Taking the Stand: Religious Discord in the Federal Sector Workplace

Religious Discord in the Federal Sector Workplace
By Michael Wolf

Lightbulb. Courtesy of Ron Flemmings In this election season, religion and its role in political discourse have been much debated. It should not be surprising that religion has also become a point of friction in America’s increasingly diverse workplaces. In some instances, these debates among employees have become adversarial and tendentious. The difficulties in preventing debates from turning into discord are felt most acutely in the public sector, where the First Amendment can limit an employer’s options for tamping down rhetorical excesses. As explained in this article, the courts have been far from unanimous in defining the boundaries of religious expression in the public sector workplace, especially in the federal setting. That failing has created uncertainty for both employers and employees.

Good News v. Hicks:
Defining the Problem
The Good News Employee Association was created by several employees of the city of Oakland, California, to engage in prayer and other religious activities. The group also posted a flyer on a workplace bulletin board advertising its activities and principles, including the belief that the “Natural Family is defined as a man and a woman.…” When a gay employee saw the flyer and complained, the employer instructed the association to remove the flyer, which it did. No one was disciplined. Members of the association sued, however, pointing out that the employee bulletin board previously had been used for posting a wide range of flyers on political, social, and religious topics (for example, hate crimes, Osama bin Laden, Christmas celebrations). The plaintiffs claimed their flyer was singled out solely because of its content conveying the association’s religious views, and that they had been denied their right of free expression under the First Amendment. The District Court for the Northern District of California and the United States Court of Appeals for the Ninth Circuit, in Good News Employee Association v. Hicks,[1] found the issue to be a “close” question, but concluded that the balancing of interests weighed in favor of the city’s right to remove the flyer.

This kind of dispute among employees has become fairly common in the workplace, leading to increased litigation. These cases have suggested a myriad of questions the courts have only begun to address. For example, what happens if a religious poster, similar to that in Good News, does not merely reference “natural marriage,” but also proclaims that any deviation from the “natural” order of things leads straight to perdition? Can gay employees complain to management that they are being subjected to a hostile work environment?[2] Conversely, what happens if a gay employee hangs a poster protesting the Catholic Church’s policy against gay marriage? Can a devout Catholic make a claim that the poster demeans and denigrates Catholicism? How much discomfort must coworkers tolerate for the sake of religious speech? How much turmoil must an employer tolerate?

The result reached by the courts in California is not exceptional, although other courts in similar cases have come down on the other side when applying the same balancing test. What is most interesting about the decision in Good News is the fact that the result might have been different if the incident had arisen in the federal sector. Indeed, the constitutional test for measuring limitations on religious speech in the federal sector is, in some circumstances, completely different from the test used when considering similar actions by state or local governments. But, doesn’t the First Amendment apply to both state and federal governments? Why doesn’t the same standard apply to both? The short answer: Congress. The longer answer requires a digression through Supreme Court decisions addressing the speech rights of public employees.

Pickering and the Speech Rights of Public Employees
When a governmental entity seeks to limit the First Amendment rights of a citizen, it often is required to justify its actions by pointing to a compelling governmental interest and, if one exists, proving that it utilized the least restrictive means of achieving its legitimate objective. [3] Limitations on the speech rights of government employees are judged under a very different standard as a result of the Supreme Court’s 1968 decision in Pickering v. Board of Education of Township High School District 205, Will County.[4]

In Pickering, the Court held that a teacher could not be fired for writing a letter to a local newspaper criticizing the Board of Education’s spending decisions and proposals for a tax increase. Because the teacher was speaking on a matter of “public concern,”[5] and because his comments had no discernible impact on his ability to fulfill his teaching duties, the Court held that the First Amendment barred his dismissal. The Court left open the possibility of dismissal in future cases if an employee were to knowingly or recklessly make false statements, if the statements had the effect of “seriously undermin[ing] the effectiveness of the working relationship” between the employee and his or her supervisor, or if the statements have impaired “harmony among coworkers.”[6]

In a series of later cases interpreting Pickering, the Court emphasized the need to balance the government’s right to operate an efficient workplace with the employee’s right to engage in activities protected by the First Amendment. In applying this balancing test, the Court has cautioned that the government’s operational needs can justify restrictions on an employee’s speech that would be unconstitutional if applied to ordinary citizens. In other words, a government employee trades away some of his or her speech rights when accepting employment.

If an employee is speaking as a citizen on a matter of public concern, then the public employer must show that restrictions on such speech are justified by the need to carry out its official functions. Under Pickering and its progeny, government employees do not have the protection of the compelling interest–least restrictive alternative test that might otherwise apply to governmental restrictions on First Amendment activity. Even when speaking as citizens, public employees are subject to a balancing test that recognizes the government’s need to maintain the efficiency of its operations.[7]

The Pickering test is complicated by its amorphousness and imprecision. How exactly should a court balance an individual’s right to free expression with a government’s need to operate efficiently? The Supreme Court’s guidance over the years has been less than illuminating. For example, it has stated that “private expression … may in some situations bring additional factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message, but also by the manner, time, and place in which it is delivered.”[8] The Court later expanded on this notion: “[E]mployee speech which transpires entirely on the employee’s own time, and in non-work areas of the office, bring different factors into the Pickering calculus. . . .”[9]

The Court realized that a one-size-fits-all balancing standard was not possible. It, therefore, advised lower courts to consider various factors: Would the employee’s speech have an adverse effect on discipline or workplace harmony? Does the employment relationship require personal loyalty? Have the employee’s statements impeded work performance or interfered in office operations?[10] Time and place factors are then thrown into this mathematical stew, with the admonition that they “may” or “might” affect the outcome of a decision. To characterize the Pickering test as a bit vague may be an act of charity. When the Supreme Court referred to a Pickering “calculus,” it was signaling a difficult balancing act borne out in subsequent litigation.

The uncertainty created in any Pickering situation is most apparent in the Court’s treatment of forward-looking policies that restrict speech. On the one hand, the Court states that the burden on the government when it proscribes particular categories of employee speech (i.e., when it imposes a prior restraint) is greater than when it merely disciplines employees after the fact. The Court has cautioned that a statutory restriction on employee speech must be supported by evidence of a “‘necessary impact on the actual operation’ of the Government.”[11] Mere speculation as to workplace disruption is not sufficient.[12] In another case, however, the Court insisted the judiciary must show “deference to government predictions of harm.”[13] Moreover, it has commented that it is not necessary “for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”[14] In other words, prescriptive, forward-looking policies that limit employee speech must satisfy a greater burden of justification, yet that burden requires only a “reasonable prediction” that workplace efficiency will be disrupted. How far is the leap from mere speculation to reasonable prediction?

All we can discern from the Supreme Court’s pronouncements is that the result in each case will be fact-specific. Little wonder, then, that the lower courts have had difficulty reaching a consensus as to an analytical framework for solving the increasingly complex equations presented by the Pickering calculus. The lack of unanimity increases exponentially when the courts must decide the limits of employee speech that has a religious component. Indeed, the courts cannot even agree whether Pickering is the proper guidepost for deciding such cases. This uncertainty has now been compounded by congressional intervention into religion wars.

Smith, RFRA, and Boerne:
Religious Speech
Prior to 1990, the compelling interest– least restrictive alternative test was applied to governmental action that restricted a citizen’s religious practices. That test applied even when the government was not specifically targeting religion, as long as the governmental action placed a “substantial” burden on a “central” religious tenet or belief.[15] In 1990 the Supreme Court reversed course, holding in Employment Division, Department of Human Resources of Oregon v. Smith[16] that a neutral law of general applicability—one that does not specifically target religion for regulation—should not be judged under the compelling interest–least restrictive alternative test. That test should only be used, according to the Court, when government directly targets religious beliefs or practices and thereby places a substantial burden on them.

Congress reacted to Smith by passing the Religious Freedom Restoration Act of 1993 (RFRA),[17] which explicitly stated its intent to legislatively overrule Smith. The law restored the compelling interest–least restrictive alternative test as a limitation on governmental actions that “substantially burden a person’s exercise of religion.”[18] The Supreme Court, however, had different thoughts. In the latest round of ping pong between the Court and Congress, it ruled in City of Boerne v. Flores that the RFRA is unconstitutional as applied to state and local governments.[19] It later ruled that the statute continues to be applicable to actions by the federal government.[20]

The Boerne decision has the effect of creating a federal–state dichotomy. State actions that burden religious speech in the workplace have mostly been decided under the Pickering balancing test. In the federal sector, however, the RFRA arguably requires application of the compelling interest test to an employer’s efforts to regulate religious expressions by its employees. What does this mean in practice?

When public sector employers decide to limit an employee’s religious expression in the workplace, the most common arguments made for the limitations are: (1) the employee’s actions run the risk of a lawsuit claiming that government is violating the Establishment Clause of the First Amendment or, at the very least, undermining the public’s faith in the religious neutrality of the government; (2) the employee’s actions run the risk of a hostile environment lawsuit under Title VII; and (3) the employee’s actions disrupt the workplace and impair productivity.

The classic case of an Establishment Clause violation arises when an employee proselytizes public clients. For example, in Berry v. Department of Social Services[21] the plaintiff was a county employee who helped welfare recipients enter the workforce. He discussed religion while meeting with clients and decorated his cubicle with various religious symbols. The employer told the plaintiff that he could discuss religion with coworkers, but not with his public clients. He also was instructed to remove religious materials from his work area, since that was where he met with his clients.

When the employee failed to follow the directive to maintain his work area free of religious items, he was reprimanded. He then took down the religious paraphernalia and filed charges with the Equal Employment Opportunity Commission (EEOC). He eventually sued the city for infringing his rights under Title VII of the 1964 Civil Rights Act[22] and the First Amendment.

Applying the Pickering test, the District Court for the Eastern District of California and the Ninth Circuit concluded in Berry that the city’s interest in avoiding an establishment of religion lawsuit outweighed the plaintiff’s interests, especially since he was able to express his religious views both inside and outside of the workplace. The only limitation placed was on the plaintiff’s ability to convey his religious beliefs to his public clients. Interestingly, the district court gratuitously noted that avoiding an establishment of religion lawsuit was a compelling governmental interest. While undoubtedly correct,[23] that statement was dicta. Nevertheless, it signaled that, even if the RFRA had applied to this case, the same result would have been reached.

The Berry decision should not be interpreted to mean that every public display of religion by an employee poses a risk of “establishing” religion. For example, an Orthodox Jew wearing a yarmulke, or a Catholic wearing a cross pendant, would not normally be subject to restrictions on the wearing of these items. Absent other forms of proselytizing, objects that merely display the wearer’s religious beliefs do not convey to the public that government is endorsing or supporting the employee’s religion. That result should be the same under either the RFRA or Pickering.[24]

With respect to the potential for hostile environment claims, the courts have tended to apply Pickering in a way that permits an employer to limit employee speech in situations where one employee’s espousal of religious views causes other employees to complain of harassment. For example, in Leslie v. Johnson[25] the plaintiff was fired after peppering a coworker with an unwanted stream of religious missives and comments, intermingled with equally unwanted romantic overtures. The court concluded that the plaintiff’s rights to free speech and religion were not violated since the state employer had a paramount interest, under Pickering, of avoiding a harassment claim from the coworker. The court noted that the Supreme Court has required employers to intervene in an employee–employee dispute before it becomes “sufficiently severe or pervasive to alter the conditions of the victim’s employment.”[26]

Other courts have held that enforcing antidiscrimination policies is a compelling interest, even when enforcement might infringe on religion.[27] As with concerns about the Establishment Clause, restrictions on public employee speech that clearly harasses other employees are likely to come to the same result, whether Pickering or the RFRA provides the analytical framework. Not all religious speech will rise to the level of creating a hostile work environment, but when it does, both state and federal employers are likely to be given the same degree of latitude in suppressing or disciplining such speech.

Unfortunately, clarity begins to fade when we come to the third example of religious speech cases—those in which an employee’s speech is not harassing, but is nevertheless disruptive or annoying to coworkers. What happens when an employee openly displays religious beliefs to coworkers, but engages in no overt proselytizing? What if some coworkers express displeasure at having to listen to those beliefs? What if some coworkers view the religious expressions as harassment, but they do not objectively rise to the level of a hostile work environment?[28] As explained above, with respect to certain religious symbols (yarmulke, cross pendant), not all displays are likely to invite a successful establishment of religion or harassment lawsuit. However, what if an employee’s religious beliefs take on an “us versus them” quality? For example, what happens when one employee’s antiabortion poster is deemed insulting to other employees having differing views on the subject? What happens when a religiously oriented poster explicitly or implicitly besmirches the values of gay employees? This leads us back to the Good News case.

Is Good News Bad News for Provocative Speech?
The facts in Good News are increasingly common in America’s workplaces, both in the private and public sectors. Employees who wish to express their religious convictions run up against other employees who find those expressions of faith to be offensive. In Good News, a lesbian employee protested that a poster proclaiming the virtues of the “natural family” and “family values,” and limiting marriage to that of between a man and a woman, was homophobic. Members of the Good News Employee Association confirmed in their depositions the “anti-homosexual import” of their positions on these issues. They also conceded that they had other opportunities during the work day to meet and express their views (during lunches or breaks, for example). The employer also advised that they could use the e-mail system to publicize their meetings, as long as they omitted “verbiage that could be offensive to gay people.”[29]

In the end, the district court invoked the Pickering balancing test and opined that “neither side has presented a strong case.”[30] It accepted that Good News members were attempting to speak on subjects of public concern, but observed that their ability to engage in religious discourse was not subjected to “wholesale muzzling.” They retained the right to engage in meetings and speech, including in their work premises. The city, on the other hand, was faced with objections from only one employee. The court characterized the comments in the Good News flyer as not being inflammatory or “fighting words.” The court accepted that the flyer had caused some friction in the workplace, but that “there is a difference between episodes of friction—which are the daily incidents of life in a pluralistic society—and disruption—which impairs the government’s ability to discharge its duties to its citizens.”[31]

Having described the city’s interest as being “slight,” the court nevertheless came down in favor of the city because it deserved “some leeway in fixing … employees’ attention on their tasks, free from upset stemming from public controversies having no bearing on the work of the employer.”[32] The court granted summary judgment for the city, commenting that the outcome might have been different if the plaintiffs had been disciplined for their actions.

The Ninth Circuit, in a very brief opinion, accepted the applicability of Pickering and affirmed the district court decision. It concluded that the only curtailment of employee First Amendment rights was the removal of the flyer, with instructions not to repost it without editorial changes. The Circuit Court found these actions to constitute “minimal interference with appellants’ free speech rights.”[33]

One might initially ask whether Good News should have been decided under the compelling interest test, rather than the Pickering standard. The plaintiffs might have argued that their flyer, while provocative, could not reasonably have been interpreted as creating a hostile environment or as violating any antidiscrimination law. Indeed, the district court did not find that the city’s censorship of the Good News flyer was necessary to avoid a violation of any law. If the city’s action was not necessary to enforce a law of general applicability, what was the motivation then? The plaintiffs could have argued that the city acted solely because it wished to proscribe the religious content of the Good News flyer.

In Smith, the Supreme Court limited itself to revising the standards for reviewing neutral laws of general applicability that tangentially limit religious practices. The Court did not alter the precedent holding that governmental actions that are intended to and, in fact, restrict religious activity must satisfy the compelling interest–least restrictive alternative test. Should the latter standard have governed Good News?

The confusion over which standard to apply is understandable, since Pickering and the compelling interest line of cases seem to reside in parallel constitutional universes. However, the reasons for not overlooking the compelling interest test can be discerned through a consideration of two hypothetical, albeit realistic, cases. In the first case, an employer adopts a rule that employees may post personal notices on an employer-maintained bulletin board, but not any posting that is likely to violate Title VII’s ban on conduct creating a hostile work environment. Disciplinary action against an employee who breaks that rule by posting an antagonistic flyer would represent an effort to enforce a rule of general applicability. If the flyer addressed a matter of public concern, one could argue that Pickering should provide the appropriate analytical standard for deciding the constitutionality of such a disciplinary action.

The second hypothetical involves an employer who permits employees to post various notices on a bulletin board, but specifically precludes all religious materials out of concern that any religious communication will be disruptive. Employees who are unable to post religious notices under this prospective ban could argue that their communications are being squelched solely because of their religious content, not because of a need to enforce other public laws. In this second case, the employer is singling out religion for special treatment and, therefore, may be required to justify its actions under the compelling interest test.

Whether the Pickering balancing test should be the proper analytical measure for deciding cases like Good News must be considered in future litigation. Unfortunately, this question has not yet been addressed squarely by the courts.[34] Nor is it clear if decisions under the Pickering test would necessarily come to different results when analyzed under the compelling interest test. For the time being, the courts and many parties seem to reflexively cite Pickering as the governing standard for restrictions on public employee speech, even when the speech being restricted is religious in nature. Moreover, a review of the existing precedent suggests that most courts applying the Pickering analysis have largely favored employers in balancing their interests against employee interests. The courts seem inclined to give public employers significant latitude in devising restrictions on religious speech that are intended to avoid disruptions of working relationships, or to ensure effective relations with members of the public who are being served.[35]

The Federal Sector
The foregoing precedent leaves two important, unresolved questions: How would Good News have been decided had it arisen in the federal sector? How can a public employer’s interest be both “slight,” as the courts found, and compelling, as required by the RFRA?

While the district court in Good News found the city’s restrictions to be narrowly tailored, it clearly did not find its interests compelling. It ruled in favor of the city only because of the leeway accorded employers under Pickering. However, if predictions of disruption in the workplace are sufficient to support the employer under a Pickering analysis, are such findings also sufficient to find a compelling interest? In fact, given the district court’s factual findings in Good News, it is difficult to envision how that court could have reached the same outcome under the RFRA.

Whether other courts will support the federal employer or employee in future cases cannot be predicted, since many courts have chosen to ignore the RFRA when rendering decisions. A few principles, however, provide some guidance. Many courts, for example, are reluctant to accord a “heckler’s veto” over speech protected by the First Amendment.[36] Can one employee’s annoyance over derogatory speech be catapulted into a compelling governmental interest, even when the speech does not create a hostile work environment? The Supreme Court has pointedly cautioned that hostile work environment claims under Title VII should not be used to create a “general civility code” in the workplace.[37] More to the point, the Clinton administration issued in 1997 the “Guidelines on Religious Exercise and Religious Expression in the Federal Workplace,” which cautioned agencies that they should exercise their power over employee speech with “restraint,” keeping in mind that “Americans are used to expressions of disagreement on controversial subjects, including religious ones.”[38] These principles point in the direction of judicial protection for employees under the RFRA and a concomitant increased burden on the federal employer.

One case suggesting such an outcome is Lister v. Defense Logistics Agency,[39] in which a federal agency told an employee to remove a flyer from a bulletin board routinely used by employees. The flyer included comments criticizing the Combined Federal Campaign (CFC), a charitable fundraising program for federal employees, because “your money may go to support the following – *abortion on demand * abortion for teens * sexual promiscuity * homosexual agenda * new age mysticism.” The employee stated that his flyer was motivated by sincere religious beliefs and filed a charge of discrimination with the EEOC. The essence of his complaint was that the bulletin board was used for all sorts of employee notices, including one supportive of the CFC. In that context, the plaintiff argued that the employer’s policy of banning religious and ideological materials and campaigns during work hours was not content-neutral; instead, he argued, it unconstitutionally singled out religion for prohibition.

The District Court for the Southern District of Ohio, Eastern Division, found that the employer was not required to maintain a bulletin board, but, once it did so and made it available to virtually all noncommercial messages, it could not exclude religious materials. The court concluded that the restriction on religious messages was unconstitutional.[40] Interestingly, the court also concluded that, in the absence of an actual disruption, the agency could not rely on the potential for disruption: “The mere speculative claim of potential for disruption of the workplace is an insufficient basis by itself for a limitation of otherwise protected speech.”[41] The court abjured the “leeway,” “latitude,” and “reasonable predictions” that other courts have accorded to employers under Pickering. The court did not address the RFRA (an unfortunate oversight), relying instead on Supreme Court decisions holding that the government may not censor or exclude religious speech while permitting similar types of noncommercial speech in the same forum.[42] However, there can be no doubt from the decision that the court would not have found a compelling governmental interest under the RFRA in removing the flyer. It is also of interest that the agency appealed this decision to the United States Court of Appeals for the Sixth Circuit, and later withdrew its appeal, leaving the district court decision in place.

As a result of the RFRA and the Supreme Court’s Boerne decision, the federal government is facing a much higher burden of proof in religious accommodation cases than do state and local governments. The latter entities can restrict an employee’s religious expressions provided they meet the requirements of the Pickering balancing test, under which a court must accept “reasonable predictions” of harm to the public or employer’s interest if it fails to take action against the employee. Moreover, employees are protected under Pickering only if they are speaking on matters of “public concern.” It is not a foregone conclusion that the courts will find all religious speech to be of public concern, and some courts have already concluded that certain forms of religious expression are purely private matters.[43] A state government has a relatively free hand in proscribing “private” religious speech as part of a neutral policy that does not single out religious discourse for special treatment.

Under the RFRA, the federal government, in contrast, may restrict its employees’ right of religious expression only if it identifies a compelling interest and if it utilizes the least restrictive means of protecting that interest. In addition, an individual’s First Amendment right to practice or espouse religion is not limited to matters of public concern. Personal expressions of faith are protected by the First Amendment. Perhaps, over time, the courts will apply the RFRA test in such a way that it will produce the same results as reached under Pickering. Such results are far from assured, however. As in Lister, it is at least as likely that there will be a fundamental difference between the latitude accorded employers under Pickering and the more limited leeway that will be given to a federal agency trying to comply with the RFRA. Whether this is an appropriate outcome needs to be debated—but it is a debate the courts have avoided.

For the time being, a few predictions for the federal sector are probably fairly safe. First, the RFRA should provide the prevailing standard for employees and employers, although the contours of the standard will remain unclear until there is further judicial interpretation. Second, employee expressions of religious views will continue to be proscribed when directed to the public in ways that are likely to violate the First Amendment’s Establishment Clause. Third, religious speech that will likely create a hostile work environment can be censored, and the employer’s censorship (or disciplinary action) will likely be met with judicial approval. Fourth, both employers and employees may need to show tolerance for religious speech that is provocative, but that falls short of actionable harassment or an Establishment Clause violation. This last category has the greatest potential for deviation from results under Pickering. It is also a type of speech that is prone to divisiveness. The courts must sort out the standards they will apply to the latter cases under the RFRA.[44] These standards are not mere legalistic formulas. They have practical consequences for employees, employers, and unions, all of whom deserve to know how the First Amendment will apply to them. In the meantime, one can only hope that both employers and employees will exercise common sense and civility when the inevitable religious conflicts arise.

Notes
[1] Good News Employee Association v. Hicks, 2005 U.S. Dist. LEXIS 5270 (N.D. Calif. 2005), aff’d 223 Fed. Appx. 734, 2007 U.S. App. LEXIS 5514, 25 I.E.R. Cas. (BNA) 1254 (9th Cir. 2007).
[2] See Meritor Savings Bank v. Vinson, 477 U.S. 576 (1986), in which the Supreme Court held that employees in a protected category have the right to be free of harassment that is so severe or pervasive as to create a hostile work environment that alters the conditions of employment.
[3] See, e.g., Thomas v. Review Board of Indiana Employment Security, 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).
[4] 391 U.S. 563 (1968).
[5] When employees speak on matters of private concern (e.g., internal office issues), they are not entitled to constitutional protection under Pickering. Garcetti v. Ceballos, 547 U.S. 410 (2006).
[6] 391 U.S. at 570.
[7] Connick v. Myers, 461 U.S. 138 (1983).
[8] Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415 n. 4 (1979).
[9] Connick v. Myers, 461 U.S. at 153 n.13 (1983).
[10] Pickering v. Board of Education, 391 U.S. at 569. See also Akridge v. Wilkinson, 178 Fed. Appx. 474 (6th Cir. 2006).
[11] United States v. National Treasury Employees Union [NTEU], 513 U.S. 454 (1995), quoting Pickering, 391 U.S. at 571. In NTEU, the Court rejected Congress’ effort to bar all executive branch employees from receiving honoraria for speeches and articles, even when those activities were unrelated to their jobs and on matters of public concern.
[12] NTEU, 513 U.S. at 476.
[13] Waters v. Churchill, 511 U.S. 661, 673 (1994).
[14] Connick, 461 U.S. at 152.
[15] Wisconsin v. Yoder, 406 U.S. 205 (state’s universal education law could not be constitutionally enforced against Amish families with religious objections to the law).
[16] 494 U.S. 872 (1990). Smith involved a drug law’s prohibition against the use, inter alia, of peyote, which is a drug used in the religious ceremonies of certain Native Americans.
[17] 42 U.S.C. § 2000bb.
[18] Id.
[19] 521 U.S. 507 (1997).
[20] Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006). See also Francis v. Mineta, 2007 U.S. App. LEXIS 23740 (3rd Cir. 2007) (RFRA continues to apply to federal government, but plaintiff is still required to comply with the procedural requirements of Title VII); Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006) (RFRA applies to a dispute between private litigants in which plaintiff claimed that a federal law (ADEA) placed a substantial burden on the exercise of religion).
[21] 447 F.3d 642 (9th Cir. 2006).
[22] 42 U.S.C. § 2000e, et seq.
[23] See Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 492 U.S. 573 (1989); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (avoiding an Establishment Clause violation may be a compelling interest justifying restrictions on expressions otherwise protected by the First Amendment).
[24] See, e.g., Draper v. Logan County Public Library, 403 F. Supp. 2d 608 (W.D. Ky. 2003) (library could not compel employee to stop wearing a cross necklace, since it did not disrupt the workplace and did not, by itself, cause library to violate Establishment Clause). Cf. Daniels v. City of Arlington, Texas, 246 F.3d 500 (5th Cir. 2001) (police force could direct officer not to wear cross pin on his uniform; wearing of pin was not a statement of “public concern” and therefore not protected by Pickering). As a general matter, the courts tend to be much more lenient with law enforcement agencies embroiled in disputes over the regulation of religious practices and clothing.
[25] 2006 U.S. Dist. LEXIS 24064 (S.D. Ohio 2006), aff’d, 2007 U.S. App. LEXIS 17775 (6th Cir. 2007).
[26] Leslie v. Johnson, 2006 U.S. Dist. LEXIS at *45, citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
[27] Lumpkin v. Brown, 109 F.3d 1498 (9th Cir. 1997).
[28] Meritor Savings Bank v. Vinson, 477 U.S. 576 (1986).
[29]2005 U.S. Dist. LEXIS 5270 at *6.
[30] Id. at *25
[31] Id. at *25.
[32] Id. at *27.
[33] 223 Fed. Appx. at 735.
[34] Cf. Knight v. State of Connecticut Department of Public Health, 275 F.3d 156 (2d Cir. 2001). In Knight, two state employees were instructed to stop proselytizing clients of their Department. They argued, based on Smith, that a strict scrutiny test, rather than Pickering, should apply. In a somewhat convoluted rationale, the Second Circuit concluded that Pickering provided the governing standard, although the court also concluded that avoiding an Establishment Clause violation gave the State a compelling interest in limiting the employee’s speech.
[35] See, e.g., Piggee v. Carl Sandburg College, 464 F.3d 667 (7th Cir. 2006) (public college could prevent teacher from disseminating a religious pamphlet describing the sinfulness of homosexual behavior).
[36] See, e.g., Melzer v. Board of Education of the City School District of the City of New York, 336 F.3d 185 (2d Cir. 2003), cert. denied, 540 U.S. 1183 (2004).
[37] Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
[38] Issued on August 14, 1997, reprinted in Wolf, Friedman, Sutherland, Religion in the Workplace: A Comprehensive Guide to Legal Rights and Responsibilities (ABA, 1998) at Appendix H.
[39] 482 F. Supp. 2d 1003 (S.D. Ohio, 2007).
[40] 482 F. Supp. 2d at 1012. The court also held that the employing agency had violated Pickering because the employee’s comments in the flyer were not “derogatory or insubordinate towards superiors.” One can question the accuracy of this interpretation of Pickering. Other courts have not limited an employer’s interest to prohibiting “derogatory or insubordinate” comments.
[41] Id.
[42] See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993).
[43] See, e.g., Borden v. School District of the Township of East Brunswick; Case No. 06-3890 (3d Cir. April 15, 2008) (high school football coach who participated in student-led prayer was not communicating on an issue of public concern); Nichols v. Caroline Bounty Board of Education, 114 Fed. Appx.576 (4th Cir. 2004)(public school teacher who injected religion into class assignments was not addressing “issues of political, social or other concern to the community”).
[44] The need for judicial clarification is exemplified by the differing approaches of the Second and Third Circuits to RFRA claims involving employment. In Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2004), the Second Circuit concluded that the RFRA amended the Age Discrimination in Employment Act and must be applied to claims arising under that law. The Third Circuit, however, has held that Title VII, not the RFRA, provides the exclusive remedy for religious discrimination claims brought by federal employees. Francis v. Mineta, 505 F.3d 266 (3rd Cir. 2007).

Michael Wolf is a Washington, D.C.-based arbitrator and mediator of labor, employment, and securities disputes. He is also co-author of the book Religion in the Workplace: A Comprehensive Guide to Legal Rights and Responsibilities (ABA, 1998).

Mr. Wolf would like to thank the following persons who reviewed and provided comments on prior drafts of this article: Reid Cox, Jodi Danis, Meir Feder, Charles Morse, and Ed Passman.