Regulating Employee Speech Under Garcetti and its Progeny: Political Speech, Academic Freedom, and Religious Expression

Transcription

1 Regulating Employee Speech Under Garcetti and its Progeny: Political Speech, Academic Freedom, and Religious Expression Michael Smith, Lozano Smith, Fresno, CA Presented at the 2017 School Law Seminar, March 23-25, Denver, Colorado The NSBA Council of School Attorneys is grateful for the written contributions of its members. Because Seminar papers are published without substantive review, they are not official statements of NSBA/COSA, and NSBA/COSA is not responsible for their accuracy. Opinions or positions expressed in Seminar papers are those of the author and should not be considered legal advice National School Boards Association. All rights reserved.

2 NSBA Council of School Attorneys 2017 School Law Seminar Regulating Employee Speech Under Garcetti and its Progeny: Political Speech, Academic Freedom and Religious Expression By Michael E. Smith, Partner Dulcinea Grantham, Partner

3 I n 2016, the country experienced a national election where emotions ran high and opinions were both strongly held and frequently shared. Over the course of the electoral contest, Americans saw professional athletes refuse to stand for the national anthem, friends and colleagues post scathing observations of political candidates on social media, minority and religious groups experiencing direct attacks and politicians on all sides attacking one another on a level never before seen. School districts saw the same passion and anger displayed on their campuses, by both students and employees. With the country still deeply divided, tensions will likely remain high. So how are school districts to balance their employees right to express their views on matters of public concern with employers right to maintain order in the workplace? These times challenge traditional notions of free speech and increase the tension between these rights and the workplace. This article attempts to provide guidance to assist school districts in navigating this rocky terrain. This article also provides guidance to help school districts, whose employee ranks and student populations are increasingly diverse, to balance correctly employees right to exercise freely their religious beliefs and practices with districts need to avoid undue hardships. I. INTRODUCTION The First Amendment to the United States Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people 1

4 peaceably to assemble, and to petition the government for a redress of grievances. Most states have adopted similar protections for their citizens. These constitutional guarantees of free speech and religion run to every American citizen and grant each of us broad rights to speak and to practice any religion with limited exceptions, such as restrictions on the time, place and manner of the speech. Public employee speech has become a controversial issue, because while public employees have a right to First Amendment protection, their employers have a duty to maintain efficient operations. Within the Supreme Court jurisprudence on free speech rights, a number of cases specifically address the speech rights of public employees and when and how their speech may be regulated. This paper will review the legal framework for determining whether a public employee s speech and religious exercise is protected by the First Amendment and will also examine how the courts have balanced limits on employee speech and religion with academic freedoms. This paper will detail the factors that school districts should consider when regulating employee s free speech and religious practices. II. PUBLIC EMPLOYEE SPEECH THE LEGAL FRAMEWORK The Supreme Court has addressed the issue of public employee free speech rights in a series of cases. These cases, read together, form the general approach the courts take when evaluating a First Amendment claim regarding a public employee s speech. A. Pickering v. Board of Education, 391 U.S. 563 (1968) The first critical case concerning public employee speech is Pickering v. Board of Education. In Pickering, a school district dismissed a teacher for writing to the local 2

5 newspaper a letter attacking a number of the district s policies and actions, among other things. After the letter was published, the school board terminated the teacher, claiming that his letter was detrimental to the efficient operation and administration of the schools of the district. The teacher sued the school district, claiming that his letter was protected speech under the First Amendment. The school district argued that the letter not only disrupted the district s operations, but also that the statements made in the letter were false. After weighing the interests of the school district in promoting the efficiency of public services it provides against the teacher s interest in commenting on matters of public concern, the Supreme Court held that the dismissal was unlawful. The Court found no evidence that the teacher s letter impeded the teacher's proper performance of his daily duties in the classroom or... interfered with the regular operation of the schools generally. 1 Public employees have a First Amendment right to speak on matters of public interest or public concern. B. Connick v. Myers, 461 U.S. 138 (1983) Following Pickering, the Supreme Court again addressed the issue of employee speech in Connick v. Myers. In Connick, an assistant district attorney was transferred to another section of the office. She was so upset by the transfer that she created a questionnaire to colleagues that addressed issues including office morale, confidence in superiors and pressure to work on political campaigns. She was terminated from U.S. 563, (1983). 3

6 employment in part for distribution of the questionnaire. The Supreme Court examined the questionnaire and determined that most of it dealt with matters that were not of public concern, with the exception of the question related to pressure to work on political campaigns. The Court noted that the employee s actions occurred while at work, supporting her employer s fears that the functioning of his office was endangered. Due to the disruptive nature of the speech, the Court concluded that the termination did not violate the First Amendment. The Court said that in order to determine whether the main thrust of a public employee s speech is private (personal) or public, a court must examine the content, form, and context of a given statement, as revealed by the whole record. 2 The Court also noted that issues of public concern must relate to a matter of political, social, or other concern to the community. 3 The Court determined that the balancing test introduced by Pickering must be utilized only if the speech at issue involves matters of public concern. To determine whether an employee s speech is a matter of public concern, courts examine the content, form, and context of a given statement. C. Garcetti v. Ceballos, 547 U.S. 410 (2006) More recently, in Garcetti v. Ceballos, the Supreme Court further clarified the standards applied in Connick and Pickering. In this case, a district attorney claimed that he was passed up for a promotion because he had criticized the legitimacy of a warrant. The Supreme Court held that when public employees make statements pursuant to their U.S. 138, (1983). 3 Id. at

7 official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. 4 In other words, the court, as in Connick, added another limit to public employee speech protections, holding that speech made pursuant to official duties is not protected. When the employee is speaking pursuant to his or her official duties, and not as a private citizen, First Amendment protections do not apply. D. Putting it All Together Based on the preceding court cases, the standard for public employee speech requires an analysis of the following: 1. Whether the employee is speaking as a public citizen or pursuant to official duties. 2. Whether the employee s speech relates to a matter of public or private concern based on its content, form and context. 3. Whether the interests of the employee as a private citizen in commenting on matters of public concern outweigh the interests of the public employer in promoting the efficiency of the public services it performs, or vice versa. Carefully analyzing these factors will assist in determining the potential risks for regulating public employee speech U.S. 410, 421 (2006). 5

8 E. Legal Framework Review 1. STEP ONE: Citizen or Employee? The first step that a public employer must take is to determine whether the employee spoke as a private citizen or public employee. For an employee to be speaking as a private citizen, the speech itself cannot have been made in the course of the employee s ordinary duties. When evaluating this factor, public employers should consider the speech at issue from all perspectives, including whether the speech relates to the public employee s job duties and whether the speech was made while on or off duty. As a general rule, chain of command speech, that is, speech by an employee to his/her superiors, is employee speech. 2. STEP TWO: Issue of Public Concern? If the public employer determines that the speech was made as a private citizen, the employer must then analyze whether the speech was made regarding a matter of public concern. In Connick, the Court identified speech as a matter of public concern when it touched on aspects of political, social, or other concern to the community. 5 Typically, personal issues and grievances are not likely to be found as issues of public concern. The employer should focus on identifying speech that may implicate broader public issues and current events. 3. STEP THREE: Balancing Test After determining that a public employee spoke as a private citizen on a matter of public concern, it is necessary to balance the interests of the employee in speaking on the 5 Connick, 461 U.S. at

9 matter with the interests of the public employer, including the impact that such speech has in the workplace. For example, in Graziosi v. City of Greenville,775 F.3d 731 (5th Cir. 2015), discussed in more detail below, the speech at issue dealt with an employee s displeasure with the police chief s decision not to allow employees to drive department vehicles to a nearby town to attend a funeral. The court found that while the employee may have had a desire to show a shortcoming of the department, the employee s speech was attacking relationships within the department and represented a level of insubordination to a direct command. That was enough to show that the department could lose some ability to maintain discipline in future situations, resulting in the government maintaining a prevailing interest. As such, measuring the speech as it relates to discipline and employer efficiency is a good starting point for this analysis. Public Concern Private Concern Official Duties Not protected Not protected Private Citizen Highest protection If work nexus, perform balancing test III. ANALYZING PUBLIC EMPLOYEE SPEECH While Pickering, Connick and Garcetti provide a framework for analyzing employee speech, additional clarification has been provided by the court decisions listed below. The decisions provide some specific examples demonstrating the extent to which public employers may regulate employee speech. 7

10 A. California Teachers Ass n (CTA) v. Governing Board, 45 Cal. App. 4th 1383 (1996) While the cases below highlight Garcetti s limited effect on an employee s actual or perceived political activity and speech outside of the job site, political speech and activity has generally been limited on school campuses and in the classroom. In most states, there are specific statutory limitations on political speech and activity by public school employees. For example, California, Education Code section 7055 specifically authorizes school officials to place restrictions on the political activities of employees in two situations: (1) engaging in political activity during working hours and (2) political activity on the premises of the agency. 6 In CTA, the court upheld a prohibition on teachers wearing political buttons in the classroom. The court found that the school district had the power to prevent its employees from wearing political buttons in its classrooms and when they are otherwise engaged in providing instruction to the district s students. On the other hand we find the district has no such power when its employees are not engaged in instructional activities. 7 In other words, school districts have authority to limit teacher expression in the instructional setting in order to distinguish between individual teacher and school expression or speech. The court, in relying on an opinion of California s Attorney General, found that the teachers wearing of political buttons involved a position other than neutrality on a matter of political controversy, and that this action could be 6 Absent these permissible restrictions, the Education Code generally prohibits school employers from placing any restriction on the political activities of any officer of employee. (CAL. EDUC. CODE 7052.) 7 45 Cal. App. 4th 1383, 1385 (1996). 8

11 associated with the school because it occurred in the classroom in front of a captive audience of students, thereby bearing the imprimatur of the school. The court also held that the district s prohibition on political buttons being worn in the classroom was reasonably related to the legitimate pedagogical concern of preventing students from viewing political material they may not understand and to protecting the district against the perception that its classrooms were being used for partisan political advantage. B. Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008) In Spanierman, a teacher s contract was not renewed after complaints regarding his MySpace profile were submitted to his employer. The teacher had posted nude pictures and engaged in online conversations with students in a peer-to-peer like manner. The teacher challenged the termination as retaliation for his speech on the private MySpace account. 8 The court first examined whether the teacher s online speech was made as a private citizen or a public employee and determined that the speech was not made pursuant to the teacher s employment duties. In applying this factor, it was clear that the postings on MySpace were made in the employee s capacity as a private citizen, not a public employee. The court found that [t]here is no indication in the record that the Plaintiff, as a teacher, was under any obligation to make the statements he made on MySpace. 9 After determining that the teacher s speech was made as a private citizen, the court then considered whether it involved a matter of public concern. The court only found one aspect of the MySpace account to be of public concern: a poem regarding the F. Supp. 2d 292, 297 (D. Conn. 2008). 9 Id. at

12 Iraq war. 10 The court found that the poem was not the basis for the teacher s termination and therefore, his claim that he was terminated in retaliation for his speech was found to be without merit. The court found that the teacher s speech on MySpace was inappropriate and disruptive to the educational environment that his employer strived to maintain and upheld the termination. 11 C. Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) In Bland, sheriff s department employees were terminated upon the reelection of an incumbent sheriff after they had supported the sheriff s opponent during the election campaign. The employees alleged that the incumbent sheriff refused to reappoint them based on their political support for his election opponent. 12 The speech in question involved two incidents that took place prior to the election. In the first incident, one of the plaintiffs liked the opposing candidate s Facebook page, while the second incident involved a department employee making supportive remarks on the opposing candidate s Facebook campaign page. At trial, the district court granted summary judgment for the sheriff, holding that the employees speech was not protected speech under the First Amendment. On appeal, the Fourth Circuit reversed the summary judgment, holding that making comments on a Facebook page was the same as having a yard sign for a political candidate in one s front yard Id. at Id. at F.3d 368, (4th Cir. 2013). 13 Id. at

13 In reviewing the threshold question posed in Garcetti, the court found that the employees actions were those of private citizens. 14 As in Lane v. Franks, 15 discussed below, the court noted that even though the speech at issue was directed at the incumbent sheriff and was directly related to the speakers job, their speech was still that of private citizens. D. Graziosi v. City of Greenville, 775 F.3d 731 (5th Cir. 2015) In this case, a police sergeant was terminated after posting on her personal Facebook page statements that criticized her superiors for not letting officers drive police vehicles to a funeral for a fallen officer in another city. 16 The sergeant also posted her remarks on the mayor s Facebook page. 17 Applying the Pickering balancing test, the court held that even assuming the sergeant s comments were made as a private citizen (on her personal Facebook page) on a matter of public concern (prohibiting officers from using police vehicles to attend an official funeral), the city s interests in keeping harmony and disciplinary order in the workplace outweighed the police officer s interests. The Fifth Circuit cited language from Lane, in which the Supreme Court stated that the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee s duties, not whether it merely concerns those duties Id. at S. Ct (2014) F.3d 731, 734 (5th Cir. 2015). 17 Id. at Id.at

14 Graziosi presents several important considerations for school districts. Specifically, the court acknowledged that public employees can identify themselves as public employees through electronic postings and that doing so does not automatically eliminate First Amendment protection for their speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee s duties, not whether it merely concerns those duties. E. Czaplinski v. Board of Educ. of Vineland, No , 2015 WL (D.N.J. Mar. 26, 2015) In Czaplinski, a school district security guard was terminated after her employer received an anonymous report regarding comments she posted on social media. The security guard posted Praying hard for the Philly cop shot today by another black thug may[be] all white people should start riots and protests and scare the hell out of them 19 after a local police officer was killed in the line of duty by an African American assailant. The district received an anonymous referring to the Facebook comments and suggesting that the district was employing a racist security guard. The district eventually terminated the security guard based on the Facebook comments that were determined to be inflammatory. The court found that the security guard was speaking as a private citizen, because she was speaking on her own time and outside of her job duties. The court ultimately found that the school district s actions did not violate the First Amendment because the security guard failed to show that her interest in free speech likely outweighs WL *1 (D.N.J. Mar. 26, 2015). 12

15 Defendant s interest in avoiding a perception of racial bias and maintaining security. 20 The court recognized that the district had a significant interest in ensuring that its employees, particularly security guards whose positions require dispute resolution and maintenance of the peace, are respected and do not appear to be biased against certain groups of people. Employers should determine when and where electronic speech that is at issue occurred, because if the speech at issue occurred off the worksite, and outside of the employee s work hours, such speech is likely to be determined to be that of a citizen. F. Heffernan v. City of Paterson, 136 S. Ct (2016) In 2016, the Supreme Court determined that an employee may mount a First Amendment challenge to employer s adverse action even if the employer s action was based on a mistaken perception that the employee engaged in political activity. Heffernan establishes that actual engagement in a protected activity is not an element that must be proven to prevail in First Amendment retaliation claims. Instead, retaliation claims must be evaluated based on the employer s motive and whether that motive was constitutional, regardless of whether the motive was based on actual facts or mistaken perception. During the 2006 mayoral election in Paterson, New Jersey, a police officer was observed picking up and holding a yard sign for the opponent of the incumbent police chief. Unbeknownst to his superiors, the officer was picking up a sign for his bedridden 20 Id. at *5. 13

16 mother, not engaging in any political activity for himself. Word of this sighting quickly spread throughout the department, and the employee was demoted for violating policies prohibiting involvement in political campaigns. Both the district court and the court of appeals held that for a retaliation claim, Heffernan needed to show that he actually exercised his free speech and association rights prior to the city s adverse action. Both courts determined that Heffernan was not deprived of any First Amendment right because he never engaged in a constitutionally protected political act. The Supreme Court heard Heffernan s appeal and rejected the lower courts rationale, reasoning that [w]hen an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action... even if, as here, the employer makes a factual mistake about the employee s behavior. Simply put by the Supreme Court, the government s reason for demoting Heffernan is what counts. 21 IV. ACADEMIC FREEDOM AND THE FIRST AMENDMENT Academic freedom is generally the professional discretion that a public school teacher may exercise in the course of performing his or her teaching functions. 22 The concept of academic freedom and free speech rights are frequently conflated, with the former term used to justify an educator s selected curriculum, course content or teaching methodology S. Ct. 1412, 1418 (2016). 22 Uerling, Academic Freedom in K-12 Education, 79 NEB. L. REV. 956 (2000). 14

17 The concept of academic freedom was first introduced in Supreme Court jurisprudence through a dissent by Justice Douglas in the case of Adler v. Board of Education, 342 U.S. 485 (1952). In the dissent, Justice Douglas said that the Court s decision to uphold a statute that banned state employees from belonging to subversive groups and the process by which organizations were determined to be subversive would raise havoc with academic freedom. Justice Douglas argued that under the statute at issue in the case, teachers would be so fearful of being identified as a member of a subversive group that they would be reluctant to express fully their ideas on topics with their students. In Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Court reiterated the importance of academic freedom, holding, [o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. 23 While the concept of academic freedom at the post-secondary level differs greatly from that in the K-12 setting, teachers at the elementary and secondary levels are generally thought to have some amount of academic freedom. At the K-12 level, local school boards have broad powers in selecting and adopting curriculum, and state boards of education generally have content or curriculum standards that guide the selection of curriculum and lesson content. Notwithstanding the broad authority of school boards over educational curriculum, teachers maintain some level of academic freedom to determine how lessons and curriculum will be taught, as well as First Amendment rights to engage in certain speech in the classroom U.S. 589, 603 (1967). 15

18 Examining cases involving academic freedom in K-12 settings, Donald Uerling noted in the Nebraska Law review that where issues of curriculum and instruction have been involved, teachers consistently have lost their challenges to school authority. Especially in matters of program content, the authority of a school is never questioned. 24 For example, in 1994 the Ninth Circuit determined that a school district directing a high school biology teacher to teach the theory of evolution was not a violation of his First Amendment rights or notions of academic freedom. 25 Thus, while the concept of academic freedom exists to provide K-12 teachers with some degree of autonomy over how they deliver curriculum and lessons, courts have generally recognized the broad authority of school boards and local departments of education to control content to be taught in their classrooms. V. FREEDOM OF RELIGIOUS EXPRESSION Just as public employees have free speech rights guaranteed under the First Amendment of the United States Constitution, they similarly have a constitutional right to the free exercise of their religion. Title VII of the Civil Rights Act of protects public school employees from religious discrimination. As our schools continue to increase in diversity, both in their student and employee populations, school districts should have a solid understanding of the extent to which they must accommodate an employee s exercise of his or her religion. 24 Uerling, 79 NEB. L. REV. at Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994) U.S.C. 2000e. 16

19 In its compliance manual, the federal Equal Employment Opportunity Commission ( EEOC ) defines religion, as does Title VII, to include: [A]ll aspects of religious observance and practice as well as belief. Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. Further, a person s religious beliefs need not be confined in either source or content to traditional or parochial concepts of religion. A belief is religious for Title VII purposes if it is religious in the person s own scheme of things, i.e., it is a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by God. An employee s belief or practice can be religious under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual s belief or practice, or if few or no other people adhere to it. 27 The EEOC further recognizes that religious observances or practices may include attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Determining whether a practice is religious turns not on the nature of the activity, but on the employee s motivation for the activity. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons. In this case, the former may require accommodation by an employer, while the latter would not. To determine the extent to which a school district employer must accommodate an employee s religious beliefs and practices, an understanding of the framework under which courts analyze these cases is helpful. 27 U.S. Equal Employment Opportunity Commission, Compliance Manual, Section 12-I(A)(1) (July 22, 2008). 17

20 A. Is the Practice or Belief a Religious One? The first step to analyzing whether a religious belief or practice must be accommodated is to determine whether it is a religious practice or belief. To that end, courts will rely on the definition of religion under Title VII. While employers can inquire as to the reason an accommodation may be needed to determine if it is for religious or other purposes, employers must be cautious in challenging the existence of the religious belief once one is articulated. 1. Adeyeye v. Heartland Sweeteners, 721 F.3d 444 (7th Cir. 2013) In Adeyeye, the employee was terminated for using vacation and unpaid leave to travel to Nigeria for four weeks to attend his father s burial and attend to related rituals. The employer questioned whether the leave was for the employee s exercise of his religious beliefs. The court found that the employee s statements in his requests for leave indicating that the spiritual import of the various rituals attendant to his father s burial to the afterlife were sufficient to demonstrate the leave was for religious purposes. 2. Tiano v. Dillard Department Stores, 139 F.3d 679 (9th Cir. 1998) Here, the employee requested time off to take a pilgrimage during a time of year that the employer had in place a no leave policy. Although the request for leave was denied, the employee went on her pilgrimage. She was terminated from her position upon her return. The court found that while the trip was motivated by the employee s religion, Catholicism, the trip itself was not for religious purposes. Rather, the court determined the trip to be a personal preference of the employee. 18

21 3. Vetter v. Farmland Industries, 120 F.3d 749 (8th Cir. 1997) This case provides another example of a court finding a request for accommodation based on a personal preference rather than a religious belief. Here, the employee requested an exemption from the requirement that he live in his trade territory so that he could relocate to a city with a more active Jewish population and synagogue. The court found that this desire to relocate was a personal preference, and the employer was not obligated to accommodate the employee. While religion is broadly defined under Title VII, employers must examine whether a request for accommodation from an employee is motivated by the employee s religious belief or a personal preference. B. Is the Belief Sincerely Held? Once an employer understands that an employee s request for accommodation is due to a religious belief or practice, the employer must confirm that the employee s religious belief is sincerely held. According to the EEOC, factors that either alone or in combination might undermine an employee s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason 19

22 to believe the accommodation is not sought for religious reasons. 28 No single factor is dispositive for determining the sincerity of the employee s belief. 1. Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) In Tagore, the employee worked at the Internal Revenue Service (IRS) and requested permission to wear a kirpan a Sikh ceremonial sword while at work. The sword typically has a long blade and could be used as a weapon. The IRS evaluated the request and considered whether other alternatives, such as sewing the blade into a sheath or dulling the blade, might be acceptable to the agency and the employee. The court determined that the sincerity of the employee s beliefs would require an examination of her individual credibility, and factors that may be considered were the fact that she was willing to lose her job to wear the kirpan and the Sikh requirements for the kirpan. The court found that the IRS s refusal to grant the accommodation based on undue hardship was permissible. The court specifically focused on the fact that the employee s requested accommodations were not reasonable in that the prohibition on weapons in a federal building was standard and that security guards would be required to determine daily whether the kirpan had the dulled blade as discussed EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1996) In this case, a Jewish employee made a request for leave from her employer to observe Yom Kippur. The employer denied the request, disbelieving the employee had a 28 Id. at Sec. 12-I(A)(2). 29 The employee and the government later entered into an agreement providing the employee a three-year exemption from federal law and allowing her to wear her kirpan in certain federal buildings. Orzeck, U.S. Settles Religious Bias Suit, Allows Sikh Knife At IRS, LAW360 (Nov. 5, 2014), available at, (as of January 9, 2017).) 20

23 sincerely held religious belief because in her eight-year tenure, the employee had never before requested leave for a religious observance. The employee also acknowledged that she generally was not a very religious person. The court found in favor of the employee and rejected the employer s determination that employee s need for leave was not based on a sincerely held religious belief. The court found that the evidence presented demonstrated that the employee s religious beliefs had strengthened in recent years based on various life events, including the birth of her child and death of her parent. In considering the sincerity of an employee s religious belief, employers should consider the timing and circumstances of the employee s request, the nature of the request and the consistency of the request with the employee s professed belief. C. The Scope of the Duty to Accommodate Once an employer has information that an employee s request for accommodation is based on a sincerely held religious belief, the employer must determine whether the employee s request may be reasonably accommodated. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs. In considering the reasonableness of granting an accommodation, any hardship arising from granting the accommodation must be more than a de minimis cost or burden. The need for accommodation most frequently arises where an employee s religious beliefs, observances, or practices conflict with an employer policy, the employee s job duties or the application process. The employer may either grant the requested accommodation, if doing so would not create an undue burden on the employer; deny the accommodation, if it would create an undue burden; or 21

24 develop an alternative accommodation that harmonizes the employee s religious practice with the employer s policy or practice. 1. EEOC v. Abercrombie & Fitch Stores, 135 S. Ct (2015) In Abercrombie, a retail clothing store had a policy that required employees to maintain a certain look consistent with the clothing the retailer sold. This policy included a prohibition on sales clerks wearing a hat or cap of any kind. A female job applicant wearing a head scarf as part of her Muslim beliefs interviewed with the retailer. The applicant did not specifically tell the retailer that she was Muslim, nor did she indicate the need for any accommodation in the application and/or employment context for religious purposes. She was denied a position with the retailer because the retailer assumed that her religious beliefs would prevent her from conforming to the ban on hats/caps. The Supreme Court found that the retailer s refusal to hire the applicant amounted to discrimination based on religion. Recognizing that the retailer may have had little to no information about the applicant s religious beliefs, the Court found that upon observing the applicant wearing a head scarf the retailer had at least a suspicion that the applicant would need an accommodation to the policy based on her religion. The refusal to hire the applicant, without considering possible accommodations, violated the applicant s civil rights. Unlike cases before it, which required actual notice of the need for a religious accommodation from the employee, Abercrombie stands for the proposition that if an employer has an inkling or should have known that an accommodation may be necessary for an employee or job applicant, it must consider accommodation(s). 22

25 2. Baker v. Home Depot, 445 F.3d 541 (2nd Cir. 2006) In Baker, the employee requested that he not be scheduled to work on Sundays as an accommodation for his religious beliefs, which required him to refrain from performing any work on Sunday. The employer determined that not scheduling the employee to work on Sunday would be an undue hardship. As a compromise, the employer offered an alternative accommodation of scheduling the employee to work in the afternoon or evenings on Sundays, rather than the mornings, which would allow the employee to attend church services. The court found that this proposed alternative accommodation was not a reasonable accommodation under Title VII because the employee s religious views required not only attending Sunday church services but also refraining from work on Sundays; thus, the employer was required not to schedule the employee for Sunday work. 3. Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998) In Rodriguez, a police officer requested to be relieved of having to guard abortion clinics because he opposed abortion due to his religious beliefs. The city did not grant the officer s requested accommodation, finding that relieving him of such duties completely would create staffing difficulties and public safety issues. However, as an alternative accommodation, the city offered to allow the officer to exercise his right under a collective bargaining agreement to transfer to a different district without any abortion clinics. The court upheld the city s accommodation, finding that Title VII does not compel an employer to grant the employee s preferred accommodation. 23

26 An employer who knows or should know of a conflict or potential conflict between the employee s religious belief or practice and their job, should consider whether an accommodation may be necessary. VI. APPLYING THE FREE SPEECH FRAMEWORK TO SCHOOL EMPLOYEES A. Employee Speech With the Pickering, Connick and Garcetti framework in mind, let s examine how that framework might apply to hypothetical cases involving school employee speech. 1. The National Anthem and the Coach Who Won t Stand A school district teacher who serves as the varsity football coach has decided to join professional athletes in refusing to stand when the national anthem is played before the game. Some of his players have followed his cue. A number of parents have complained to the district that the coach is being disrespectful and anti-american. The players who stood have gotten into verbal altercations with the players who will not stand, resulting in tension among team members. Can the school district discipline the coach? In this scenario, the coach taking a knee instead of standing for the anthem is speech, triggering a First Amendment analysis; therefore, the school district should first examine whether the coach is speaking as a private citizen or a public employee. Here, his expressive conduct taking a knee during the national anthem, is done in the course of his duties as an employee while coaching a football team and therefore he is likely speaking in the context of his employment. Next, an examination of whether this is a 24

27 matter of public or private concern demonstrates that, in this context, the action is one involving a public concern, namely protesting discriminatory treatment of racial or other minority groups, a matter of significant public discussion. Finally, the district must examine whether its interest in maintaining a safe and successful sports program outweighs the employee s interest in the speech. The district s ability to regulate the speech in this case is likely to turn on the level of disruption that the coach s conduct causes to the program. The more disruptive the conduct, the more likely the speech can be regulated. However, before regulating the speech here, the school district would be wise to consider whether there are any means short of regulation that potentially address concerns with the speech/expression at issue. For example, is there an opportunity to use this as a teachable moment and have discussions with the coach and players about their respective positions and how to harmonize those in a way that does not impact the team? The district should also consider whether an outright prohibition on the coach s expressive conduct is the appropriate remedy or whether there is a more narrowly tailored solution as disciplining the coach may create an impression of district support for only one position in the public debate of minority treatment. 2. Signs of the Time A school clerk decides to wear a safety pin on her blouse every day to show support for marginalized groups, including women, immigrants, people of color, Muslims and the LGBT community. The district has received complaints that the pin is a form of political speech and is receiving pressure to ban the clerk from wearing the pin. Can the pin be banned? 25

28 Here, wearing the pin is a form of symbolic speech. Using our framework, the district must analyze whether the employee is speaking as a public or private citizen. When the employee is at work, the speech is arguably considered speech of the public agency employee. Particularly, in the school district setting, there is the concern that students could be confused as to whether the speech is attributable to the employee or the school district. The next consideration is whether this is a matter of public or private concern. Wearing a pin to demonstrate support of marginalized groups is likely speech on a matter of public concern. In balancing the interests of the employee with those of the district, there are arguments that could be made on both sides. From the clerk s perspective, the pin is a non-disruptive way to show support for marginalized groups in the same way that wearing a pink ribbon shows support for the fight against breast cancer and wearing a particular religious sign might identify one as a member of that religion. From the district s perspective (and at least one school district has taken this position), 30 the safety pin is disruptive because it may lead to questions as to its purpose and may be interpreted as a statement against certain politicians or political parties. Where a court would land on this issue is likely to depend on the extent to which the district is able to demonstrate a substantial disruption of its business. 30 Hudnall, Shawnee Mission School District forbids teachers from wearing safety pins, THE PITCH (Nov. 21, 2016), available at (as of January 6, 2017). 26

29 3. My Class, My Academic Freedom A science teacher, during a lesson on human anatomy, describes in detail the process for aborting a human fetus and encourages students to think twice before making the decision to abort. The school wants to terminate the teacher for the commentary. Given that the commentary was outside the scope of the lesson and potentially disturbing to some students, it is unlikely that a court would find such discussion to be a legitimate exercise of the teacher s academic freedom. To determine whether the speech is protected on First Amendment grounds, we examine whether the speech was made as a public or private citizen on a matter of public concern. Here, the speech took place in the employee s classroom during a lesson. Thus, it is likely the employee would be considered to be speaking as a public employee. The matter involved abortion may be considered a matter of public concern, though in this scenario the teacher appears to be speaking about it for his own purposes. Assuming the employee is speaking as an employee on a matter of private concern, there is no need to balance the employee and employer interests. However, if the balancing test were applied, because this commentary was off-topic, graphic and has political overtones, the district could likely demonstrate that its interest in maintaining an effective educational environment outweighs the employee s First Amendment and academic freedom interests. 27

30 B. Employee Religious Expression Considering Abercrombie and the other cases discussed above on religious expression and accommodation, we now examine how that framework might apply to hypothetical cases involving school employee religious accommodation. 1. Time for Prayer An employee, who has worked for the school district for several years without accommodation, notifies the district that based on his religious beliefs, he must leave his sixth period class early once a week to engage in a prayer ritual. The school cannot find anyone to cover the employee s class for fifteen minutes while he leaves to pray. The school wants to deny the accommodation. Using the religious expression framework, the school district must first determine if the practice or belief is a religious one. Here, the employee has indicated that the weekly prayer is part of his religious beliefs. Courts are generally reluctant to question the practices or beliefs of a religion. Next, the district must explore whether the belief is sincerely held. Here, the fact that the employee has not requested accommodation previously does not mean that the belief is not sincere. Rather, the employee may have recently reconnected with his beliefs or converted. If the employer has information that potentially contradicts or undermines the sincerity of the beliefs the employee is spotted doing something other than prayer during the designated time the employer may be able to question the sincerity of the belief. Finally, if the belief or practice is a religious one and sincerely held, the school district must examine possible accommodations. Similar to the interactive process under the Americans with Disabilities Act, the school district 28

31 should engage the employee in a discussion about the practice and possible accommodations that could be considered, such as moving the employee s preparation period to sixth period so that there are not students under his supervision at that time. In a case like this, where there is likely to be at least one accommodation that would allow the employee to exercise his beliefs, a refusal to accommodate is risky. 2. The Clerk with the Dragon Tattoo The school district has a policy prohibiting employees from having tattoos visible during the workday. The policy has been consistently applied. A school clerk recently joined a religious sect that requires its members to have a small dragon tattooed on their arm to demonstrate commitment to the sect. School clerk comes to work after getting the dragon tattoo and is promptly disciplined for violating the school policy and told to cover the tattoo while at work. As with Abercrombie, the district has a neutral policy applicable to all employees prohibiting any type of tattoo. Here, there are no facts to suggest that, after the employee appeared with the tattoo, the district had an inkling that the tattoo was part of the employee s religious beliefs. Therefore, it is likely that the district would legitimately initiate a disciplinary conversation with the employee. If, in that context, the employee informed the district that the tattoo was required by her religious beliefs, the district and the employee would, hopefully, be able to engage in an interactive discussion and to determine an accommodation for the employee s beliefs, such as wearing long sleeve shirts, that does not undermine the district s no-tattoo policy. 29

32 VII. PRACTICAL POINTERS When evaluating situations that implicate employee speech or religious expression, it is important to consider the larger context. In advising clients, it is easy to over-lawyer the situation and ignore the practical and political implications of the advice provided. While there is almost always a legally correct or most advisable response that can be provided, such a myopic view may lead clients into deeper trouble. Take for example the hypothetical above of The National Anthem and the Coach that Won t Stand. In that case, the coach s kneeling is done in support of the Black Lives Matter movement and in solidarity with the rights of disenfranchised groups in America. A school lawyer that examines that scenario and provides a legal answer, may determine that the conduct is sufficiently disruptive as to warrant direction to the employee to cease his actions. While that position may be seen by some as requiring appropriate respect for our nation s anthem, others may see it as a repudiation of the Black Lives Matter movement and/or the rights of disenfranchised groups. In these scenarios, it is important to work with and understand the client s goal. If the client in this scenario simply wants to ensure that there is harmony on the team and the views of both sides are respected, examining the situation from a non-legal lens could offer that solution. Approaching the scenario from an educational and conflict-management perspective would allow discussion of the various sides of the issues, understanding of the respective positions, and possibly development of a collaborative solution that avoids the district being in the middle of a politically charged issue. The tips below will help in approaching these scenarios from both a legal and practical standpoint. 30