which
nearly all employees participate. All employees are required
to attend the weekly meeting. The supervisor neither explicitly
recognizes the prayer as an official function nor explicitly
states that no one need participate in the prayer. This
course of conduct is not permitted unless under all the
circumstances a reasonable observer would conclude that
the prayer was not officially endorsed.
(b)
At Christmas time, a supervisor places a wreath over the
entrance to the office's main reception area. This course
of conduct is permitted.
Section
2. Guiding Legal Principles. In applying the guidance
set forth in section 1 of this order, executive branch departments
and agencies should consider the following legal principles.
A.
Religious Expression. It is well-established that
the Free Speech Clause of the First Amendment protects government
employees in the workplace. This right encompasses a right
to speak about religious subjects. The Free Speech Clause
also prohibits the government from singling out religious
expression for disfavored treatment: "[P]rivate religious
speech, far from being a First Amendment orphan, is a fully
protected under the Free Speech Clause as secular private
expression," Capitol Sq. Review Bd. v. Pinette, 115
S. Ct. 2448 (1995). Accordingly, in the government workplace,
employee religious expression cannot be regulated because
of its religious character, and such religious speech typically
cannot be singled out for harsher treatment that other comparable
expression.
Many
religions strongly encourage their adherents to spread the
faith by persuasion and example at every opportunity, a
duty that can extend to the adherents' workplace. As a general
matter, proselytizing is entitled to the same constitutional
protection as any other form of speech. Therefore, in the
governmental workplace, proselytizing should not be singled
out because of its content for harsher treatment than non-religious
expression.
However,
it is also well-established that the government in its role
as employer has broader discretion to regulate its employees
speech in the workplace than it does to regulate speech
among the public at large. Employees' expression on matters
of public concern can be regulated if the employees' interest
in the speech is outweighed by the interest of the government,
as an employer, in promoting the efficiency of the public
services it performs through its employees. Governmental
employers also possess substantial discretion to impose
content-neutral and viewpoint-neutral time, place, and manner
rules regulating private employee expression in the workplace
(though they may not structure or administer such rules
to discriminate against particular viewpoints). Furthermore,
employee speech can be regulated or discouraged if it impairs
discipline by superiors, has a detrimental impact on close
working relationships for which personal loyalty and confidence
are necessary, impedes the performance of the speaker's
duties or interferes with the regular operation of the enterprise,
or demonstrates that the employee holds views that could
lead his employer or the public reasonably to question whether
he can perform his duties adequately.
Consistent
with its fully protected character, employee religious speech
should be treated, within the federal workplace, like other
expression on issues of public concern: In a particular
case, an employer can discipline an employee for engaging
in speech if the value of the speech is outweighed by the
employer's interest in promoting the efficiency of the public
services it performs through its employee. Typically, however,
the religious speech cited as permissible in the various
examples included in these guidelines will not unduly impede
these interests and should not be regulated. And rules regulating
employee speech, like other rules regulating speech, must
be carefully drawn to avoid any unnecessary limiting or
chilling of protected speech.
B.
Discrimination in Terms and Conditions. Title VII
of the Civil Rights Act of 1964 makes it unlawful for employers,
both private and public, to "fail or refuse to hire or to
discharge any individual or otherwise to discriminate against
any individual with respect to compensation, terms, conditions,
or privileges of employment, because of such individual's...religion."
42 U.S.C. sec. 2000e-2(a)(1). The federal government also
is bound by the equal protection component of the Due Process
Clause of the Fifth Amendment, which bars intentional discrimination
on the basis of religion. Moreover, the prohibition on religious
discrimination in employment applies with particular force
to the federal government, for Article VI, clause 3 of the
Constitution bars the government from enforcing any religious
test as a requirement for qualification to any office. In
addition, if a government law, regulation or practice facially
discriminates against employees' private exercise of religion
or is intended to infringe upon or restrict private religious
exercise, then that law, regulation, or practice implicates
the Free Exercise Clause of the First Amendment. Last, under
the Religious Freedom Restoration Act, 42 U.S.C. sec. 2000bb-1,
federal governmental action that substantially burdens a
private party's exercise of religion can be enforced only
if it is justified by a compelling interest and is narrowly
tailored to advance that interest.
C.
Coercion of Employees' Participation or Nonparticipation
in Religious Activities. The ban on religious discrimination
is broader than simply guaranteeing nondiscriminatory treatment
in formal employment decisions such as hiring and promotion.
It applies to all terms and conditions of employment. It
follows that the federal government may not require or coerce
its employees to engage in religious activities or to refrain
from engaging in religious activity. For example, a supervisor
may not demand attendance at (or a refusal to attend) religious
services as a condition of continued employment or promotion,
or as a criterion affecting assignment of job duties. Quid
pro quo discrimination of this sort is illegal. Indeed,
wholly apart from the legal prohibitions against coercion,
supervisors may not insist upon employees' conformity to
religious behavior in their private lives any more than
they can insist on conformity to any other private conduct
unrelated to employees' ability to carry out their duties.
D.
Hostile Work Environment and Harassment. Employers
violate Title VII's ban on discrimination by creating or
tolerating a "hostile environment" in which an employee
is subject to discriminatory intimidation, ridicule, or
insult sufficiently severe or pervasive to alter the conditions
of the victim's employment. This statutory standard can
be triggered (at the very least) when an employee, because
of her or his religion or lack thereof, is exposed to intimidation,
ridicule, and insult. The hostile conduct -- which may take
the form of speech -- need not come from supervisors or
from the employer. Fellow employees can create a hostile
environment through their own words and actions.
The
existence of some offensive workplace conduct does not necessarily
constitute harassment under Title VII. Occasional and isolated
utterances of an epithet that engenders offensive feelings
in an employee typically would not affect conditions of
employment, and therefore would not in and of itself constitute
harassment. A hostile environment, for Title VII purposes,
is not created by the bare expression of speech with which
one disagrees. For religious harassment to be illegal under
Title VII, it must be sufficiently severe or pervasive to
alter the conditions of employment and create an abusive
working environment. Whether conduct can be the predicate
for a finding of religious harassment under Title VII depends
on the totality of the circumstances, such as the nature
of the verbal or physical conduct at issue and the context
in which the alleged incidents occurred. As the Supreme
Court has said in an analogous context:
"[W]hether
an environment is 'hostile' or 'abusive' can be determined
only by looking at all the circumstances. These may include
the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance. The effect
on the employee's psychological well-being is, of course,
relevant to determining whether the plaintiff actually found
the environment abusive." Harris v. Forklift Systems
Inc. 510 U.S. 17, 23 (1993)
The
use of derogatory language directed at an employee can rise
to the level of religious harassment if it is severe or
invoked repeatedly. In particular, repeated religious slurs
and negative religious stereotypes, or continued disparagement
of an employee's religion or ritual practices, or lack thereof,
can constitute harassment. It is not necessary that the
harassment be explicitly religious in character or that
the slurs reference religion: It is sufficient that the
harassment is directed at an employee because of the employee's
religion or lack thereof. That is to say, Title VII can
be violated by employer tolerance of repeated slurs, insults
and/or abuse not explicitly religious in nature if that
conduct would not have occurred but for the targeted employee's
religious belief or lack of religious belief. Finally, although
proselytization directed at fellow employees is generally
permissible (subject to the special considerations relating
to supervisor expression discussed elsewhere in these guidelines),
such activity must stop if the listener asks that it stops
or otherwise demonstrates that it is unwelcome.
E.
Accommodation of Religious Exercise. Title VII requires
employers "to reasonably accommodate...an employee's or
prospective employee's religious observance or practice"
unless
such
accommodation would impose an "undue hardship on the conduct
of the employer's business." 42 U.S.C. sec. 2000e(j). For
example, by statute, if an employee's religious beliefs
require her to be absent from work, the federal government
must grant that employee compensation time for overtime
work, to be applied against the time lost, unless to do
so would harm the ability of the agency to carry out its
mission efficiently. 5 U.S.C. sec. 5550a.
Though
an employer need not incur more than de minimis costs in
providing an accommodation, the employer hardship nevertheless
must be real rather than speculative or hypothetical. Religious
accommodation cannot be disfavored relative to other, non-religious,
accommodations. If an employer regularly permits accommodations
for non-religious purposes, it cannot deny comparable religious
accommodation: "Such an arrangement would display a discrimination
against religious practices that is the antithesis of reasonableness."
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71
(1986).
In
the federal government workplace, if neutral workplace rules
-- that is, rules that do not single out religious or religiously
motivated conduct for disparate treatment -- impose a substantial
burden on a particular employee's exercise of religion,
the Religious Freedom Restoration Act requires the employer
to grant the employee an exemption from that neutral rule,
unless the employer has a compelling interest in denying
an exemption and there is no less restrictive means of furthering
that interest. 42 U.S.C. sec. 2000bb-1.
F.
Establishment of Religion. The Establishment Clause
of the First Amendment prohibits the government -- including
its employees -- from acting in a manner that would lead
a reasonable observer to conclude that the government is
sponsoring, endorsing, or inhibiting religion generally
or favoring or disfavoring a particular religion. For example,
where the public has access to the federal workplace, employee
religious expression should be prohibited where the public
reasonably would perceive that the employee is acting in
an official, rather than a private, capacity, or under circumstances
that would lead a reasonable observer to conclude that the
government is endorsing or disparaging religion. The Establishment
Clause also forbids federal employees from using government
funds or resources (other than those facilities generally
available to government employees) for private religious
use.
Section
3. General. These guidelines shall govern the internal
management of the civilian executive branch. They are not
intended to create any new right, benefit, or trust responsibility,
substantive or procedural, enforceable at law or equity
by a party against the United States, its agencies, its
officers, or any person. Questions regarding interpretation
of these guidelines should be brought to the Office of the
General Counsel or Legal Counsel in each department and
agency.
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