A bank teller in Kentucky recently sued her employer claiming that she was fired from her job for telling every customer she met to “have a blessed day.” She was just being polite, right? Well, the bank alleges that several customers were offended by the teller’s comment. The teller also allegedly confronted a customer asking “Did you take the Lord’s name in vain?” and proceeded to talk to him about salvation.
The bank is going to argue that the teller’s conduct crossed the line to proselytizing, and justified its response, which included disciplining the teller and then terminating her employment when the conduct continued. But does the employer have to wait for complaints, or is the mere risk of offending customers sufficient for an employer to adopt a policy prohibiting this or similar religious phrases or greetings?
Of course, employees of private (non-governmental) employers do not have First Amendment rights vis-à-vis their employers. But that doesn’t mean that employees have no right to act on their religious beliefs in the workplace. Title VII protects employees from religious discrimination, but also requires employers to accommodate religious practices to the extent that they do not impose an undue hardship on the operation of the employer’s business.
So what is an undue hardship? Well, an accommodation that forces an employer to bear more than a de minimis cost is an undue hardship. However, the fine line between using a greeting like “have a blessed day” and proselytizing (which runs a much higher risk of offending coworkers or customers) can sometimes be hard to determine.
Was the bank just assuming a problem existed without any evidence to show that there was an accommodation that would cause an undue hardship? Whether conduct causes an undue hardship is a fact-specific inquiry and will depend on the nature of the expression, the nature of the business and the impact on customer relations. No doubt, finding the right balance between these competing interests is a challenge.
Stay tuned for more on how this issue unfolds in Kentucky.