Supreme Court expands religious expression for public employees in case of praying high school football coach
A high school football coach in Washington can return to the sidelines after the Supreme Court ruled this summer that he was wrongfully terminated for praying on the field following games.
The school district was concerned that by allowing the coach, Joseph Kennedy, to pray in a public place, in view of fans and players, it would be seen as an endorsement of religion by the school, a violation of the U.S. constitution’s establishment clause.
Before the case was appealed to the Supreme Court, Kennedy’s firing was upheld by the Ninth Circuit. Kennedy’s prayer sessions attracted media attention and crowds; so it was construed as a public act and therefore could be seen as the school district endorsing the coach’s beliefs. The school district also attempted to make accomodations for Kennedy, suggesting he could pray elsewhere in private, or on the field after players and fans had left the stadium.
But the Supreme Court ruled that Kennedy’s 50-yard line postgame prayers were private acts and protected expression and speech under the constitution.
In her dissent, Justice Sonia Sotomayor wrote that Gorsuch “misconstrued the facts” about whether Kennedy’s prayers were quiet and private, arguing that players felt pressure to join the coach in prayer.
In his opinion, Gorsuch said a 1971 decision that established a test in which judges considered whether a public employee's actions might appear to a reasonable observer to be an endorsement of religion had long since been disregarded by the Supreme Court. Sotomayor disagreed that the test was no longer used by the court, but in either view, precedent has been established.
Now, government and public employers should know that even if their employees are on the clock, their expression of religion is protected as long as they are not acting in their official public capacity and not coercing colleagues or subordinates (including students) to join.
Michael Moreland of Villanova law school told NPR that historical religious practices at public schools are now on firmer ground with the court’s ruling.
“In a lot of parts of the country, that includes coaches saying prayers,” he told NPR, “and it might include things like moments of silence at graduations.”
The Society for Human Resource Management points out that while the First Amendment doesn't apply to private businesses, employers with at least 15 workers must comply with Title VII of the Civil Rights Act of 1964, which prohibits discrimination against employees based on their religious beliefs.
Private employees can express their religious beliefs as long as it doesn’t place an undue hardship on the business, such as an effect on production or customers. Reasonable accommodations, such as switching days off for religious holidays, also are allowed.
"The First Amendment 'free speech' argument really only affects government employers, like a school district, but I think private and public employers will be watching this case to see how the Supreme Court views the accommodation efforts apparently made by the school district," Kelly Dobbs Bunting, an attorney with Greenberg Traurig in Philadelphia, told SHRM.
If you need help regarding religion in the workplace, Berman North’s employment lawyers can help you. Our skilled attorneys can help employers and employees understand their rights and options.