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Proselytizing In The Workplace

Connecticut Law Tribune Labor & Employment Supplement

February 2002

Authors: Linda L. Yoder

Employer regulation of employee speech in the work place continues to present challenges for both employees and employers. The U.S. Court of Appeals for the 2nd Circuit recently had the opportunity to discuss at length the state's right to prohibit proselytizing by its employees in by consolidating two separate cases. Knight v. State of Connecticut, Department of Public Health, and Quenta v. State of Connecticut Commission on the Deaf and Hearing Impaired were brought by born-again Christians who felt called to proselytize while working with clients. Both were reprimanded for their actions and each brought suit claiming the right to discuss their religious beliefs while performing their jobs. In both cases, the district court found the restrictions on the employees' ability to speak about religious matters with clients did not infringe on their rights to free speech or discriminate against them on the basis of their religious beliefs, and granted summary judgment for the state. Both employees appealed.

The 2nd Circuit considered the two cases together and found that in the circumstances of each case the government had the right to restrict employee speech. Although these cases involved government employers, the rulings should be of interest to private sector employers as well. Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, prohibits discrimination based on religion; and Connecticut has a statute guaranteeing that employees will not be disciplined for the exercise of their right to freedom of speech. Connecticut General Statutes §31-51q prevents any employer from disciplining an employee for the exercise of First Amendment rights. Thus, all employers should look to the principles discussed in Knight when analyzing whether it is appropriate to discipline an employee for religious communications occurring in the workplace.

In Knight, plaintiff Jo Ann Knight, a nurse consultant for the Connecticut Department of Public Health, visited a same-sex couple in their home as part of her job duties. One of the individuals was in the end stages of AIDS. At some point during the meeting, Knight and the two men began discussing religion. After one of the individuals stated that he did not believe he would be punished for his homosexual lifestyle, Knight told him "although God created us and loves us, He does not like the homosexual lifestyle." The man filed a complaint against the Department of Public Health with the Connecticut Commission On Human Rights and Opportunities alleging discrimination on the basis of sexual orientation. The Department of Public Health suspended Knight without pay as a result of this incident and Knight brought suit. The district court granted defendant's motion for summary judgment, finding that Knight's religious speech to her clients caused them distress and interfered with the performance of her duties, thereby permitting the employer take action. In addition, the district court specifically found that Knight could not demonstrate that she was treated differently than other similarly situated employees. Further, the court found that permitting Knight to share her religious beliefs with clients would constitute an undue hardship for the employer.

Nicolle Quental, a sign language interpreter for the state Commission on the Deaf and Hearing Impaired, brought a similar case. Quental served as an interpreter for clients who had mental health disabilities. Her code of conduct as an interpreter provided that interpreters shall not counsel, advise or interject personal opinions when they are interpreting. On an interpreting assignment at a mental health facility, she spoke with the client during a break about smoking. She informed the client that "the Lord had delivered (her) from smoking." She asked the client if she could pray for him so that he might also quit smoking and then prayed for the client in his presence. After learning of the incident, Quental's supervisor told her that this conduct was inappropriate. Thereafter Quental was given an interpreting assignment at the University of Connecticut Health Center. During the language assessment period, when the interpreter and client talk so that the interpreter can assess the client's signing style, Quental engaged in a discussion with the client about religious beliefs. The client told Quental that she had been sexually abused and Quental informed the client that God could help her with her problems. She also gave the client several religious tracts. After it received a complaint about Quental's conduct, the employer reprimanded her. Quental sued. The district court granted the commission's motion for summary judgment, finding that the commission's interest in avoiding disruption in the work place and avoiding a violation of the Establishment Clause outweighed the plaintiff's interests in expressing her religious beliefs to a client. The court also found that Quental had failed to introduce evidence showing that she was being treated selectively.

On appeal, the 2nd Circuit concluded that the proper standard of review of First Amendment Rights by state employees is the balancing test announced by the U.S. Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). The court first looked to see if the speech at issue addressed a matter of public concern, observing that speech that does not touch on a matter of public concern is not entitled to First Amendment protection. Because neither court had addressed this issue, the 2nd Circuit assumed -- without deciding the issue -- that evangelism does touch on a matter of public concern. Second, the court noted that it must consider whether the speech impairs discipline by superiors or harmony among co-workers or impedes the performance of the employee's duties or interferes with the regular operation of the enterprise. The court also observed that the time, place and manner of the speech is significant to the analysis. The court found that the state needed to show only a likely interference with its operations, not an actual disruption. In applying these principles to the cases before it, the court found that the state had made a sufficient showing that the speech was disruptive and interfered with the ability of these individuals to perform their jobs. The court therefore concluded that the restriction of this speech was appropriate. In addition, the court found that the state raised legitimate concerns that allowing state employees to promote religious beliefs while working might violate the Establishment Clause. The court also rejected the plaintiff's argument that the state was required by Title VII to accommodate their religious beliefs by allowing them to use religious speech when dealing with clients.

A review of recent cases reveals that employees are increasingly willing to sue their employers for the right to express their religious beliefs in the workplace. For example, in Downing v. West Haven Board of Education, 162 F. Supp.2d 19 (D.Conn. 2001), a teacher sued both the school district and a number of individual board employees alleging that the board had impermissibly infringed on her right to free speech and free exercise of her religion when it told her to stop wearing a tee-shirt that read "Jesus 2000, J-2K" during instructional time. After reviewing the facts of the case and applying the same principles set forth in Knight, the court granted summary judgment for the defendants.

These rulings are significant in that they highlight for employers the importance of these issues to employees. Courts have examined closely the facts surrounding the restriction to ensure that the prohibition on an employee's speech is limited to the employer's legitimate business interests. The courts appeared to weigh heavily the fact that in most of the cases discussed above, the employer had received complaints from recipients of the unwanted evangelism. In addition, the courts looked closely for evidence that an employer's policy prohibiting certain types of speech in the workplace was applied in a neutral fashion. The clear import of these decisions is that an employer should proceed with caution when addressing these issues.

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