Many years ago I worked in a county courthouse. According to those who worked there before me, it was a long-standing tradition that a large Christmas tree would be placed on the first floor and Christmas music was played throughout the building. Any person who walked in the doors would immediately see the tree and hear the music. This practice came to an end a few years after I arrived when a local citizen questioned whether it was permissible.

The reason for the change was basic. Under the First Amendment, the government is forbidden from promoting one religion over others. The Christmas tree became a holiday tree decorated with American flags and other symbols of the United States. The Christmas music was quieted and limited only to those who wanted to softly play music in their offices.

But what if you are an employer in the private sector? Are you restricted in the same way? For answers to these questions, we turn away from the Constitution and look at another law.

Title VII of the Civil Rights Act of 1964 and the North Dakota Human Rights Act prohibit an employer from discriminating against an employee with respect to the employee’s religion. To prove a case of religious discrimination, an employee must show:

1. The employee was a member of a protected class because of the employee’s religion;
2. The employee met the employer’s legitimate employment expectations;
3. The employee suffered an adverse employment action; and
4. The circumstances give rise to an inference of discrimination.

What does this mean, exactly? And what does it have to do with the holiday season?

1. Statistically speaking, there is a really good chance that at least one person in the office is religious. And it is quite likely that an office will employ people of different religious backgrounds. This prong will include any employee who actively (but not outwardly) practices their religion.
2. An employee meets the employer’s legitimate employment expectations when the employee does the job he or she is hired to do. If an employee is hired to be a computer programmer, he or she meets legitimate expectations by writing computer programs and codes. It would not be a legitimate expectation for the computer programmer to also act as the company auto mechanic if the employee was not hired for that purpose.
3. An employee suffers an adverse employment action when the employer does an act that has a negative effect on the employee. This could be anything from a written reprimand to a reduction in hours, to a reduction in pay, and ultimately termination.
4. An inference of discrimination includes treating similarly situated employees who are not members of a protected class in a different manner. This prong is the sticky wicket for employers.

Examples of an inference of discrimination during the holiday season include:

• Making employees say “Merry Christmas” instead of “Happy Holidays” at work, and reprimanding only non-Christian employees who refuse to comply, because the employer is trying to force non-Christian employees to quit.
• Allowing employees of one religion to take time off to attend religious services but not allowing employees of a different religion to do the same.
• Allowing one employee to display religious images on that employee’s desk while prohibiting another employee from displaying different religious images.
• Mandating that all employees participate in the Festivus airing of grievances.
• Allowing harassment of an employee who chose not to participate in the company Julebukking night.

So how does an employer step around these potential holiday landmines? Apply restrictions evenly to all employees and do so on a non-religious basis. Playing Christmas music in the workplace may not be discrimination if the music is always on and is played for legitimate commercial purposes. An employer may not have to permit an employee to put up a giant Christmas tree in the corner of the office if the tree takes up too much space and will affect the productivity of other employees. An employer may allow all employees to display small religious images in their workspace area as long as those images do not emit light or sound.

I am one of the employment law attorneys at SW&L. If you have questions about preventing discrimination at work or you feel you are being discriminated against at work, call 701-297-2890, or send us an email below.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.

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