Legal Mailbag – 11-30-23

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

I am not sure if this is a legal issue, but here’s my question. One of the teachers in my school recently found God, and she has been engaging other teachers in conversation over her belief that others need to take God into their hearts as well.

The other teachers in my school are a tolerant group, but I have received several complaints that this teacher’s actions are intrusive and are making them uncomfortable. During their free periods, these other teachers want either to relax in the teacher’s lounge or to prepare for their classes, and they don’t want to be subject to this teacher’s proselytizing.

I understand the teachers’ concerns, and I wouldn’t want to listen to unsolicited testimonials either. Can I just tell this teacher to knock it off?

Seeking Peace


Dear Peace:

As with most things, it is appropriate here to escalate gradually, rather than jump to the ultimate exercise of authority by directing this teacher to cease and desist from such conversations.

The first step is to ask the teachers whether they have shared their concern directly with the teacher that they want to be left in peace. Sometimes, teachers ask administrators for help when they should just engage in a direct conversation themselves. Here, it would be important to assure that the other teachers have asked the teacher in question to stop engaging them in conversation about religious matters. It may well be that this direct approach will solve the problem.

If it does not, your intervention may be necessary. Here, it is important to consider the nature of the speech. If the teacher in question was haranguing the other teachers about political matters or annoying them with suggestions that they buy life insurance from her, you would be free simply to tell her to stop. The speech here, however, is religious in nature, and therefore some caution is advisable.

Specifically, it will be important that you be able to show that you are not singling out religious speech for disfavor. Given the concern that the teacher could make that claim, the suggestion above – that you tell the concerned teachers that they should ask the teacher directly to stop confronting them with her religious views – is particularly important. You will want to be able to show that you dealt with this teacher’s speechifying on religion as you would with any other speechifying that annoys others. If, however, you confirm that the annoying conduct continues despite requests from others that it stop, you can intervene to address the concern.

If it becomes necessary for you to intervene, Legal Mailbag wants you to be aware that the landscape of employee rights to engage in religious activity has changed. In Kennedy v. Bremerton School District, 597 U.S. __, 142 S. Ct. 2407 (2022), the United States Supreme Court considered the case of a coach who was fired for engaging in prayer after football games. The Court held that the district violated his free exercise rights when it terminated the coach’s employment after he engaged in prayer in public on the football field immediately after a game in violation of a directive to the contrary. See also Mooney and Sieira Millán, “Kennedy v. Bremerton School District: A Coach’s Prayers are Answered,” Shipman & Goodwin School Law Blog (June 29, 2022).

Significantly, writing for the majority, Justice Gorsuch stated that the coach’s prayers were “double-protected” by both the Free Speech and the Free Exercise Clauses:

In the name of religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity.

There, the Court noted that coaches were permitted to consider the time right after the game to be their own time, with the result that their speech and actions at that time were not “pursuant to duty” per Garcetti, but rather personal to them and thus subject to regulation only for compelling reasons. Before Kennedy, most observers would have predicted that a coach’s praying on the 50-yard line immediately after a football game would give rise to a legitimate concern over advancing religion (particularly among players who may want more playing time) that would justify prohibiting such activity. However, after Kennedy, it is a new ballgame, and school officials must now exercise extreme caution in addressing employee religious speech outside the strict requirements of their position.

Here, the question would be whether and how you accommodate the teacher’s exercise of religion. You and other school officials are not only subject to the constitutional requirements, but you also must comply with statutory prohibitions against discrimination against employees on the basis of their religion. Under the 1972 Amendments to Title VII of the Civil Rights Act of 1964, all employers are required to “reasonably accommodate an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).

In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the United States Supreme Court ruled many years ago that requiring an employer “to bear more than a de minimis cost” to provide a religious accommodation is an “undue hardship.” Applying that long-established standard, the Third Circuit recently upheld an employer’s denial of a request for religious accommodation from a UPS driver who for religious reasons could not work on Sundays. Groff v. DeJoy, 35 F.4th 162 (3rd Cir. 2022). However, the United States Supreme Court reversed the Third Circuit in 2023, holding that reliance on a “de minimis” standard is inappropriate. Rather, an “employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business” to show undue hardship that excuses a refusal to accommodate. Groff v. DeJoy, 600 U.S. __, 2023 WL 4239256 (U.S. 2023).

In Groff v. DeJoy, the Court stated that “courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” This new standard is a significant change as to the required scope of accommodations for employee religious practices. For example, in Kluge v. Brownsburg Community Schools, __ F.4th ___, 2023 WL 2821871 (7th Cir. 2023), the court ruled that accommodation was not required for a teacher whose employment was terminated after he refused to use preferred pronouns because of religious convictions. The “cost” in that case was the impact on the school environment, not dollars and cents. Nonetheless, in light of the Groff case, the Seventh Circuit vacated its opinion and remanded the case to the district court for further proceedings. Kluge v. Brownsburg Community Schools, __ F.4th __, 2023 WL 4842324 (7th Cir. 2023).

As you can see, it may be a challenge for school officials and employers more generally to navigate between the rights of individual employees to engage in religious activity and the employers’ need to maintain a peaceful and effective workplace. Here, Legal Mailbag suggests that, if your intervention is ultimately necessary, you sit with the proselytizing teacher, share the concerns that other teachers have expressed, and hear her out as to what she wants to do and why. Significantly, in the Kennedy case, the Court focused on the fact that the coach was “off the clock” when football games end and, therefore was on his own time. The conduct that you confront is occurring during the workday, albeit apparently during down time. Nonetheless, you may establish reasonable expectations in the workplace as to whether and when the teacher may seek to engage others in conversation about her religious convictions. Legal Mailbag is optimistic that you will be able to resolve the concerns of the other teachers through respectful dialog with this teacher and then by establishing ground rules for the teacher to follow. Godspeed!