Religion in the Public Workplace: A Primer for Public Employers

• Author: Robert Roberts
• DOI: http://doi.org/10.1177/00910260221129529
• Published date: 01 March 2023
• Date: 01 March 2023
• Subject Matter: Articles

https://doi.org/10.1177/00910260221129529

Public Personnel Management

2023, Vol. 52(1) 117 –139

© The Author(s) 2022

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DOI: 10.1177/00910260221129529

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Article

Religion in the Public

Workplace: A Primer

for Public Employers

Robert Roberts1

Abstract

Today, public organizations face an increasing challenge of accommodating workplace

religious expression by their employees. This article examines the impact of First

Amendment workplace religious expression jurisprudence on workplace religious

expression by public employees. The article also discusses the impact of Title VII of the

Civil Rights Act of 1964, as amended, on the workplace religious expression rights of

public employees. The article argues that the complexity of public workplace religious

expression jurisprudence may make it difficult for public employers to understand

the workplace religious rights of their employees and their rights to regulate the

workplace religious practices of their employees to maintain the efficiency and

effectiveness of their organizations. The article also argues that public organizations

have the capacity to embrace the workplace religious diversity of their employees as

part of more extensive efforts to enhance the diversity of their public organizations.

Finally, the article analyzes the impact of the U.S. Supreme Court decision in Kennedy

v. Bremerton Sch. Dist. (2022) on the workplace religious rights of public employees.

Keywords

religion in the public workplace, First Amendment, Title VII, Pickering/Connick/

Garcetti balancing test, Kennedy v. Bremerton Sch. Dist (2022)

Introduction

The U.S. Supreme Court recently held in Kennedy v. Bremerton Sch. District (2022)

that a local school district violated the First Amendment freedom of religious expres-

sion rights of a part-time high school football coach when it directed that he stops

1James Madison University, Harrisonburg, VA, USA

Corresponding Author:

Robert Roberts, James Madison University, Miller Hall, 91 E. Grace Street, Harrisonburg, VA 22801,

USA.

Email: robertrn@jmu.edu

1129529PPMXXX10.1177/00910260221129529Public Personnel ManagementRoberts

research-article2022

118 Public Personnel Management 52(1)

going to the 50-yard line, after shaking hands with the opposing team, to pray (Kennedy

v. Bremerton Sch. District, 2022, p. 2411). The coach did not ask anyone to join him.

“Over time, however, a majority of the team came to join him, with the numbers vary-

ing from game to game” (Kennedy v. Bremerton Sch. District, 2022, pp. 2435–2436).

Beyond the fact-specific issues related to the actions of coach Kennedy, the U.S.

Supreme Court used the case to reinterpret the Establishment Clause of the Constitution

to restrict workplace religious activities by public employees. The U.S. Supreme Court

replaced the three-part Lemon test used by federal courts since 1971 to evaluate

whether government agencies must prohibit or restrict certain religious activities on

government property. In directing coach Kennedy to stop praying on the 50-yard line,

the local school district took the position that unless they prevented coach Kennedy

from holding prayer sessions on the 50-yard line, the school district would violate the

Establishment Clause (Brannon, 2022, pp. 4–5).

The Kennedy v. Bremerton Sch. District case demonstrates the fluid status of pub-

lic workplace freedom of religious expression jurisprudence. The article seeks to

clarify the First Amendment freedom of religious expression rights of public employ-

ees in the workplace and the religious workplace rights of public employees under

Title VII of the 1964 Civil Rights Act (U.S. Equal Employment Opportunity

Commission, 2021a, 2021b, 2021c). Even before the Kennedy v. Bremerton Sch.

District decision, First Amendment freedom of expression jurisprudence clarified

that public employees had broad rights to engage in various workplace religious

activities. And Title VII religious discrimination jurisprudence makes clear that pub-

lic and private employers must accommodate the workplace religious practices of

their employees unless such accommodations would work an undue hardship to an

employer (Groff v. Dejoy, 2022).

First Amendment freedom of religious expression jurisprudence makes clear that

public employers may not use the Establishment Clause to enforce broad bans on the

workplace religious expression of their employees (Brannon, 2022). However, Title

VII religious discrimination jurisprudence clarifies that public and private employers

must protect their employees from religious harassment (Gregory, 2011, pp. 130–138).

With federal courts consistently holding that public employers must allow their

employees to express their religious faith in the workplace openly, one may expect an

increase in complaints from other employees that they do not wish to be subjected to

the religious activities of fellow employees. The fact that an employee may not want

to be subjected to workplace religious expressions by another employee does not con-

stitute grounds for a public employer to direct an employee to stop engaging in pro-

tected workplace religious activities. The complexity of First Amendment freedom of

religious expression workplace jurisprudence and the complexity of Title VII work-

place freedom of religious expression jurisprudence makes it essential for public

employers to recognize that the vast major of workplace religious expression issues

must be resolved on a case-by-case basis. Public employers must familiarize them-

selves with the issues that frequently arise concerning the workplace religious expres-

sion of public employees. When public employers can ask the right questions when

deciding how to resolve workplace religious expression issues, the likelihood increases