Lawsuits: Stop exercising your religion on me.
Posted: Wed Mar 11, 2015 2:49 pm
A child daycare center and a used car dealership are accused of firing employees for failing to submit to proselytizing.
Source: NJLJEmployers Face Novel Suits Over Proselytizing Co-Workers
Charles Toutant, New Jersey Law Journal
March 10, 2015
An employer’s obligation to balance the right to religious expression at work and the right to be free of unwelcome proselytizing by co-workers is the focus of a pair of cases in federal court in Camden, New Jersey.
Employers in both cases face potential liability for failing to heed workers’ complaints about on-the-job religious recruitment from colleagues. The suits bring claims for religious discrimination and religious harassment under Title VII.
Lawyers who focus on religious issues in the workplace said typical religion-related work disputes concern the right to wear religious garb on the job or modifying work schedules to allow attendance at services. The two latest suits could be instructive because suits about religious outreach from co-workers are less common, and little case law is available to pinpoint where to draw the line between one worker’s right to religious expression and another’s right to be free of harassment, according to lawyers familiar with such issues.
The latest case, Strang v. Tri-County Community Action Agency, was filed Feb. 24 by a preschool teacher who claims she was ordered to undergo a psychiatric evaluation and then fired after complaining about co-workers’ aggressive proselytizing. Strang brings claims of religious discrimination and religious harassment under Title VII, disability discrimination and hostile work environment under the Americans with Disabilities Act, retaliation under Title VII and the ADA.
Another case, Haughey v. Carsense N.J., was filed in August 2014 by a manager at a used car lot who claimed he was fired after resisting invitations to pray with co-workers and read the Bible during the workday. Haughey brings claims under Title VII for religious discrimination.
“Your right to proselytize stops at the rights of others not to be proselytized,” said Kevin Costello, a labor and employment lawyer for Costello & Mains in Mount Laurel, New Jersey, who is not involved in either case. “For an employer, it’s a difficult thing to decide when the appropriate, Constitutionally-protected right to express one’s sincerely held religious belief cross the line and becomes hostile, intimidating and abusive to others who don’t share that belief.”
Expressions of faith in the workplace are “a slippery slope” for employers, Costello said—wearing a crucifix or a chador or taking prayer breaks during the day are “no problem” but when an employee extols his faith to others, the employer is at risk, he said.
In addition to workers promoting religious beliefs and concepts to others who don’t share them, another flash point is when one worker’s exercise of faith attacks a protected classification under discrimination laws, such as ethnicity, race or national origin or perceived or actual sexual orientation, Costello said. Claims that such expressions create a hostile or intimidating workplace are as valid as claims that someone’s own religion is being attacked, Costello said.
Michael Homans, a labor and employment lawyer at Flaster/Greenberg in Cherry Hill, New Jersey, who also was not involved in either case, expressed a similar sentiment.
“Just like the concept of the separation of church and state, I think most employers and employees want a separation between church and work, even though that is not strictly required by the law,” he said.
Employers have a duty to accommodate religious beliefs and practices to the extent that the accommodation doesn’t cause a hardship to the employer, Homans said. For example, employers generally should provide a break for a Muslim to pray at certain hours if it’s not an undue hardship, he said.
But an employer receiving a complaint of religious harassment has a duty to investigate, Homans added. As with a complaint of sexual harassment, religious harassment can’t be ignored, he said.
“If an employee gives a signal that, ‘This proselytizing is offending me,’ the employer needs to make sure it stops with regard to that employee and respect that employee’s right to be free from harassment based on religion,” Homans said.
Handling such situations properly is “really showing sensitivity in the workplace and realizing both sides have rights. As long as those rights are sensitively accommodated, it’s usually not a major issue,” he said.
Religious expressions at work sometimes withstand challenges by objectors, said Douglas R. McKusick, senior staff attorney for the Rutherford Institute, a Charlottesville, Virginia, nonprofit that advocates for religious liberty. McKusick, who also was not involved in the Strang or Haughey cases, cited the example of someone who wishes someone “a blessed day.” But where to draw the line is unclear, he said.
“It’s fuzzy. It all depends on the circumstances—how the proselytizing is done, what the interest of the employee who might object is—I don’t think there’s any real clear line,” said McKusick.
McKusick said employers should err on the side of allowing unfettered religious expression in the absence of any concrete harm, such as tension in the workplace or scaring away customers. If an employer can say proselytizing in the workplace is going to cost it a valuable employee and create disruption, a court would likely say a restriction is warranted, he said.
Employees who suffer a hostile work environment due to proselytizing by colleagues can make a case for damages under the right circumstances, McKusick said. But a showing would have to be made that the employer knew about the issue, that the unwelcome conduct was pervasive and went on for a long time, he said.
In Strang, plaintiff Krisdy Strang, a preschool teacher, claims two fellow workers made numerous attempts to convert her to their religious beliefs and began harassing her when she resisted. Strang, who describes herself as agnostic, said her colleagues would read passages of Scripture to her and asked her questions about them. On one occasion, the suit says, when Strang said she was not interested, she was told by the co-worker that she had “sold her soul to the devil.” Strang also clashed with colleagues over the religious music they played and posters with religious messages they hung on walls. Strang says she complained to her supervisors but no action was taken.
The proselytizing co-workers harassed her in numerous ways, including hiding work she had completed and spraying perfume in her presence even though they knew she was bothered by such scents, the suit alleges. Strang was dismissed in March 2011, allegedly for criticizing a co-worker’s weight. But she claims in her suit that the co-worker asked her for help in avoiding unhealthy foods, and says the true reason for her firing was because she complained about the unwelcome religious overtures.
Strang’s former employer, Tri-County Community Action Agency, has not responded to the suit, and officials there did not return calls about the case.
In Haughey, plaintiff Joseph Haughey, a used car lot manager, claims he was fired after objecting to requests that he attend prayer meetings, lead co-workers in prayer, keep a Bible on his desk and study it during the workday. He maintains that his religious beliefs are a private matter. The defendant, Car Sense of Westampton, New Jersey, has denied the allegations in court papers.
