Could holiday decorations mean discrimination claims in your HR stocking?

By: Judy Kneiszel

Publication: Employee Relations Management Today

Date Posted: 11/26/2019

Company owner Carl enjoys the holiday season and wants festively decorated trees placed in the lobby and cafeteria so employees can share in his jolly mood.

HR manager Hazel tries to dissuade him. She doesn’t want to deal with the complaints of non-Christian or non-religious employees who object to these symbols of Christmas.

Hazel says to accommodate the non-Christian religious beliefs of some employees, the company should forego the trees, or alternatively should add holiday decorations associated with other religions.

Have a holly jolly cubicle?

Prohibiting employees from displaying religious decorations in their personal workspaces may give rise to comments about free speech or religious expression violations. Unless the employer is public, however, such complaints probably wouldn’t be valid. Private employers can restrict most free speech as a matter of employment. They can’t, however, take legal action against employees for exercising it.

To appease employees, an employer may want to avoid suppressing religious expression in personal workspaces. The best policy may be to allow small, subtle decorations that are not harming anyone, provided all employees are equally free to express themselves (or not), meaning it’s not allowed for one group but prohibited for another.

One last note on holiday décor

Mistletoe should never be allowed in any area of the workplace, including individual workspaces, because it could prompt unwanted physical contact and subsequent sexual harassment claims.

Does the law discourage decking the halls?

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits employers from discriminating against employees on the basis of religion (among other factors). It generally applies to employers with 15 or more employees, including federal, state, and local governments.

In its Compliance Manual on Religious Discrimination, the Equal Employment Opportunity Commission (EEOC), which enforces the employment provisions of Title VII, says the law does not require that businesses remove wreaths and trees or add holiday decorations associated with non-Christian religions.

The EEOC view is based on the 1989 Supreme Court ruling in Allegheny v. ACLU. In this case the court ruled that a crèche on county courthouse steps violated the establishment clause, which prohibits government actions that unduly favor one religion over another. The display elsewhere of a Christmas tree next to a menorah and a sign proclaiming “liberty,” did not, however, violate the establishment clause.

The Court concluded that while a decorated tree may have religious connotations for some people, it is generally a secular nonreligious symbol. So, if Carl was the mayor, he could allow decorated trees in city hall even if an employee objected.

Holiday decorating is even less restrictive in the private sector since establishment clause constraints do not apply, so Hazel’s objections are probably unfounded. If he wants to, private-business-owner Carl can display overtly religious decorations along with his trees regardless of his employees’ beliefs unless the displays are somehow associated with a condition of employment or mandatory activity.

Key to remember: The EEOC concluded that as a best practice, employers may find that sensitivity to the diversity of their workplace promotes positive employee relations.

About the author
Judy Kneiszel - Human Resources Editor

Judy is an Associate Editor on the Human Resources Publishing Team and she specializes in issues such as recruiting and hiring, onboarding and training, employee communication and discipline, managing problems, team building, inclusion, employee retention, and labor relations

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