Episode Eight: Religion and Schools: Part Two

In part two of our series on religion, we tackle common questions that school districts face when employees assert their religious rights. Does a teacher have a First Amendment right to teach creationism? What precautions should be taken during the interview process? How should districts handle requests for schedule changes and time off for religious holidays?

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Miriam: Welcome to Education Law Update, the podcast that entertains and informs. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are Ohio attorneys. We practice school law. We get together every so often and we talk about the latest legal developments that affect anybody in the school. School districts, board members, administrators, anyone who works with the schools.

Today we’re back with the second part of a hot topic of religion in schools. In this series, we started last episode discussing how religious conflicts and concerns relate to student issues. Today we’re going to switch paths and talk about employee conflicts. We’re going to look at some of the governing laws, and then outline some of the frequent issues we hear about and what those implications look like for you guys in the schools.

Lisa: Yes. Essentially, what are the school district’s obligations in handling employees’ sensitive religious issues and requests? Just quickly, very quickly, a brief review of the First Amendment before we dive into the federal laws and specific examples. The First Amendment has two clauses that are relevant here, the Establishment Clause and the Free Exercise Clause and those bar governments, including local entities, such as school districts from establishing a religion, making an official religion, favoring one faith over another or even favoring faith over non-faith.

Miriam: You remember last time we talked about what is the appearance of the district. What does it look like they’re favoring or asserting. It may not have to be as black and white as we’re establishing that this school must follow this religion. Often these are just more perceptual types of issues.

Lisa: Exactly. Last time we talked about whether or not the school district’s action looks like they are establishing a religion to a reasonable person or looks like they’re favoring one faith over another. The Free Exercise Clause, bars, governments including local entities such as school districts from limiting individual’s beliefs or practices, of course, they can enact neutral laws of general applicability. That’s the First Amendment. The First Amendment obviously applies to all the states, everyone in our country. We also have federal laws that apply to the nation as a whole.

Miriam: Title VII is going to be the big federal law that is at issue with employees that we didn’t have in play in our last episode about students.

Lisa: Right. Title VII is the federal law that prohibits employers from discriminating against their employees based on race, gender, disability, and also religion. The EEOC, the Equal Employment Opportunity Commission is the agency tasked with enforcing Title VII, and this is the agency that develops rules and regulations, clarifying for us, clarifying for school districts what their obligations are.

Miriam: Right. These EEOC regulations basically boiled down to a requirement that employers have to reasonably accommodate employees when they express sincerely held religious beliefs and ask for an accommodation that correlates with that.

Lisa: Unless doing so is going to cause undue hardship. That’s the question, what is undue hardship if an employee, if a teacher, if a bus driver, if a cafeteria worker comes to the Board of Education, comes to the school district and asks for some accommodation based on her religious belief? To what extent is the school district obligated to comply?

Miriam: We have some good examples of what an undue burden would be, right?

Lisa: Right. The school district does not have to comply does not have to grant the request, if it would be an undue burden. For example, if it would violate a seniority system, if it would result in a lack of staffing, if it would jeopardize anybody’s security or health or even if it would cost the school district more than a minimal financial amount.

Miriam: Right. It’s important to point out though, that causing a lack of staffing isn’t just going to be an employee’s request to have one day off to honor their religious beliefs on that day, and you need to bring in a substitute teacher, that’s going to be reasonable.

Lisa: It will usually be reasonable. I always recommend that the specific facts be reviewed with the school district’s attorney because, in all of these First Amendment or discrimination situations, they’re really quite fact-specific. Just before we dive into our five examples into our five scenarios, I just would like to say that, aside from the constitution and the federal laws which apply to the entire country, most states, I would say, have their own statutes and regulations, protecting employees and all our listeners should be familiar with those state regulations. I don’t want anybody to come away thinking that it’s just the First Amendment and Title VII. Your state most likely has regulations and laws protecting employees and those might go beyond what we just talked about.

Miriam: Absolutely. Let’s dive into our first area that we often get questions about with their job application process.

Lisa: Job applicants. That’s right. School districts cannot use forms asking about protected categories. They can’t publish jobs indicating a preference. I think those two are just really not so common. Importantly, school districts may also not use placement services known for preferring one religious group or another. In other words, even if the school district is not the hiring actor is not the hiring party, even if they’re using a placement service, the school district might be on the hook for violation, if they knowingly use a placement agency that prefers one religious group over another. Here’s an interesting case that has come down recently from the Supreme Court. The EEOC versus Abercrombie & Fitch.

Miriam: This is a case that really focuses on attire, right?

Lisa: Attire during the interview process. There is this young woman. She’s wearing a hijab. I think she’s 17. She applies for a position at the mall. She goes through an interview and she’s turned down.

Miriam: Now, it’s pretty important to point out though, she didn’t ask for any accommodations in our interview process or explain anything really about her attire.

Lisa: Yes. She didn’t say this is my religious belief. She didn’t talk about her attire at all. Her interviewer obviously saw what she was wearing and told his supervisor that he interviewed this girl, she came dressed this way for the interview and she would not be able to comply with company’s dress requirements without an accommodation. She wasn’t hired. She wasn’t hired, she filed a complaint with the EEOC and the EEOC like it sometimes does, took this to court on her behalf. Eventually, it wound up in the Supreme Court.

Miriam: Basically, it boiled down to this being a display of impermissible discrimination.

Lisa: Right. The court basically said, “You can’t ever consider religion in your hiring decision. It doesn’t matter whether the potential employee asked for an accommodation or didn’t revealed his or her practices. Just religion cannot be a factor in any hiring decisions.”

Miriam: This brings to mind to me phone interviews. I just think, in your initial stages, what a great way to just totally avoid this. Don’t even see the person in your first round.

Lisa: Yes. I think there are definitely some agencies I’ve heard that just do all interviews over the phone, but I think for school districts, eventually, you’d want to see the person face to face before you make that hiring decision.

Miriam: Right. Just some things to keep in mind as you go through that process. How about absences? I know we’ve touched on this briefly earlier, but with schedule changes, and how many days asking off, what parameters do we see here that are reasonable?

Lisa: Again, it’s just always a factual decision based on the unique circumstances. In general, if the district is not going to allow a schedule change, because it’s going to cause undue hardship, the district still should allow co-workers to voluntarily swap shifts. In other words, if there’s two teachers or two cafeteria employees, they want to swap out their shifts, they want to do it interpersonally without anything formal, then the school district is generally required to allow that.

Miriam: You also want to point out too that sometimes you can accommodate that person in their current position, but maybe there’s a position that they could be transferred to that’s vacant that might make the accommodation more possible.

Lisa: Yes. I would say that’s obviously for a situation where it’s more of a long term thing. Let’s say the employee says I can’t work any Fridays. That’s not just a one-time thing. That’s going to be a weekly situation. It might be possible to transfer that individual somewhere where Fridays are not an issue. Here’s something interesting. Customer preference or co-worker disgruntlement does not justify denying our religious accommodation. If another teacher says, “Why does she always get Fridays off? That’s really unfair.” That’s not enough for the district to say, “Okay, well, I guess you’re not going to have Fridays off.”

Here’s an interesting case that I pretty recent also. It’s Abeles versus Metropolitan Washington Airport Authority.

Miriam: This is Fourth Circuit, not Sixth Circuit, which would be mandatory and binding in Ohio, but still persuasive out there.

Lisa: Yes, this is a pretty interesting case. There’s a religious Jewish woman and she sued her airport employer because the employer suspended her after she failed to request leave for the last days of Passover, and the court-

Miriam: Did she basically just take the days off then?

Lisa: Yes. She took the days off, she had previously requested other days off, and that was fine, but the last days of Passover, she just kind of jot it on the calendar. Put it on the Outlook calendar, “I’m not going to be here.” When she came back, she had a five day suspension on her record. She sued, and the Fourth Circuit interestingly held that she was disciplined not because of her faith but because she failed to follow established procedures in requesting leave.

In other words, if you’re disciplining an employee because of something else, because they fail to follow procedure, that might be a good enough reason if it’s not related to religion. I think this is kind of the question that courts sometimes have to tease out which is the motive of the employer in issuing that discipline.

Miriam: The employer really is going to have a little bit of the burden of being the one to request and make the connection that it is about religion. You’re not going to be as a district expected to just automatically know that, which I think this case displays nicely.

Lisa: Yes. I think with all employee issues, there’s always going to be a situation of well, was this employee insubordinate?  Did the employee not following the rules? As a school district am I disciplining the employee for not following the rules or because of his or her religious beliefs? That’s a tension that we see in the court cases and specifically, in curriculum issues that sometimes come up. That’s a great segue to our next topic, which is curriculum conflict.

Miriam: Right. Generally, school boards are going to control curriculum and they can prohibit certain displays or activities promoting teachers beliefs, but not personal items.

Lisa: It’s very well established that the school board is the one that sets the curriculum and the teachers pretty much have to teach what the board designates as the curriculum, and they can be fired for refusing to teach certain subjects. Now, obviously, whenever possible, you don’t want to go to court. School districts should reasonably accommodate teachers’ beliefs, if it’s about things like pledge of allegiance, other patriotic issues, school district should try to reasonably accommodate but that only goes so far. For example–

Miriam: Creationism is kind of a hot topic I know with curriculum historically. We have a case where that came up, don’t we?

Lisa: Yes, it was an interesting Ohio case, an eighth grade science teacher was fired for teaching creationism. He also had religiously themed posters in his classroom. He refused to take them down when asked to do so. He was also asked to remove a Bible from his desk and instead of doing that he purchased and brought to school three other religious texts and put them on his desk in defiance of that request.

Miriam: This was before the Ohio Supreme Court?

Lisa: This went all the way to the Ohio Supreme Court and the court decided that firing this person was permissible, again, because of insubordination. Because the teacher, the employee, was asked not to teach creationism and to take down the posters. He defied that request. That’s why he was fired. The court did also say though, that if it was just about the Bible, if it was just about the teachers personal Bible that he kept on his desk, that wouldn’t have been insubordination because school districts are not permitted to ask teachers to remove their personal items.

Miriam: We’d be talking more discrimination on First Amendment?

Lisa: Yes. That would be a First Amendment issue because essentially, if the school district would be asking a religious employee to take down, to remove something personal from his or her desk, that could be a free exercise issue. That could be a free exercise problem. That’s one interesting case, Freshwater. That’s the Freshwater case. In the Palmer case, this was a little while ago, the Seventh Circuit Court of Appeals held that a Jehovah’s Witness teacher could be fired because she refused to teach what she called idolatrous curriculum.

She refused to teach, for example, about President Lincoln. Why we observed his birthday, her faith directed her not to teach these topics because it was idolatrous. The Seventh Circuit held like we just discussed, school boards control the curriculum. You can try to accommodate as much as you can, but if a teacher refuses teaching a whole entire topics, then that’s not acceptable. That is a reason to terminate that individual.

Miriam: Right. There’s also with unions that most school districts have for the teachers or other employees. There’s a thing called fair share payments under that, We get some questions about that based on religious beliefs as well?

Lisa: Some religions do not allow their adherents to pay union dues because of the tenants of that faith. If an employee comes and says, “I can’t pay union dues.” School districts are not allowed to compel them to do so. They’re not allowed to force these employees to pay those dues, but there is a national equal pay to charity rule, which states that an employee can show good faith by giving that amount, whatever the dues are to charity. That takes the place of those union dues. Now, obviously, with these kind of issues, most states have their own specific regulations and requirements. We urge you to take a look at your state’s specific laws and regulations relating to union dues.

Miriam: Let’s just touch on after school activities really quick too before we wrap up.

Lisa: After school is also a contentious situation. Courts conflict on whether school districts may prohibit employees from after school Bible study with students. Let’s say a teacher says, “Hey, I would like to participate with my students. We’re going to talk about Christianity after school.” It’s kind of a difficult decision for that district because on one hand, the district could be seen as approving that Bible class, especially because one of their employees is leading it. On the other hand, if the district prohibits the teacher from leading that class, then it could be seen as the district is limiting that teacher’s individual practice.

Miriam: This is where we end up with a lot of, a balancing act of weighing these facts and obligations under the First Amendment and Establishment Clause and all of that. It’s not really cut and dry.

Lisa: Right. The Eighth Circuit. For example, in a recent case Wing vs. Sioux Falls, this was the same thing. The teacher wanted to participate in good news clubs. She wanted to lead the good news club after school with her students, but the policy said no. School districts policy prohibited her from doing that. She sued about this and the Eighth Circuit came down on the teacher side.

The Eighth Circuit said that this violated not only her free exercise, not only her religious rights, but also her free speech rights. It was after school and it was not part of the day, part of the school day. She was entitled to her free speech rights. That was an interesting case, and it was basically the court said this is private speech and it did not show that the district endorsed that religious faith.

Miriam: Basically, all these examples boil down to how fact specific these cases are, and really how you want to know what your board policies are, but when a request is made, balancing is it reasonable and if not thinking outside the box, what else could you kind of compromise on?

Your attorneys will be an invaluable resource in helping you iron out conflicts and avoid going to court when at all possible. Lisa and I hope that you really enjoyed this podcast and that you will give us a high rating. You’ll rate as well on iTunes or Stitcher, wherever you get your podcast from. If you look at the notes for this show, you’ll see our email. Please drop us a line. Let us know what you thought and let us know what other topics you’d like to see discussed on this show. Have a great day.

The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.

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