By Frank Ferreri, December 4, 2023
It’s that time of year again. Office workers across the world, including the Federal government, will soon bring merriment to their cubicles, quads, and corridors with lights, snowpersons, trees, and other indicia of “the season.”
While some Yuletide cheer is appropriate, welcome, and legally acceptable around the holidays, getting too zealous in workplace decorations can earn more than a lump of Title VII coal from the EEOC or a court.
In terms of what the law requires, whether harassment on the basis of religion is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a case of hostile environment harassment on the basis of religion, as detailed in Humphrey v. USPS, EEOC App. No. 01965238 (Oct. 16, 1998), a complainant must show all of the following:
- She was a member of a statutorily protected class (here, religion).
- She was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class.
- The harassment complained of was based on the statutorily protected class.
- The harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.
These EEOC and court decisions provide guidance to ensure the holidays are merry, bright, and nondiscriminatory.
Decision: Sturman v. FAA, EEOC App. No. 0120072361 (Oct. 31, 2007).
Facts: An air traffic control specialist claimed he was discriminated against on the basis of religion (Jewish) when a facility manager allowed her staff to hang Christmas decorations during business hours but did not hang Chanukah decorations. Staff also downloaded Christmas songs to her computer during business hours. The specialist submitted pictures of a workplace with a Christmas tree, a Christmas wreath, garland, lights, and other Christmas holiday decorations.
Ruling/analysis: The specialist’s case “failed” on the question of whether the atmosphere at work had the purpose or effect of unreasonably interfering with the work environment.
The EEOC noted the decorations — a Christmas tree, wreath, icicle lights, garland, and Santa Claus — were “predominantly secular” in nature. Although the tree “seemed to have had a number of ornaments which featured an angel,” the overall display was not religious, since “there was not a nativity scene, nor was there any other decoration which was religious in nature.”
The EEOC also noted that although Christmas trees are commonly associated with the Christian holiday of Christmas, “it has become a prevalent practice for many people and businesses to decorate evergreen trees, and feature lights and garland, as an expression of ‘the winter holiday spirit’ in a very secular sense.”
* * *
Decision: Garry H. v. FAA, EEOC App. No. 0120181570 (Sept. 24, 2019).
Facts: In one of six sections of a control room, an air traffic control specialist’s coworker put up a sign that read “Happy Hanukkah,” a silver and blue garland along with stars of David on the lights; a sign that read “Happy Kwanza” [sic]; and a sign that said, “Santa is coming in [x number] of days,” along with Christmas lights and wrapping paper.
The specialist claimed the agency discriminated against him on the basis of religion (Jewish) when all non-Christmas decorations were taken down while Christmas decorations throughout the facility stayed up.
Ruling/analysis: The specialist did not prove the agency subjected him to discrimination. The decorations the specialist complained about were secular decorations that were permitted throughout the Federal government and work environment.
“The record shows the holiday decorations … consisted of a sign that said, ‘Santa Clause [sic] is coming in [x number] of days,’ Christmas lights and wrapping paper,” the EEOC wrote. “According to the U.S. Supreme Court, such holiday decorations amount to secular symbols rather than an expression of a religion and displaying them in the federal workplace does not violate the establishment clause of the First Amendment.”
The EEOC also explained that Tile VII does not require a public or private employer to remove holiday decorations or add holiday decorations associated with other religions.
* * *
Decision: Ian S. v. IRS, EEOC App. No. 0120160622 (Apr. 27, 2018).
Facts: A senior individual taxpayer advisory specialist alleged that the agency discriminated against him on the basis of religion (Jehovah’s Witness) when his manager would not allow him to eat at his desk so that he could avoid exposure to holiday decorations in the break room, where a tablecloth and two poinsettias offended his religious beliefs.
Ruling/analysis: The holiday decorations at issue amounted to secular symbols rather than an expression of a religion, and displaying them in the federal workplace did not violate the establishment clause of the First Amendment.
* * *
Decision: Moore v. AAFES, EEOC App. No. 01933575 (Mar. 16, 1994).
Facts: A warehouse worker alleged he was discriminated against on the basis of religion (non-Christian) when Christmas music was played over the public address system where he worked.
Ruling/analysis: Even if the worker could prove that there was a deliberate intent on the part of the agency to harass him by playing Christmas music, it still would not rise to the level necessary to prove discrimination. This was because the harassing music complained of was played only on two days and for relatively brief periods of time.
* * *
Decision: Lurensky v. FERC, 167 F. Supp. 3d 1 (D.D.C. 2016).
Facts: The employee, who was a Jewish woman in her 60s, alleged the agency subjected her to disability discrimination when it denied the employee’s request to remove a Christmas garland off of a handrail in the lobby of the building where she worked.
Ruling/analysis: “Though a Christmas garland may have annoyed or inconvenienced the plaintiff, this allegation … fails to state a claim for discrimination or retaliation because it does not amount to an adverse employment action,” the court reasoned, since the garland did not affect the terms of employment and the decision to leave it in place was “not sufficiently adverse to chill a complainant’s exercise of her rights.”
* * *
Decision: Plotkin v. Shalala, 88 F. Supp. 2d 1 (D.D.C. 2000).
Facts: An HHS scientist, who was Jewish, complained about the display of “Christian Christmas decorations” in the workplace prior to being terminated.
Ruling/analysis: The employee’s concession that she was dismissed because of her alleged conduct and that her employer’s decision to terminate her employment was made before she voiced her concerns about the office Christmas decorations “effectively dispose[d] of” her claim of religious discrimination.
* * *
Decision: Spohn v. DVA, 2000 WL 1459981 (S.D.N.Y. 2000).
Facts: A VA employee, who was Catholic, alleged the agency violated his rights by displaying symbols of the Jewish religion, but not the Christian religion, in public areas of the hospital during two December holiday seasons. It appeared that “menorahs were displayed along with toy soldiers, Christmas trees, and Santa Clauses,” which the employee considered secular symbols, as well as “posters celebrating Kwanza” [sic] and “signs mentioning Muslim prayer services.”
The employee sought to have the court order a nativity be added to the VA’s decorations.
Ruling/analysis: Because the employee did not allege specific facts about the holiday displays, the claim was dismissed. However, along the way, the court noted that holiday displays including religious as well as secular symbols of the holiday season have been upheld but displays of religious symbols standing alone in locations associated with core governmental functions have been struck down.
The court also explained that while the agency could not be prohibited from displaying a creche in addition to a menorah in an “appropriate setting,” there was no authority for the proposition that such a pairing was constitutionally required.
“This Court cannot order the Center to include a creche in its holiday display,” the court pointed out. In addition, citing County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), the court highlighted that “Chanukah, like Christmas, is a cultural event as well as a religious holiday” in that “[j]ust as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and ‘as a cultural or national event, rather than as a specifically religious event.’”
What’s the takeaway from cases like these? A workplace that stays secular and celebrates the “American cultural” version of the holidays in its decorations will keep the season jolly and away from Title VII troubles. But for everyone’s sake, leave Mariah Carey in the earbuds. Info@FELTG.com
By 