Ninth Circuit Denies Religious Discrimination Claim

Volume 5, Issue 6
June 13, 2006

The Ninth Circuit Court of Appeals recently affirmed the denial of an employee's religious discrimination claim in Berry v. Department of Social Services, No. 04-15566 (9th Cir. May 1, 2006), a case which is instructive for both public and private employers.

The employee, Berry, was a Christian who sincerely believed that he must share his faith and pray with other Christians. He filed a lawsuit complaining that the Department of Social Services' restrictions upon him violated his First Amendment rights and Title VII. Specifically, the Department's policies prohibited employees in Berry's position from discussing religion with clients and other third parties. Berry was also prohibited from using his employer's conference room for monthly employee prayer meetings because the non-public conference room could be used only in association with Department business. Berry was not prohibited, however, from discussing religion with his colleagues. He was also permitted to hold his meetings in the break room during regular lunch hours or outside on Departmental grounds. Ultimately, however, Berry was disciplined after he failed to follow his employer's prohibition against displaying religious material in an area visible to participants in the Department's programs; Berry, whose position required meeting with clients in his cubicle, had, in December, placed a Bible on his desk and hung a sign that said "Happy Birthday Jesus" on the wall of his cubicle. He was directed to remove the Bible and the word "Jesus" from his sign.

As to the constitutional issue, the Ninth Circuit Court recognized that the public employer "must run the gauntlet of either being sued for not respecting an employee's rights under the Free Exercise and Free Speech clauses of the First Amendment or being sued for violating the Establishment Clause of the First Amendment by appearing to endorse its employee's religious expression." The Court determined that "avoiding an Establishment Clause violation may be a compelling state interest" and that religious discussions Berry had with clients posed a real danger of entangling the Department with religion. Accordingly, the Court found the Department's restrictions had appropriately balanced Berry's constitutional rights with the Department's important interests.

As to the Title VII failure to accommodate claim, which could apply to any employer, the Court determined that Berry had not shown a failure to accommodate his religious beliefs. The Court rejected Berry's complaint that the conference room was used for baby showers and birthdays and ruled that the Department's distinction between such business-related social functions, which furthered its administrative tasks, and religious meetings did not create an inference of discrimination.

This case provides important guidance to public employers and strengthens their legitimate ability to rely upon the duty to avoid violations of the Establishment Clause when addressing and balancing employees' rights. Berry also demonstrates for all employers the challenges associated with accommodating an employee's religious beliefs under Title VII. The employer here took a moderate and careful approach which appeared, in all respects, reasonable.

The full text of the opinion can be found at:

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