Jun 27, 2022
by Dan Cafaro
In the wake of the seismic U.S. Supreme Court ruling on Friday that overturned Roe v. Wade, the Court issued another decision Monday that has far-reaching implications for public employers.
In Kennedy v. Bremerton School District, the Court decided that a public high school football coach was within his rights to pray on the 50-yard line after each game, therefore holding that Joseph Kennedy wasn’t speaking as an employee when he prayed in public after games. The Court’s ruling on Kennedy—a case that IPMA-HR has been watching closely—supported the coach’s argument that his “private” prayers were protected by the First Amendment of the U.S. Constitution and therefore cannot be regulated.
“This case not only involves free speech rights of a public school football coach to engage in prayer at games, but involves issues of establishment of religion and free speech as it applies in the entire public employment and education sector,” said David Urban, senior counsel with Liebert Cassidy Whitmore. “The court’s opinion squarely addresses the current framework for speech law as it applies to talking about religion in or around the workplace.”
The court rejected the school district’s argument that allowing Kennedy’s prayers to continue would have violated the First Amendment’s establishment clause, which prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.
“In this case, the coach argued he did not violate the establishment clause because he did not interfere with the students or the game,” Urban said. “His point is that he’s expressing himself in a way that happens to be religious.”
Most employers are aware that Title VII of the Civil Rights Act of 1964 prohibits discrimination or harassment based on religious beliefs and may require accommodation of some religious expression in the workplace. However, be careful on taking a blanket approach to unique situations, says employment law attorney Susie Gibbons of Poyner Spruill LLP.
“Employers have to walk a careful line between not discriminating against employees based on religion and avoiding claims from employees who feel harassed because they may not share the same religious beliefs as other employees,” Gibbons said.
Urban explained that the Kennedy ruling could present some serious issues for employers.
“This ruling could present issues if employees feel more inclined to engage in proselytizing while at work because they feel that they are being protected by the law in expressing religious views in the workplace,” Urban said. “They could also claim that even if their religious views impact certain protected classifications, they have a right to engage in that kind of speech.”
The National Education Association, the nation's leading labor union for teachers, said that the majority opinion on Kennedy may open the door to coercive prayer in schools.
“The Constitution should protect public school students from being coerced into religious activity,” NEA president Becky Pringle said in a statement. “The Court's decision here does the opposite: It ignores the real-life pressure and coercion that students will feel when school officials stage public religious observances in class or at school events.”