The federal appeals court that covers California recently ruled that a public employer violated employees’ free speech rights when it banned religious discussion and materials in the workplace. The decision highlights the need for public and private employers alike to exercise care in adopting policies that restrict employees’ religious activities at work.
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Ban on Religious Advocacy Unconstitutional
Monte Tucker, a deeply religious computer analyst with the California Department of Education, began signing his work with “SOTLJC,” meaning Servant of the Lord Jesus Christ. Even though no one had complained, his supervisors responded by instituting a broad policy prohibiting employees from engaging in written or oral religious advocacy at work. The policy also barred display of religious materials outside workers’ cubicles and placement of religious acronyms on official documents.
Tucker sued the Department, arguing the new policy violated his free speech rights-and the federal Ninth Circuit Court of Appeal agreed. The judges said that the restrictions on religious advocacy weren’t reasonable because: 1) they were not necessary to protect other workers’ rights; 2) they were too broad; and 3) no workplace disruption had occurred. Also, the Department was not allowed to pick and choose among employee postings, barring only religious messages while permitting information on all other subjects, both controversial and non-controversial.
Impact on Employers
Even though the Department’s policy was thrown out, there is still some room to limit employees’ speech and expression so long as the restrictions are carefully tailored. Here are some guidelines:
- Public employers. You can ban employees’ speech on matters of non-public concern, such as individual personnel disputes or grievances. But Joseph Wiley, a partner in the law firm of Wiley Price & Radulovich in Oakland, Calif., cautions that, if the discussion relates to a public concern, such as religion, politics, or social issues, you need to be careful. Generally you can restrict such speech only if necessary to maintain discipline or a professional work environment or to protect other workers’ rights. For example, you can discipline someone who is harassing co-workers with religious proselytizing or interrupting work to advocate on behalf of a ballot initiative.
In the Department of Education case, the court observed that if Tucker’s conduct had disrupted his or other employees’ work, it would probably have been permissible to discipline him. However, an outright ban on all religious speech still wouldn’t have been warranted.
The court noted that you can limit postings and notices to non-public areas. However, your rule should not make distinctions based on the content or viewpoint of the materials. In fact, the court pointed out that the Department’s policy would have been acceptable had it simply restricted all employee postings to bulletin boards or other areas not visible to the public.
- Private employers. Because there are different standards for private employers, the Department’s broad policy would probably have been legal in a private workplace. However, a California law that protects employees’ rights to political expression could make an outright ban on religious activity risky. That’s because some issues, such as abortion, have both religious and political overtones.
Finally, anti-discrimination rules bar you from having a policy that discriminates among religions. So, for example, if you allow employees to display Christmas mangers, you must also permit other religious symbols such as Hanukah menorahs.