The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


Title VII: Religious Expression

December 21, 2004

Dear

I write in response to your inquiry regarding your legal obligations to a staff physician who has religious objections to treating certain patients and whose religious expression has resulted in complaints from staff and patients. Specifically, you ask: (1) whether an employer is required to accommodate a staff physician who refuses to treat gay and lesbian patients because his religious views are "against homosexuality"; (2) whether an employer must accommodate a staff physician who has displayed a cross and an anti-abortion poster in an area visible to staff and patients; and (3) whether religious holiday ornaments can be displayed in your hospital lobby if accompanied by "non-religious" decorations, even if there are staff or patient complaints about the display.

Title VII of the Civil Rights Act of 1964 (Title VII) requires an employer to reasonably accommodate an employee whose sincerely held religious beliefs conflict with a work requirement, unless providing the accommodation would create an undue hardship on the conduct of the employer's business. To be reasonable, the accommodation must eliminate the religious conflict but need not be the employee's preferred accommodation. Undue hardship may be shown if the accommodation would impose "more than de minimis cost" on the operation of the business. Costs to be considered include not only direct monetary costs but also burdens such as diminishing efficiency in other jobs, harassing or otherwise infringing on other employees' jobs or benefits, impairing workplace safety, or causing co-workers to carry the accommodated employee's share of work The determination of whether a proposed accommodation poses an undue hardship must be made on a case-by-case basis.

Assuming that the physician, in fact, believes that providing medical care to gay and lesbian patients is contrary to his religion, the employer would have to consider whether it could reasonably accommodate him without incurring undue hardship. For example, in Bruff v. Northern Mississippi Health Service, Inc., 244 F.3d 495 (5th Cir. 2001), the court held that it would impose an undue hardship to require a mental health counselor's co-workers to assume a disproportionate workload to accommodate her request, on religious grounds, not to counsel clients on their homosexual relationships. In the health care setting that you describe, whether the accommodation would cause an undue hardship would turn on factors such as the number of patients at issue, the number of other physicians available, and how work loads are managed.

That the university is a public institution with public obligations is also a factor. While employees in public institutions are entitled to reasonable accommodation of their religious beliefs and practices, courts have held that a public employer is not required to compromise its public responsibility to provide services in a neutral manner. In a case in which a nurse's religious objections to abortion led her to refuse to participate in emergency procedures that could lead to termination of pregnancy, the court concluded that the hospital was justified in transferring her out of labor and delivery (with no loss of pay or status) because "public trust and confidence requires that a public hospital's health care practitioners--with professional ethical obligations to care for the sick and injured--will provide treatment in time of emergency." Shelton v. Univ. of Medicine and Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000).

Similarly, if a physician seeks on religious grounds to discuss with patients his opposition to pre-marital sex, homosexuality, or abortion, the employer need not accommodate such a practice if it would pose an undue hardship. Undue hardship would exist if allowing him to make such statements to patients would compromise the hospital's ability to provide objective and comprehensive medical care, or if it would reasonably appear that the hospital was endorsing a particular religion. See Baz v. Walters, 782 F.2d 701 (7th Cir. 1986) (government hospital did not violate employee chaplain's Title VII religious accommodation or First Amendment Free Exercise rights by terminating him for proselytizing to patients where this religious practice interfered with his therapeutic duties and with the hospital's philosophy of patient care); Quentel v. Connecticut Commission on Deaf and Hearing Impaired, 122 F. Supp. 2d 133 (D. Conn. 2000) (the employer's interest in maintaining efficiency and avoiding a disruption of the workplace or appearing to endorse a religion in violation of the Establishment Clause outweighs the plaintiff's interest in expressing her religious beliefs to a client while on an interpreting assignment), aff'd sub nom, Knight v. Connecticut Dept. of Public Health, 275 F.3d 156 (2d Cir. 2001).

You also inquired about the legality of certain religious displays that have led to complaints from staff and patients. Specifically, you state that in the office where patients are seen, a physician has placed an anti-abortion poster with a cross above it, and that he contends the poster is protected religious expression.

Employees do have some rights to express their religious views in the workplace. For example, most employers will not be able to show that it would be an undue hardship to permit one employee to wear a yarmulke or another to display a cross in his or her private office. However, Title VII does not confer absolute freedom of expression on employees merely because that expression is religiously motivated.

Employers are generally entitled to define what public image they wish to project and to determine what displays or expressions will be used to reflect that image. Title VII does not compel employers to accommodate employees' religious expression that could reasonably be perceived by patrons as an expression of the employer's views. E.g., Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 476 (7th Cir. 2001) (employer reasonably accommodated plaintiff's religious practice of sporadically using the phrase "Have a Blessed Day" when it permitted her to use the phrase with co-workers and supervisors who did not object, but employer lawfully prohibited her from using the phrase with customers where a regular client objected, since allowing such a practice in the face of objections would have posed an undue hardship); Chemers v. Minar Ford, Inc., 2001 WL 951366 *5 (Minn. 2001) (business owner who imbued his car dealership with his Christian religious beliefs need not alter his practices to accommodate non-Christian employees who objected, as long as employees were not required to observe or participate in the employer's religion as a condition of employment).

Public employers are also governed by the First Amendment, which both protects employees' right to expression and limits expression that can reasonably be perceived to constitute government endorsement of a particular religion. Tucker v. California Dept. of Education, 97 F.3d 1204, 1216 (9th Cir. 1996) (state employer could not impose a total ban on religious expression where it allows other personal expression; the ban must be limited to expression that could reasonably convey an impression of state endorsement). See also Draper v. Logan County Public Library, No. 1:02CV-13-R (W.D. Ky. Aug. 29, 2003) (public library could not prohibit employee from wearing a necklace with a cross; such unobtrusive displays of religious adherence could not be interpreted by a reasonable observer as government endorsement of religion) and Peloza v. Capistrano Unified School Dist., 37 F.3d 517, 522 (9th Cir. 1994) (school district was justified in prohibiting a teacher from talking with students about religion during the school day because of the likelihood that students would equate the teacher's views with those of the school).

An employer can also restrict expression that disrupts operations. In Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995), the court concluded that it would be an undue hardship for the employer to allow an employee to wear a graphic anti-abortion button where doing so disrupted the workplace. In Wilson, the court found that the employer had reasonably accommodated the employee by allowing her to wear the button in her cubicle, but requiring her to take it off or cover up the picture when she left her cubicle. Here, it is possible that a reasonable accommodation may be to permit the doctor to hang the poster in an area such as a personal workspace where it would not be visible to co-workers or to patients.

Employers also need not accommodate religious expression that is hostile or demeaning to patients or colleagues. In Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004), the court held that the employer could terminate an employee who refused to remove anti-gay scriptural passages that he had posted in his personal workspace, where they were visible to co-workers and demeaned homosexual employees.

Finally, you asked whether an employer would be required to allow religious holiday ornaments in public areas if non-religious ornaments are displayed there and whether the answer to that question differs if patients or staff complain about it. By public areas, we assume you are referring to areas open to staff and the public, as opposed to employees' personal offices. As discussed above, a private employer can generally choose the image that it wants to convey in its public spaces and Title VII would not require an employer to alter that image to incorporate the beliefs of individual employees. Because this is a public employer, First Amendment considerations may affect the kinds of holiday displays that are permissible. We recommend that you contact the hospital's counsel to discuss First Amendment implications of the particular display you are considering.

This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. I hope that it provides you with information which can help you to resolve this situation. If you have any additional questions, please feel free to call me at 202-663-4638.

Sincerely yours,

Dianna B. Johnston
Assistant Legal Counsel


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