religion-businessAs dinner-table conversation, it’s often considered taboo. And while many extended families do their best to avoid the topic of religion during Thanksgiving dinner, ignoring it in business could lead to misunderstandings and even litigation, according to some local experts.

Curtis Graves is a staff attorney with Mountain States Employers Council, which provides expertise in employment law and human resources.

Graves said religion in the workplace is always a touchy subject, especially around the holidays.

“We do occasionally see objections to religious worship in the workplace around the holiday season,” he said. “The approach for employers is simple: Either don’t allow any religious observance or, if you’re going to put up a Christmas tree, also be sure to allow a menorah.”

If everybody is OK with sharing religious symbolism and gestures, “inclusiveness is the better way to go,” Graves said. “If people are encouraged or allowed to participate, you’ll probably have a happier workforce.”

As official grievances go, Graves said religion makes up a very small portion of cases that make it to court.

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“Most cases never make it to an official grievance,” he said. “In 2015, [the most frequently litigated cases involved] race, then [sexual discrimination]. Religion was ranked No. 5, at 3.9 percent of all cases.”

But Graves said overt preaching in the workplace can be a problem and, while Christmas has gradually become a more secular holiday, “there are those who take it very seriously and who will preach [that] a particular religious bent is correct to the exclusion of all others. It happens a few times year.”

Employers aren’t permitted to proselytize in a public workplace, or they risk being accused of religious discrimination, Graves said, adding the one exception would be for organizations that openly represent a particular religious affiliation.

TIMES ARE CHANGING

Eric Kniffin is an attorney with Lewis Roca Rothgerber Christie’s religious institutions practice group. The group’s clients are primarily religious institutions, but Kniffin said he sometimes works with secular employers.

“Religious institutions are different than businesses because, as a general matter, religious institutions might say all employees must share their religious faith,” he said. “Or at least respect and not oppose their religious beliefs. Working for a religious institution is like working for Greenpeace or the Sierra Club, where you’d expect broad support of environmental causes. It would be normal in that environment to have posters promoting a certain perspective.

“Religion is not that different,” he continued. “People can get more prickly about it, but religion is like just another political perspective.”

Litigation, Kniffin said, often involves employers demanding employees reflect a religious organization’s views or that they adhere to lifestyle requirements.

“Say someone works as a musician at a Catholic parish, and they’re entering into a same-sex marriage. Does the parish have to continue to employ them?” Kniffin said. “It depends on how closely the employee is linked to the organization’s religious mission.”

In 2012, as a result of hearing the case of Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, the U.S. Supreme Court ruled 9-0 stating the constitution protects religious organizations’ rights to “control the people who help teach and disseminate their message,” Kniffin said.

But there is no bright-line rule regarding a particular position’s impact, he said, adding a pastor would obviously fall under that law, but other professions aren’t as clear.

While there are gray areas, “the logic behind it is easy to understand,” Kniffin said. “How can a religious organization exist if it can’t control the people who are fundamentally responsible for disseminating their religious message? There’s been a lot of litigation around that in the last few years, especially with the legalization of same-sex marriage.”

NEW SHERIFF

There has been significant discussion since this year’s presidential election concluded regarding whether gender, sexuality, religion and employment issues will receive more attention under President-elect Donald Trump’s administration.

“It’s too hard to say right now,” Kniffin said. “I would say that some of the more outrageous things Trump has said aren’t realistic policy proposals.

“The First Amendment protects freedom of speech, religion and the press in a robust way. To think Trump would issue an executive order to change those things is not realistic.”

Kniffin said, though, that he expects to see fewer religious freedom cases brought by employers under a Trump administration.

“As employer litigation goes, there has been nothing close to the scale we’ve seen over ObamaCare and mandated contraception,” he said, adding that resulted in more than 100 lawsuits nationwide.

“That [law] was [pushed] through [by] administrative actions that were really insensitive to religious concerns — and unnecessarily so,” he said. “I have reason to believe the Trump administration will be more accommodating to the needs of religious organizations and will be willing to make exemptions or accommodations that the Obama administration wasn’t. I think there will be less aggression against religious employers and a good amount of litigation will fall away.”

BE YOURSELF?

The Citizens Project is a local nonprofit 501(c)3 “dedicated to defending and promoting equality, the separation of church and state and respect for diversity,” according to its website.

Deborah Walker, executive director, said the organization is especially involved in religious issues impacting the public sector, but added inclusivity should be practiced at every organization, private or public, secular or religious.

“Discrimination is the line,” Walker said. “We believe society is a better place because of our plurality of viewpoints. That’s what makes a community great.”

People should be free to express themselves in the workplace, she said, but within reason.

“Maybe people express themselves through religion, and I think that’s great, but the moral line you shouldn’t cross is when people feel uncomfortable or discriminated against because of religion.”

If a business’s belief structure is transparent, employees are less likely to be caught by surprise and also less likely to take offense or legal action.

Someone working at a Christian bookstore should expect Christianity to be common topic of discussion, she said. “But that Christian bookstore owner will have a richer work environment if they are open to hiring people of other faiths.”

Walker said, “employees are going to thrive in an environment where they don’t feel constrained or judged.”

As for Trump’s administration, Walker said her organization will be watching closely at a state and local level to ensure discriminatory practices don’t become law.

“We’ve already heard reports … of hostility in public schools, as well as anti-Semitism and anti-Islamic comments toward students,” she said. “My main concern is people have been emboldened by this election.”

Walker said her fear is that “discriminatory, hateful behavior is made acceptable.

“We’ve seen instances of hateful rhetoric being overlooked in schools,” she said. “Where are kids getting this behavior? From adults — and those adults work in our business community.”