Regulating Employee Speech Under Garcetti and its
Progeny: Political Speech, Academic Freedom, and
Religious Expression
Michael Smith, Lozano Smith, Fresno, CA
Presented at the 2017 School Law Seminar, March 23-25, Denver, Colorado
The NSBA Council of School Attorneys is grateful for the written contributions of its members. Because
Seminar papers are published without substantive review, they are not official statements of NSBA/COSA,
and NSBA/COSA is not responsible for their accuracy. Opinions or positions expressed in Seminar papers
are those of the author and should not be considered legal advice.
© 2017 National School Boards Association. All rights reserved.
NSBA Council of School Attorneys
2017 School Law Seminar
Regulating Employee Speech Under Garcetti and its
Progeny: Political Speech, Academic Freedom and
Religious Expression
By
Michael E. Smith, Partner
Dulcinea Grantham, Partner
1
n 2016, the country experienced a national election where emotions ran high and
opinions were both strongly held and frequently shared. Over the course of the
electoral contest, Americans saw professional athletes refuse to stand for the
national anthem, friends and colleagues post scathing observations of political
candidates on social media, minority and religious groups experiencing direct attacks
and politicians on all sides attacking one another on a level never before seen. School
districts saw the same passion and anger displayed on their campuses, by both students
and employees.
With the country still deeply divided, tensions will likely remain high. So how are
school districts to balance their employees’ right to express their views on matters of
public concern with employers’ right to maintain order in the workplace? These times
challenge traditional notions of free speech and increase the tension between these rights
and the workplace. This article attempts to provide guidance to assist school districts in
navigating this rocky terrain.
This article also provides guidance to help school districts, whose employee ranks
and student populations are increasingly diverse, to balance correctly employees’ right
to exercise freely their religious beliefs and practices with districts’ need to avoid undue
hardships.
I. INTRODUCTION
The First Amendment to the United States Constitution provides that “Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people
I
2
peaceably to assemble, and to petition the government for a redress of grievances.” Most
states have adopted similar protections for their citizens. These constitutional guarantees
of free speech and religion run to every American citizen and grant each of us broad
rights to speak and to practice any religion with limited exceptions, such as restrictions
on the time, place and manner of the speech. Public employee speech has become a
controversial issue, because while public employees have a right to First Amendment
protection, their employers have a duty to maintain efficient operations. Within the
Supreme Court jurisprudence on free speech rights, a number of cases specifically
address the speech rights of public employees and when and how their speech may be
regulated.
This paper will review the legal framework for determining whether a public
employee’s speech and religious exercise is protected by the First Amendment and will
also examine how the courts have balanced limits on employee speech and religion with
academic freedoms. This paper will detail the factors that school districts should consider
when regulating employee’s free speech and religious practices.
II. PUBLIC EMPLOYEE SPEECH – THE LEGAL FRAMEWORK
The Supreme Court has addressed the issue of public employee free speech rights
in a series of cases. These cases, read together, form the general approach the courts take
when evaluating a First Amendment claim regarding a public employee’s speech.
A. Pickering v. Board of Education, 391 U.S. 563 (1968)
The first critical case concerning public employee speech is Pickering v. Board of
Education. In Pickering, a school district dismissed a teacher for writing to the local
3
newspaper a letter attacking a number of the district’s policies and actions, among other
things. After the letter was published, the school board terminated the teacher, claiming
that his letter was “detrimental to the efficient operation and administration of the schools
of the district.” The teacher sued the school district, claiming that his letter was protected
speech under the First Amendment. The school district argued that the letter not only
disrupted the district’s operations, but also that the statements made in the letter were
false. After weighing the interests of the school district in promoting the efficiency of
public services it provides against the teacher’s interest in commenting on matters of
public concern, the Supreme Court held that the dismissal was unlawful. The Court found
no evidence that the teacher’s letter “impeded the teacher's proper performance of his
daily duties in the classroom or . . . interfered with the regular operation of the schools
generally.”1
B. Connick v. Myers, 461 U.S. 138 (1983)
Following Pickering, the Supreme Court again addressed the issue of employee
speech in Connick v. Myers. In Connick, an assistant district attorney was transferred to
another section of the office. She was so upset by the transfer that she created a
questionnaire to colleagues that addressed issues including office morale, confidence in
superiors and pressure to work on political campaigns. She was terminated from
1 391 U.S. 563,572-573 (1983).
Public employees have a First Amendment right to speak on matters
of “public interest” or “public concern.”
4
employment in part for distribution of the questionnaire. The Supreme Court examined
the questionnaire and determined that most of it dealt with matters that were not of public
concern, with the exception of the question related to pressure to work on political
campaigns. The Court noted that the employee’s actions occurred while at work,
supporting her employer’s “fears that the functioning of his office was endangered.” Due
to the disruptive nature of the speech, the Court concluded that the termination did not
violate the First Amendment. The Court said that in order to determine whether the main
thrust of a public employee’s speech is private (personal) or public, a court must examine
“the content, form, and context of a given statement, as revealed by the whole record.”2
The Court also noted that issues of public concern must relate to a “matter of political,
social, or other concern to the community.”3 The Court determined that the balancing test
introduced by Pickering must be utilized only if the speech at issue involves matters of
public concern.
C. Garcetti v. Ceballos, 547 U.S. 410 (2006)
More recently, in Garcetti v. Ceballos, the Supreme Court further clarified the
standards applied in Connick and Pickering. In this case, a district attorney claimed that
he was passed up for a promotion because he had criticized the legitimacy of a warrant.
The Supreme Court held that “when public employees make statements pursuant to their
2 461 U.S. 138, 147-148 (1983). 3 Id. at 146.
To determine whether an employee’s speech is a matter of public concern, courts
examine the “content, form, and context” of a given statement.
5
official duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer discipline.”4
In other words, the court, as in Connick, added another limit to public employee speech
protections, holding that speech made pursuant to official duties is not protected.
D. Putting it All Together
Based on the preceding court cases, the standard for public employee speech
requires an analysis of the following:
1. Whether the employee is speaking as a public citizen or pursuant to official
duties.
2. Whether the employee’s speech relates to a matter of public or private concern
based on its content, form and context.
3. Whether the interests of the employee as a private citizen in commenting on
matters of public concern outweigh the interests of the public employer in
promoting the efficiency of the public services it performs, or vice versa.
Carefully analyzing these factors will assist in determining the potential risks for
regulating public employee speech.
4 547 U.S. 410, 421 (2006).
When the employee is speaking pursuant to his or her official duties, and not as a private
citizen, First Amendment protections do not apply.
6
E. Legal Framework Review
1. STEP ONE: Citizen or Employee?
The first step that a public employer must take is to determine whether the
employee spoke as a private citizen or public employee. For an employee to be speaking
as a private citizen, the speech itself cannot have been made in the course of the
employee’s ordinary duties. When evaluating this factor, public employers should
consider the speech at issue from all perspectives, including whether the speech relates to
the public employee’s job duties and whether the speech was made while on or off duty.
As a general rule, “chain of command” speech, that is, speech by an employee to his/her
superiors, is “employee” speech.
2. STEP TWO: Issue of Public Concern?
If the public employer determines that the speech was made as a private citizen,
the employer must then analyze whether the speech was made regarding a matter of
public concern. In Connick, the Court identified speech as a matter of public concern
when it touched on aspects of “political, social, or other concern to the community.”5
Typically, personal issues and grievances are not likely to be found as issues of public
concern. The employer should focus on identifying speech that may implicate broader
public issues and current events.
3. STEP THREE: Balancing Test
After determining that a public employee spoke as a private citizen on a matter of
public concern, it is necessary to balance the interests of the employee in speaking on the
5 Connick, 461 U.S. at 146.
7
matter with the interests of the public employer, including the impact that such speech
has in the workplace. For example, in Graziosi v. City of Greenville,775 F.3d 731 (5th
Cir. 2015), discussed in more detail below, the speech at issue dealt with an employee’s
displeasure with the police chief’s decision not to allow employees to drive department
vehicles to a nearby town to attend a funeral. The court found that while the employee
may have had a desire to show a shortcoming of the department, the employee’s speech
was attacking relationships within the department and represented a level of
insubordination to a direct command. That was enough to show that the department could
lose some ability to maintain discipline in future situations, resulting in the government
maintaining a prevailing interest. As such, measuring the speech as it relates to discipline
and employer efficiency is a good starting point for this analysis.
Public Concern Private Concern
Official Duties Not protected Not protected
Private Citizen Highest protection If work nexus, perform
balancing test
III. ANALYZING PUBLIC EMPLOYEE SPEECH
While Pickering, Connick and Garcetti provide a framework for analyzing
employee speech, additional clarification has been provided by the court decisions listed
below. The decisions provide some specific examples demonstrating the extent to which
public employers may regulate employee speech.
8
A. California Teachers Ass’n (CTA) v. Governing Board, 45 Cal. App. 4th
1383 (1996)
While the cases below highlight Garcetti’s limited effect on an employee’s actual
or perceived political activity and speech outside of the job site, political speech and
activity has generally been limited on school campuses and in the classroom. In most
states, there are specific statutory limitations on political speech and activity by public
school employees. For example, California, Education Code section 7055 specifically
authorizes school officials to place restrictions on the political activities of employees in
two situations: (1) engaging in political activity during working hours and (2) political
activity on the premises of the agency.6
In CTA, the court upheld a prohibition on teachers wearing political buttons in the
classroom. The court found that the school district had “the power to prevent its
employees from wearing political buttons in its classrooms and when they are otherwise
engaged in providing instruction to the district’s students. On the other hand we find the
district has no such power when its employees are not engaged in instructional
activities.”7
In other words, school districts have authority to limit teacher expression in the
instructional setting in order to distinguish between individual teacher and school
expression or speech. The court, in relying on an opinion of California’s Attorney
General, found that the teachers’ wearing of political buttons involved a position other
than neutrality on a matter of political controversy, and that this action could be
6 Absent these permissible restrictions, the Education Code generally prohibits school employers from placing
any restriction on the political activities of any officer of employee. (CAL. EDUC. CODE § 7052.)
7 45 Cal. App. 4th 1383, 1385 (1996).
9
associated with the school because it occurred in the classroom in front of a captive
audience of students, thereby bearing the “imprimatur” of the school. The court also held
that the district’s prohibition on political buttons being worn in the classroom was
reasonably related to the legitimate pedagogical concern of preventing students from
viewing political material they may not understand and to protecting the district against
the perception that its classrooms were being used for partisan political advantage.
B. Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008)
In Spanierman, a teacher’s contract was not renewed after complaints regarding
his MySpace profile were submitted to his employer. The teacher had posted nude
pictures and engaged in online conversations with students in a “peer-to-peer like”
manner. The teacher challenged the termination as retaliation for his speech on the
private MySpace account.8
The court first examined whether the teacher’s online speech was made as a
private citizen or a public employee and determined that the speech was not made
pursuant to the teacher’s employment duties. In applying this factor, it was clear that the
postings on MySpace were made in the employee’s capacity as a private citizen, not a
public employee. The court found that “[t]here is no indication in the record that the
Plaintiff, as a teacher, was under any obligation to make the statements he made on
MySpace.”9 After determining that the teacher’s speech was made as a private citizen, the
court then considered whether it involved a matter of public concern. The court only
found one aspect of the MySpace account to be of public concern: a poem regarding the
8 576 F. Supp. 2d 292, 297 (D. Conn. 2008). 9 Id. at 309.
10
Iraq war.10 The court found that the poem was not the basis for the teacher’s termination
and therefore, his claim that he was terminated in retaliation for his speech was found to
be without merit. The court found that the teacher’s speech on MySpace was
inappropriate and disruptive to the educational environment that his employer strived to
maintain and upheld the termination.11
C. Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013)
In Bland, sheriff’s department employees were terminated upon the reelection of
an incumbent sheriff after they had supported the sheriff’s opponent during the election
campaign. The employees alleged that the incumbent sheriff refused to reappoint them
based on their political support for his election opponent.12 The speech in question
involved two incidents that took place prior to the election. In the first incident, one of the
plaintiffs “liked” the opposing candidate’s Facebook page, while the second incident
involved a department employee making supportive remarks on the opposing candidate’s
Facebook campaign page. At trial, the district court granted summary judgment for the
sheriff, holding that the employees’ speech was not protected speech under the First
Amendment. On appeal, the Fourth Circuit reversed the summary judgment, holding that
making comments on a Facebook page was the same as having a yard sign for a political
candidate in one’s front yard.13
10 Id. at 310. 11 Id. at 313. 12 730 F.3d 368, 372-73 (4th Cir. 2013). 13 Id. at 386.
11
In reviewing the threshold question posed in Garcetti, the court found that the
employees’ actions were those of private citizens.14 As in Lane v. Franks,15 discussed
below, the court noted that even though the speech at issue was directed at the incumbent
sheriff and was directly related to the speakers’ job, their speech was still that of private
citizens.
D. Graziosi v. City of Greenville, 775 F.3d 731 (5th Cir. 2015)
In this case, a police sergeant was terminated after posting on her personal
Facebook page statements that criticized her superiors for not letting officers drive police
vehicles to a funeral for a fallen officer in another city.16 The sergeant also posted her
remarks on the mayor’s Facebook page.17
Applying the Pickering balancing test, the court held that even assuming the
sergeant’s comments were made as a private citizen (on her personal Facebook page) on
a matter of public concern (prohibiting officers from using police vehicles to attend an
official funeral), the city’s interests in keeping harmony and disciplinary order in the
workplace outweighed the police officer’s interests. The Fifth Circuit cited language from
Lane, in which the Supreme Court stated that “the critical question under Garcetti is
whether the speech at issue is itself ordinarily within the scope of an employee’s duties,
not whether it merely concerns those duties.”18
14 Id. at 387. 15 134 S. Ct. 2369 (2014). 16 775 F.3d 731, 734 (5th Cir. 2015). 17 Id. at 734. 18 Id.at 737.
12
Graziosi presents several important considerations for school districts.
Specifically, the court acknowledged that public employees can identify themselves as
public employees through electronic postings and that doing so does not automatically
eliminate First Amendment protection for their speech.
E. Czaplinski v. Board of Educ. of Vineland, No. 15-2045, 2015 WL 1399021
(D.N.J. Mar. 26, 2015)
In Czaplinski, a school district security guard was terminated after her employer
received an anonymous report regarding comments she posted on social media. The
security guard posted “Praying hard for the Philly cop shot today by another black thug
… may[be] all white people should start riots and protests and scare the hell out of
them”19 after a local police officer was killed in the line of duty by an African American
assailant. The district received an anonymous email referring to the Facebook comments
and suggesting that the district was employing a racist security guard. The district
eventually terminated the security guard based on the Facebook comments that were
determined to be inflammatory.
The court found that the security guard was speaking as a private citizen, because
she was speaking “on her own time” and “outside of her job duties.” The court ultimately
found that the school district’s actions did not violate the First Amendment because the
security guard failed to show that “her interest in free speech likely outweighs
19 2015 WL 1399021 *1 (D.N.J. Mar. 26, 2015).
The critical question under Garcetti is whether the speech at issue is itself ordinarily
within the scope of an employee’s duties, not whether it merely concerns those duties.
13
Defendant’s interest in avoiding a perception of racial bias and maintaining security.”20
The court recognized that the district had a significant interest in ensuring that its
employees, particularly security guards whose positions require dispute resolution and
maintenance of the peace, are respected and do not appear to be biased against certain
groups of people.
F. Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016)
In 2016, the Supreme Court determined that an employee may mount a First
Amendment challenge to employer’s adverse action even if the employer’s action was
based on a mistaken perception that the employee engaged in political activity.
Heffernan establishes that actual engagement in a protected activity is not an
element that must be proven to prevail in First Amendment retaliation claims. Instead,
retaliation claims must be evaluated based on the employer’s motive and whether that
motive was constitutional, regardless of whether the motive was based on actual facts or
mistaken perception.
During the 2006 mayoral election in Paterson, New Jersey, a police officer was
observed picking up and holding a yard sign for the opponent of the incumbent police
chief. Unbeknownst to his superiors, the officer was picking up a sign for his bedridden
20 Id. at *5.
Employers should determine when and where electronic speech that is at issue occurred,
because if the speech at issue occurred off the worksite, and outside of the employee’s
work hours, such speech is likely to be determined to be that of a citizen.
14
mother, not engaging in any political activity for himself. Word of this sighting quickly
spread throughout the department, and the employee was demoted for violating policies
prohibiting involvement in political campaigns.
Both the district court and the court of appeals held that for a retaliation claim,
Heffernan needed to show that he actually exercised his free speech and association
rights prior to the city’s adverse action. Both courts determined that Heffernan was not
deprived of any First Amendment right because he never engaged in a constitutionally
protected political act.
The Supreme Court heard Heffernan’s appeal and rejected the lower courts’
rationale, reasoning that “[w]hen an employer demotes an employee out of a desire to
prevent the employee from engaging in political activity that the First Amendment
protects, the employee is entitled to challenge that unlawful action . . . even if, as here,
the employer makes a factual mistake about the employee’s behavior.” Simply put by the
Supreme Court, “the government’s reason for demoting Heffernan is what counts.”21
IV. ACADEMIC FREEDOM AND THE FIRST AMENDMENT
Academic freedom is generally the “professional discretion that a public school
teacher may exercise in the course of performing his or her teaching functions.”22 The
concept of academic freedom and free speech rights are frequently conflated, with the
former term used to justify an educator’s selected curriculum, course content or teaching
methodology.
21 136 S. Ct. 1412, 1418 (2016). 22 Uerling, Academic Freedom in K-12 Education, 79 NEB. L. REV. 956 (2000).
15
The concept of academic freedom was first introduced in Supreme Court
jurisprudence through a dissent by Justice Douglas in the case of Adler v. Board of
Education, 342 U.S. 485 (1952). In the dissent, Justice Douglas said that the Court’s
decision to uphold a statute that banned state employees from belonging to “subversive”
groups and the process by which organizations were determined to be “subversive”
would “raise havoc with academic freedom.” Justice Douglas argued that under the
statute at issue in the case, teachers would be so fearful of being identified as a member
of a “subversive” group that they would be reluctant to express fully their ideas on topics
with their students. In Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Court
reiterated the importance of academic freedom, holding, “[o]ur Nation is deeply
committed to safeguarding academic freedom, which is of transcendent value to all of us
…. That freedom is therefore a special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the classroom.”23
While the concept of academic freedom at the post-secondary level differs greatly
from that in the K-12 setting, teachers at the elementary and secondary levels are
generally thought to have some amount of academic freedom. At the K-12 level, local
school boards have broad powers in selecting and adopting curriculum, and state boards
of education generally have content or curriculum standards that guide the selection of
curriculum and lesson content. Notwithstanding the broad authority of school boards over
educational curriculum, teachers maintain some level of academic freedom to determine
how lessons and curriculum will be taught, as well as First Amendment rights to engage
in certain speech in the classroom.
23 385 U.S. 589, 603 (1967).
16
Examining cases involving academic freedom in K-12 settings, Donald Uerling
noted in the Nebraska Law review that “where issues of curriculum and instruction have
been involved, teachers consistently have lost their challenges to school authority.
Especially in matters of program content, the authority of a school is never questioned.”24
For example, in 1994 the Ninth Circuit determined that a school district directing a high
school biology teacher to teach the theory of evolution was not a violation of his First
Amendment rights or notions of academic freedom.25 Thus, while the concept of
academic freedom exists to provide K-12 teachers with some degree of autonomy over
how they deliver curriculum and lessons, courts have generally recognized the broad
authority of school boards and local departments of education to control content to be
taught in their classrooms.
V. FREEDOM OF RELIGIOUS EXPRESSION
Just as public employees have free speech rights guaranteed under the First
Amendment of the United States Constitution, they similarly have a constitutional right
to the free exercise of their religion. Title VII of the Civil Rights Act of 196426 protects
public school employees from religious discrimination. As our schools continue to
increase in diversity, both in their student and employee populations, school districts
should have a solid understanding of the extent to which they must accommodate an
employee’s exercise of his or her religion.
24 Uerling, 79 NEB. L. REV. at 968. 25 Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994). 26 42 U.S.C. § 2000e.
17
In its compliance manual, the federal Equal Employment Opportunity
Commission (“EEOC”) defines religion, as does Title VII, to include:
[A]ll aspects of religious observance and practice as well as belief. Religion
includes not only traditional, organized religions such as Christianity, Judaism,
Islam, Hinduism, and Buddhism, but also religious beliefs that are new,
uncommon, not part of a formal church or sect, only subscribed to by a small
number of people, or that seem illogical or unreasonable to others. Further, a
person’s religious beliefs “need not be confined in either source or content to
traditional or parochial concepts of religion. A belief is “religious” for Title VII
purposes if it is “‘religious’ in the person’s own scheme of things,” i.e., it is “a
sincere and meaningful belief that occupies in the life of its possessor a place
parallel to that filled by … God.” An employee’s belief or practice can be
“religious” under Title VII even if the employee is affiliated with a religious
group that does not espouse or recognize that individual’s belief or practice, or if
few – or no – other people adhere to it.27
The EEOC further recognizes that religious observances or practices may include
“attending worship services, praying, wearing religious garb or symbols, displaying
religious objects, adhering to certain dietary rules, proselytizing or other forms of
religious expression, or refraining from certain activities.” Determining whether a
practice is religious turns not on the nature of the activity, but on the employee’s
motivation for the activity. The same practice might be engaged in by one person for
religious reasons and by another person for purely secular reasons. In this case, the
former may require accommodation by an employer, while the latter would not.
To determine the extent to which a school district employer must accommodate
an employee’s religious beliefs and practices, an understanding of the framework under
which courts analyze these cases is helpful.
27 U.S. Equal Employment Opportunity Commission, Compliance Manual, Section 12-I(A)(1) (July 22,
2008).
18
A. Is the Practice or Belief a Religious One?
The first step to analyzing whether a religious belief or practice must be
accommodated is to determine whether it is a religious practice or belief. To that end,
courts will rely on the definition of “religion” under Title VII. While employers can
inquire as to the reason an accommodation may be needed to determine if it is for
religious or other purposes, employers must be cautious in challenging the existence of
the religious belief once one is articulated.
1. Adeyeye v. Heartland Sweeteners, 721 F.3d 444 (7th Cir. 2013)
In Adeyeye, the employee was terminated for using vacation and unpaid leave to
travel to Nigeria for four weeks to attend his father’s burial and attend to related rituals.
The employer questioned whether the leave was for the employee’s exercise of his
religious beliefs. The court found that the employee’s statements in his requests for leave
indicating that the spiritual import of the various rituals attendant to his father’s burial to
the afterlife were sufficient to demonstrate the leave was for religious purposes.
2. Tiano v. Dillard Department Stores, 139 F.3d 679 (9th Cir. 1998)
Here, the employee requested time off to take a pilgrimage during a time of year
that the employer had in place a “no leave” policy. Although the request for leave was
denied, the employee went on her pilgrimage. She was terminated from her position upon
her return. The court found that while the trip was motivated by the employee’s religion,
Catholicism, the trip itself was not for religious purposes. Rather, the court determined
the trip to be a personal preference of the employee.
19
3. Vetter v. Farmland Industries, 120 F.3d 749 (8th Cir. 1997)
This case provides another example of a court finding a request for
accommodation based on a personal preference rather than a religious belief. Here, the
employee requested an exemption from the requirement that he live in his trade territory
so that he could relocate to a city with a more active Jewish population and synagogue.
The court found that this desire to relocate was a personal preference, and the employer
was not obligated to accommodate the employee.
B. Is the Belief “Sincerely Held?”
Once an employer understands that an employee’s request for accommodation is
due to a religious belief or practice, the employer must confirm that the employee’s
religious belief is sincerely held. According to the EEOC, “factors that – either alone or
in combination – might undermine an employee’s assertion that he sincerely holds the
religious belief at issue include: whether the employee has behaved in a manner
markedly inconsistent with the professed belief; whether the accommodation sought is a
particularly desirable benefit that is likely to be sought for secular reasons; whether the
timing of the request renders it suspect (e.g., it follows an earlier request by the employee
for the same benefit for secular reasons); and whether the employer otherwise has reason
While “religion” is broadly defined under Title VII, employers must examine whether a
request for accommodation from an employee is motivated by the employee’s religious
belief or a personal preference.
20
to believe the accommodation is not sought for religious reasons.”28 No single factor is
dispositive for determining the sincerity of the employee’s belief.
1. Tagore v. United States, 735 F.3d 324 (5th Cir. 2013)
In Tagore, the employee worked at the Internal Revenue Service (IRS) and
requested permission to wear a kirpan – a Sikh ceremonial sword – while at work. The
sword typically has a long blade and could be used as a weapon. The IRS evaluated the
request and considered whether other alternatives, such as sewing the blade into a sheath
or dulling the blade, might be acceptable to the agency and the employee. The court
determined that the sincerity of the employee’s beliefs would require an examination of
her individual credibility, and factors that may be considered were the fact that she was
willing to lose her job to wear the kirpan and the Sikh requirements for the kirpan. The
court found that the IRS’s refusal to grant the accommodation based on undue hardship
was permissible. The court specifically focused on the fact that the employee’s requested
accommodations were not reasonable in that the prohibition on weapons in a federal
building was standard and that security guards would be required to determine daily
whether the kirpan had the dulled blade as discussed.29
2. EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1996)
In this case, a Jewish employee made a request for leave from her employer to
observe Yom Kippur. The employer denied the request, disbelieving the employee had a
28 Id. at Sec. 12-I(A)(2). 29 The employee and the government later entered into an agreement providing the employee a three-year
exemption from federal law and allowing her to wear her kirpan in certain federal buildings. Orzeck, U.S.
Settles Religious Bias Suit, Allows Sikh Knife At IRS, LAW360 (Nov. 5, 2014), available at,
https://www.law360.com/articles/593872/u-s-settles-religious-bias-suit-allows-sikh-knife-at-irs (as of
January 9, 2017).)
21
sincerely held religious belief because in her eight-year tenure, the employee had never
before requested leave for a religious observance. The employee also acknowledged that
she generally was not a very religious person. The court found in favor of the employee
and rejected the employer’s determination that employee’s need for leave was not based
on a sincerely held religious belief. The court found that the evidence presented
demonstrated that the employee’s religious beliefs had strengthened in recent years based
on various life events, including the birth of her child and death of her parent.
C. The Scope of the Duty to Accommodate
Once an employer has information that an employee’s request for accommodation
is based on a sincerely held religious belief, the employer must determine whether the
employee’s request may be reasonably accommodated. A reasonable religious
accommodation is any adjustment to the work environment that will allow the employee
to comply with his or her religious beliefs. In considering the reasonableness of granting
an accommodation, any hardship arising from granting the accommodation must be more
than a de minimis cost or burden. The need for accommodation most frequently arises
where an employee’s religious beliefs, observances, or practices conflict with an
employer policy, the employee’s job duties or the application process. The employer may
either grant the requested accommodation, if doing so would not create an undue burden
on the employer; deny the accommodation, if it would create an undue burden; or
In considering the sincerity of an employee’s religious belief, employers should consider
the timing and circumstances of the employee’s request, the nature of the request and
the consistency of the request with the employee’s professed belief.
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develop an alternative accommodation that harmonizes the employee’s religious practice
with the employer’s policy or practice.
1. EEOC v. Abercrombie & Fitch Stores, 135 S. Ct. 2028 (2015)
In Abercrombie, a retail clothing store had a policy that required employees to
maintain a certain “look” consistent with the clothing the retailer sold. This policy
included a prohibition on sales clerks wearing a hat or cap of any kind. A female job
applicant wearing a head scarf as part of her Muslim beliefs interviewed with the retailer.
The applicant did not specifically tell the retailer that she was Muslim, nor did she
indicate the need for any accommodation in the application and/or employment context
for religious purposes. She was denied a position with the retailer because the retailer
assumed that her religious beliefs would prevent her from conforming to the ban on
hats/caps.
The Supreme Court found that the retailer’s refusal to hire the applicant amounted
to discrimination based on religion. Recognizing that the retailer may have had little to no
information about the applicant’s religious beliefs, the Court found that upon observing
the applicant wearing a head scarf the retailer had “at least a suspicion” that the applicant
would need an accommodation to the policy based on her religion. The refusal to hire the
applicant, without considering possible accommodations, violated the applicant’s civil
rights. Unlike cases before it, which required actual notice of the need for a religious
accommodation from the employee, Abercrombie stands for the proposition that if an
employer has an “inkling” or should have known that an accommodation may be
necessary for an employee or job applicant, it must consider accommodation(s).
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2. Baker v. Home Depot, 445 F.3d 541 (2nd Cir. 2006)
In Baker, the employee requested that he not be scheduled to work on Sundays as
an accommodation for his religious beliefs, which required him to refrain from
performing any work on Sunday. The employer determined that not scheduling the
employee to work on Sunday would be an undue hardship. As a compromise, the
employer offered an alternative accommodation of scheduling the employee to work in
the afternoon or evenings on Sundays, rather than the mornings, which would allow the
employee to attend church services. The court found that this proposed alternative
accommodation was not a “reasonable” accommodation under Title VII because the
employee’s religious views required not only attending Sunday church services but also
refraining from work on Sundays; thus, the employer was required not to schedule the
employee for Sunday work.
3. Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998)
In Rodriguez, a police officer requested to be relieved of having to guard abortion
clinics because he opposed abortion due to his religious beliefs. The city did not grant the
officer’s requested accommodation, finding that relieving him of such duties completely
would create staffing difficulties and public safety issues. However, as an alternative
accommodation, the city offered to allow the officer to exercise his right under a
collective bargaining agreement to transfer to a different district without any abortion
clinics. The court upheld the city’s accommodation, finding that Title VII does not
compel an employer to grant the employee’s preferred accommodation.
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VI. APPLYING THE FREE SPEECH FRAMEWORK TO SCHOOL
EMPLOYEES
A. Employee Speech
With the Pickering, Connick and Garcetti framework in mind, let’s examine how
that framework might apply to hypothetical cases involving school employee speech.
1. The National Anthem and the Coach Who Won’t Stand
A school district teacher who serves as the varsity football coach has decided to
join professional athletes in refusing to stand when the national anthem is played before
the game. Some of his players have followed his cue. A number of parents have
complained to the district that the coach is being disrespectful and “anti-American.” The
players who stood have gotten into verbal altercations with the players who will not
stand, resulting in tension among team members. Can the school district discipline the
coach?
In this scenario, the coach taking a knee instead of standing for the anthem is
speech, triggering a First Amendment analysis; therefore, the school district should first
examine whether the coach is “speaking” as a private citizen or a public employee. Here,
his expressive conduct—taking a knee during the national anthem, is done in the course
of his duties as an employee while coaching a football team and therefore he is likely
speaking in the context of his employment. Next, an examination of whether this is a
An employer who knows or should know of a conflict or potential conflict between the
employee’s religious belief or practice and their job, should consider whether an
accommodation may be necessary.
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matter of public or private concern demonstrates that, in this context, the action is one
involving a public concern, namely protesting discriminatory treatment of racial or other
minority groups, a matter of significant public discussion. Finally, the district must
examine whether its interest in maintaining a safe and successful sports program
outweighs the employee’s interest in the speech. The district’s ability to regulate the
speech in this case is likely to turn on the level of disruption that the coach’s conduct
causes to the program. The more disruptive the conduct, the more likely the speech can
be regulated. However, before regulating the speech here, the school district would be
wise to consider whether there are any means short of regulation that potentially address
concerns with the speech/expression at issue. For example, is there an opportunity to use
this as a “teachable moment” and have discussions with the coach and players about their
respective positions and how to harmonize those in a way that does not impact the team?
The district should also consider whether an outright prohibition on the coach’s
expressive conduct is the appropriate remedy or whether there is a more narrowly tailored
solution as disciplining the coach may create an impression of district support for only
one position in the public debate of minority treatment.
2. Signs of the Time
A school clerk decides to wear a safety pin on her blouse every day to show
support for marginalized groups, including women, immigrants, people of color, Muslims
and the LGBT community. The district has received complaints that the pin is a form of
political speech and is receiving pressure to ban the clerk from wearing the pin. Can the
pin be banned?
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Here, wearing the pin is a form of symbolic speech. Using our framework, the
district must analyze whether the employee is speaking as a public or private citizen.
When the employee is at work, the speech is arguably considered speech of the public
agency employee. Particularly, in the school district setting, there is the concern that
students could be confused as to whether the “speech” is attributable to the employee or
the school district.
The next consideration is whether this is a matter of public or private concern.
Wearing a pin to demonstrate support of marginalized groups is likely speech on a matter
of public concern. In balancing the interests of the employee with those of the district,
there are arguments that could be made on both sides. From the clerk’s perspective, the
pin is a non-disruptive way to show support for marginalized groups in the same way that
wearing a pink ribbon shows support for the fight against breast cancer and wearing a
particular religious sign might identify one as a member of that religion. From the
district’s perspective (and at least one school district has taken this position),30 the safety
pin is disruptive because it may lead to questions as to its purpose and may be interpreted
as a statement against certain politicians or political parties. Where a court would land on
this issue is likely to depend on the extent to which the district is able to demonstrate a
substantial disruption of its business.
30 Hudnall, Shawnee Mission School District forbids teachers from wearing safety pins, THE PITCH (Nov.
21, 2016), available at http://www.pitch.com/news/blog/20844364/shawnee-mission-school-district-
forbids-teachers-from-wearing-safety-pins (as of January 6, 2017).
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3. My Class, My Academic Freedom
A science teacher, during a lesson on human anatomy, describes in detail the
process for aborting a human fetus and encourages students to “think twice before
making the decision to abort.” The school wants to terminate the teacher for the
commentary.
Given that the commentary was outside the scope of the lesson and potentially
disturbing to some students, it is unlikely that a court would find such discussion to be a
legitimate exercise of the teacher’s academic freedom. To determine whether the speech
is protected on First Amendment grounds, we examine whether the speech was made as a
public or private citizen on a matter of public concern. Here, the speech took place in the
employee’s classroom during a lesson. Thus, it is likely the employee would be
considered to be speaking as a public employee. The matter involved – abortion – may be
considered a matter of public concern, though in this scenario the teacher appears to be
speaking about it for his own purposes. Assuming the employee is speaking as an
employee on a matter of private concern, there is no need to balance the employee and
employer interests. However, if the balancing test were applied, because this commentary
was off-topic, graphic and has political overtones, the district could likely demonstrate
that its interest in maintaining an effective educational environment outweighs the
employee’s First Amendment and academic freedom interests.
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B. Employee Religious Expression
Considering Abercrombie and the other cases discussed above on religious
expression and accommodation, we now examine how that framework might apply to
hypothetical cases involving school employee religious accommodation.
1. Time for Prayer
An employee, who has worked for the school district for several years without
accommodation, notifies the district that based on his religious beliefs, he must leave his
sixth period class early once a week to engage in a prayer ritual. The school cannot find
anyone to cover the employee’s class for fifteen minutes while he leaves to pray. The
school wants to deny the accommodation.
Using the religious expression framework, the school district must first determine
if the practice or belief is a religious one. Here, the employee has indicated that the
weekly prayer is part of his religious beliefs. Courts are generally reluctant to question
the practices or beliefs of a religion. Next, the district must explore whether the belief is
sincerely held. Here, the fact that the employee has not requested accommodation
previously does not mean that the belief is not sincere. Rather, the employee may have
recently reconnected with his beliefs or converted. If the employer has information that
potentially contradicts or undermines the sincerity of the beliefs—the employee is spotted
doing something other than prayer during the designated time—the employer may be able
to question the sincerity of the belief. Finally, if the belief or practice is a religious one
and sincerely held, the school district must examine possible accommodations. Similar to
the interactive process under the Americans with Disabilities Act, the school district
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should engage the employee in a discussion about the practice and possible
accommodations that could be considered, such as moving the employee’s preparation
period to sixth period so that there are not students under his supervision at that time. In a
case like this, where there is likely to be at least one accommodation that would allow the
employee to exercise his beliefs, a refusal to accommodate is risky.
2. The Clerk with the Dragon Tattoo
The school district has a policy prohibiting employees from having tattoos visible
during the workday. The policy has been consistently applied. A school clerk recently
joined a religious sect that requires its members to have a small dragon tattooed on their
arm to demonstrate commitment to the sect. School clerk comes to work after getting the
dragon tattoo and is promptly disciplined for violating the school policy and told to cover
the tattoo while at work.
As with Abercrombie, the district has a neutral policy applicable to all employees
prohibiting any type of tattoo. Here, there are no facts to suggest that, after the employee
appeared with the tattoo, the district had an “inkling” that the tattoo was part of the
employee’s religious beliefs. Therefore, it is likely that the district would legitimately
initiate a disciplinary conversation with the employee. If, in that context, the employee
informed the district that the tattoo was required by her religious beliefs, the district and
the employee would, hopefully, be able to engage in an interactive discussion and to
determine an accommodation for the employee’s beliefs, such as wearing long sleeve
shirts, that does not undermine the district’s no-tattoo policy.
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VII. PRACTICAL POINTERS
When evaluating situations that implicate employee speech or religious
expression, it is important to consider the larger context. In advising clients, it is easy to
“over-lawyer” the situation and ignore the practical and political implications of the
advice provided. While there is almost always a legally correct or most advisable
response that can be provided, such a myopic view may lead clients into deeper trouble.
Take for example the hypothetical above of “The National Anthem and the Coach that
Won’t Stand.” In that case, the coach’s kneeling is done in support of the Black Lives
Matter movement and in solidarity with the rights of disenfranchised groups in America.
A school lawyer that examines that scenario and provides a “legal” answer, may
determine that the conduct is sufficiently disruptive as to warrant direction to the
employee to cease his actions. While that position may be seen by some as requiring
appropriate respect for our nation’s anthem, others may see it as a repudiation of the
Black Lives Matter movement and/or the rights of disenfranchised groups. In these
scenarios, it is important to work with and understand the client’s goal. If the client in
this scenario simply wants to ensure that there is harmony on the team and the views of
both sides are respected, examining the situation from a non-legal lens could offer that
solution. Approaching the scenario from an educational and conflict-management
perspective would allow discussion of the various sides of the issues, understanding of
the respective positions, and possibly development of a collaborative solution that avoids
the district being in the middle of a politically charged issue.
The tips below will help in approaching these scenarios from both a legal and
practical standpoint.
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A. Employee Speech
Regularly evaluate and update district policies to ensure that they are
consistent with the laws governing employee speech and do not unduly
interfere with such rights.
Consistently apply district policies related to employee speech and
document the district’s rationale when taking employment action
based on an employee’s speech or expressive conduct.
Prior to elections and other times when employee speech issues may
arise with frequency, remind administrators of the rules regarding
employee speech and expressive conduct to minimize potential
violations.
When examining employee speech issues, use the framework to
determine the context in which the speech is made and the type of
speech involved.
After developing the “legal” conclusion, consider the political and
practical realities and how that legal conclusion fits with the district’s
goals.
B. Employee Religion
Watch out for policies and or practices that may unknowingly infringe
on religious beliefs or practices of employees.
Consider accommodation requests on a case-by-case basis. Document
efforts to understand the employee’s request and the rationale for the
decision to accommodate or not. Ensure that accommodation requests
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are processed in a consistent manner and that accommodations are
evaluated and permitted or denied in a manner that is not arbitrary or
capricious.
Regularly evaluate district policies to ensure that policies covering
topics like dress codes, leaves of absence, and others do not actually or
potentially impact an employee’s ability to express his or her religious
beliefs and to receive accommodation for the exercise of those beliefs.
Train “front line” staff, like principals and human resource clerks who
may be the first to receive requests for accommodation, on employee
rights to religious expression and how to evaluate accommodations.
Ensure that school site staff coordinate their responses with the district
office.
Regularly educate students and staff on diversity and cultural
sensitivity.
Take complaints related to bullying or discrimination of employees
based on religion seriously, investigate such complaints and document
all findings.
VIII. CONCLUSION
Using the frameworks described above and applying these practical pointers will
allow for more careful analysis of all potential implications—legal, practical and
political—of regulating employee speech and or religious expression and help clients to
better achieve their goals.
