“Merry Christmas” and “Happy Hanukah” are phrases commonly used during the holiday season, but could the use of such a phrase in your workplace get you into trouble for proselytizing? While it might be hard for someone to claim that you were sharing your faith by simply saying “Merry Christmas” or “Happy Hanukah,” it is important to know if or when proselytizing can put your job in jeopardy. Employees in the private workforce are protected by the Free Speech Clause, but this right can be restricted.
The Free Speech Clause of the First Amendment protects employees who want to share their faith, but this does not mean that they can talk about their faith without restrictions. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” It protects employees in the workplace who wish to speak about religious topics, and prevents companies from treating them differently based on faith alone.
However, a company has the right to limit religious expression in three instances: (1) if it imposes undue hardship on the operation of business and/or (2) if it causes or would cause customers or co-workers to reasonably believe that proselytizing actions express the company’s own message or (3) where the speech in question is harassing or disruptive. Furthermore, while evangelism is generally allowed, the person proselytizing must stop if the listener asks them to or makes it clear that such an act is unwelcome. For example, if a receptionist decorates the office with religious artifacts, the company is allowed to ask for them to be taken down because people could reasonably believe that the company was endorsing a certain religion.
One might assume that a company cannot be held liable for one of its supervisor’s proselytizing, but this is not true. Because the company put the supervisor in charge, it can appear as though it is imposing its own beliefs when a supervisor proselytizes in the workplace. Employees might fear that their job security and promotability could be impacted by how they respond to their supervisor’s proselytizing. It is important to note that, “fear alone, even fear of discrimination or other illegal activity, is not enough to justify such a mobilization of governmental force against [a supervisor]. The fear must be substantial, and above all, reasonable.”
However, this does not mean that private companies are not allowed to ever express their own beliefs in the workplace. For example, a clothing store for young adults, Forever 21, inscribes its shopping bags with the Bible verse John 3:16. Since Forever 21 is a private company, the owners have the right to express their faith in such a way. This was decided when the court held that the government cannot impose sanctions on an employer who chooses to engage in a religious practice unless the government has “knowledge that the practice has a harmful effect on the employees.” The court feared that “if the rule were otherwise, fear of unwarranted government punishment would stifle or make insecure the employer’s enjoyment and exercise of religion, seriously eroding the very values that the constitution expressly exempts from government control.”
Unfortunately for companies, determining whether or not to allow proselytizing in the workplace requires some balancing. Most courts have decided that a company must balance the right of the employee to engage in protected religious practice with the other employees’ right to work in an office free from religious harassment. Examples of courts balancing the two rights are illustrated in two cases that decided opposite ways.
In the first case, food service employees were fired for greeting customers with sayings like “God bless you” and “Praise the Lord.” When the employees brought suit, the company argued that it could not have reasonably allowed them to continue greeting people this way, and that therefore they were allowed to terminate them after they first refused to stop. The court disagreed and held in favor of the discharged employees, stating that their speech was protected and that the company failed to tip the balance in the company’s favor because it could not demonstrate that the employees’ greetings caused a loss of customers.
In contrast, the other case held that a company was allowed to fire a Roman Catholic woman who refused to stop wearing an anti-abortion button to work because “…to simply instruct [her] coworkers that they must accept [her] insistence on wearing a particular depiction of a fetus as part of her religious beliefs is antithetical to the concept of reasonable accommodation.” These two cases show that there is no clear line between what is allowed and what is not, but it depends how offensive the actions are or how much disruption they cause in the workplace.
Overall, it is important for a company, when faced with the question of how much proselytization to allow in the workplace, to balance employees’ right to talk about their faith under the Free Speech Clause against other employees’ right to work in an environment free from religious harassment.
 Brown v. Polk County, Iowa, 61 F.3d 650, 659 (1995).
 322 Or. 132, 153 (1995).
 Banks v. Serv. Am. Corp, 952 F. Supp. 703, 705, 707 (D. Kan. 1996).
 Wilson v. U.S. W. Communications, 58 F.3d 1337 (8th Cir. 1995).
Mark Simon is an AV rated trial attorney who has represented clients ranging from public corporations and governmental entities to small start-up businesses. He primarily focuses his practice on employment issues, including: employment discrimination, harassment, retaliation, wrongful discharge, wage-hour, non-compete agreements, non-solicitation agreements, trade secrets, ERISA and independent contractor litigation.
Lauren Miller is a rising third year student at the University of Georgia School of Law. She was awarded the Tuition Equalization Scholarship. She is a member of UGA Law’s Business Law Society, Health Law Society, Public Interest Law Council, and Student Bar Association.