Religious Expression Toolkit for Educators

By: National Education Association

Published: November 4, 2024

Religious and ethnic bigotry has no place in our public schools. The reality, however, is that educators who follow minority faiths and educators who do not practice any religion can face significant obstacles in their workplaces. Discriminatory treatment, harassment, insensitivity, and exclusion occur all too frequently. We have seen a particularly concerning increase in anti-Muslim and Islamophobic bias, as well as antisemitism and Holocaust denial. And in many places, educators who choose not to follow a religion also face discrimination and pressure to join in expressions of faith at work.

A variety of legal protections are available to address these issues. When they know their rights and how to assert them, educators of all faiths (and no faith) can be their authentic selves, adhere to their beliefs, and be free from religious coercion at work. This toolkit provides educators with information on their rights and the available legal protections.

SOURCES OF LEGAL PROTECTIONS FOR RELIGIOUS BELIEF AND EXPRESSION

The U.S. Constitution

The First Amendment: Free Speech

The Free Speech Clause of the First Amendment generally protects the right to speak, write, advertise, or otherwise make your views (including religious views) known through words and other expressive activities. Usually, the government cannot penalize or censor these activities. But when the government—including a public school—acts as an employer, different rules apply. Courts use a few key questions to decide when a public school may limit educators’ speech and expression:

1. Is the speech or expression part of the educator’s job?

This question is the most important. While “the First Amendment’s protections extend to ‘teachers and students,’ neither of whom ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’” public school employees may not “deliver any message to anyone anytime they wish.” Generally, schools may control what their employees say as part of their official duties. In that context, the First Amendment does not protect an employee from discipline or regulation, even if the employee’s speech would be protected outside of work. Schools have less control over employees’ speech when it is made outside of their official duties, as private citizens.

2. Is the speech about something personal?

Educators have the most First Amendment protection for their speech when they are talking about issues of public interest, defined as issues “of political, social, and other concern to the community.” They have less protection when talking about something personal. Religious speech and expression is typically treated as speech and expression on a matter of public interest and therefore is entitled to greater First Amendment protection.

3. Does the school district have a good reason for preventing the speech?

In some cases, schools may limit educators’ speech because it is too disruptive to the learning environment or it is disrespectful to administrators, colleagues, or students. Courts balance the school’s interest in controlling speech against the educator’s interest in free speech to determine whether the speech may be restricted or penalized.

The First Amendment: Free Exercise of Religion

The Free Exercise Clause protects the right to engage in religious practice and expression free from undue government interference. In particular, free exercise allows “those who hold religious beliefs of all kinds to live out their faiths in daily life through” acts like prayer, fasting, wearing religious attire, and other observances. Public school employees may engage in private religious practice at work, like reciting a quiet prayer between classes, as long as they do not do so while carrying out official duties and do not pressure students to participate (or refrain from participating) in the practice.

The First Amendment: Establishment of Religion

The Establishment Clause prohibits governmental promotion or favoring of religion in public schools. As a result, public schools cannot coerce their employees into adopting or promoting any religious belief or practice, and public school employees cannot pressure students or co-workers into adopting any religious belief or practice.

Examples of Improper Establishments of Religion at School

Requiring employees to engage in or promote religious practice or education, like prayer or Bible readings
Displaying religious texts like the Ten Commandments
Pressuring students or teachers into engaging (or declining to engage) in religious practice or any other religious activity

The Fourteenth Amendment: Equal Protection of the Laws

The Equal Protection Clause of the Fourteenth Amendment prohibits the government from treating one religious group differently from another, including in public schools. This constitutional protection underscores that public schools cannot treat religious expression differently from any other expression and cannot favor expression of a particular faith over expressions of other faiths.

State Constitutions

State constitutional provisions may bolster protections for educator prayer and religious expression in the workplace by providing broader safeguards for free speech, explicitly prohibiting discrimination based on religion, or banning religion-based harassment. Washington State, for example, guarantees “[a]bsolute freedom of conscience” and promises that “no one shall be molested or disturbed in person or property on account of religion.”

While states may offer individuals greater protection in the free exercise of their religion, states may not allow religious coercion, including public school prayer or favoritism of a majority faith, that the First Amendment bans and must permit educator religious expression protected by the First Amendment. In other words, your state can only expand your rights of religious expression, nondiscrimination, and noncoercion. It cannot take away or reduce the scope of your First Amendment rights for your public-school employer to act neutrally towards your or any other faith and to privately practice your religion at work.

Federal Statutes

Title VII

Federal civil rights law also protects educators’ rights to be free from religious discrimination and to be able to express their faith at work. Title VII of the Civil Rights Act of 1964 is the main federal law that prohibits employment discrimination based on a number of protected characteristics, including religion. “Religion” under Title VII means all aspects of religious faith, observance, and practice, regardless of whether an employee’s religious beliefs and practices are common or nontraditional, are recognized by any organized religion, or acknowledge a deity. Nontheistic belief systems (including atheism and agnosticism) can be religious for Title VII purposes if they occupy a similar place in an employee’s life to that of God in the lives of traditionally religious persons.

Under Title VII, a public school cannot discriminate because of religion in hiring, promotion, discharge, compensation, or other terms and conditions of employment. Nor can a school use religion in any way that would or is likely to deprive any individual of employment opportunities or adversely affect the individual’s employment status. In addition, schools must “reasonably accommodate” an employee’s religious beliefs, practices, and observance unless doing so would result in “undue hardship on the conduct of” school business. Courts look at the particular facts of each case to decide whether a religious accommodation puts an undue hardship on the employer.

Title VI

Title VI of the Civil Rights Act of 1964 may also protect public school employees from certain forms of discrimination related to religion. Title VI prohibits schools that receive federal financial assistance—essentially all public schools—from discriminating on the basis of race, color, or national origin in their employment practices when a “primary objective” of the federal financial assistance is to provide employment. For example, if a school receives a federal grant awarded to hire reading specialists or certified ELL teachers, the school’s employment practices with respect to those positions would be covered by Title VI. A school’s employment practices are also subject to Title VI when they negatively affect the delivery of services to the ultimate beneficiaries of federal funding, usually students.

When it applies, Title VI’s ban on discrimination based on race, color, or national origin extends to discrimination against applicants or employees based on their actual or perceived shared ancestry or ethnic characteristics or their actual or perceived citizenship or residency in a country whose residents share a dominant religion or religious identity. For instance, Title VI prohibits discrimination based on an applicant or employee’s Israeli heritage (where Judaism is the predominant religion), Indian heritage (where Hinduism is the predominant religion), or Pakistani heritage (where Islam is the predominant religion). Title VI concerns also arise when, for example, Jewish employees are subjected to antisemitic threats, slurs, or assaults; Muslim employees are targeted for wearing a hijab; or Middle Eastern and Sikh employees are taunted or called terrorists.

State Statutes

In addition to these federal civil rights statutes, three types of state laws may expand educators’ rights of religious speech and expression at work.

State Antidiscrimination Laws

First, 47 states and the District of Columbia have their own antidiscrimination laws that, like Title VII, forbid employers from engaging in religious discrimination These laws often offer stronger protections than Title VII. For example, a state antidiscrimination law may apply to employers who are not covered by Title VII, define the protected trait of religion more broadly, or provide remedies that are not available under Title VII. Contact your union for more information about whether your state’s antidiscrimination laws apply to public school employees and the specific rights and remedies the laws provide.

State Religious Freedom Restoration Acts

Second, 28 states and the District of Columbia have laws known as Religious Freedom Restoration Acts, or RFRAs. State RFRAs require state and local government entities, including public schools, to recognize exemptions from generally applicable laws and rules if they substantially burden an individual’s free exercise of religion. These laws frequently create protections for religious practice and expression above the First Amendment’s floor.

State Tenure and Public-Sector Bargaining Laws

Third, state tenure and public-sector collective bargaining laws may safeguard educators against adverse employment actions based on religion.

Tenure Laws: 44 states have tenure laws, which prevent a school from dismissing a tenured educator without good cause, like incompetency, insubordination, unprofessional conduct, or reductions in the workforce due to economic or enrollment conditions. Dismissal on grounds not listed in the tenure statute typically is not allowed. Because an employee’s religious belief, practice, or observance is not a “good cause” for dismissal, tenure laws protect educators from being terminated based on their religion. Tenure is generally limited to teachers and other licensed educational professionals who have worked in the school district for a certain number of years and usually does not transfer to a new district if a teacher changes jobs. Once a teacher is tenured, they are entitled to “due process,” meaning that if they are dismissed, they are entitled to know why and have the right to an opportunity to challenge a dismissal that the teacher believes is unfounded or unlawful, for example, because it is based on religious discrimination.

Collective Bargaining Laws: 35 states and the District of Columbia have public-sector bargaining laws that guarantee K-12 teachers the rights to organize and collectively bargain. An additional 9 states allow local jurisdictions like school districts to grant recognition and bargaining rights if they so choose. In districts where educators and their unions can collectively bargain, they can seek additional protections against workplace religious coercion, discrimination, and harassment during negotiations.

School District Policies and Collective Bargaining Agreements

Finally, many school district policies and provisions in collective bargaining agreements address discrimination, including discrimination on the basis of religion, and employee speech and expression at work. School policies often contain guidance and outline procedures to deal with claims of discrimination through your district’s human resources office. They may also include employee dress codes or codes of conduct that set rules for when and how you can express or practice your faith at work. Contact school officials or your union to access your school’s policies.

The collective bargaining agreement between your union and your school district may also ensure nondiscrimination in hiring, evaluation, termination, promotion, and assignment decisions and/or guarantee union members a safe and harassment-free workplace. Violations of these provisions are ordinarily subject to the grievance process outlined in the collective bargaining agreement. Contact your union for more information about the specific protections in your collective bargaining agreement.

HOW THESE PROTECTIONS WORK

Generally, educators may not engage in religious speech, expression, or practice while they are carrying out their official duties in a public school or at a school-related function. Educators may, however, engage in private religious speech, expression, or practice at work when they are not on duty, as long as they do not disrupt the learning environment and do not coerce or pressure students into participating (or not participating) in religious activities. Public school employees also have the right to a workplace free of religious discrimination or harassment by school officials, colleagues, and students.

Protection from Discrimination in Employment Decisions and Working Conditions

Federal and state antidiscrimination laws prohibit public schools from discriminating against employees based on their religion. Unlawful religious discrimination takes place when an employer treats an individual unfavorably or differently because of his or her religious beliefs or lack thereof. Federal and state laws protect not only people who follow traditional, organized religious like Buddhism, Christianity, Hinduism, Islam, and Judaism, but also people who have sincerely held religious, ethical, or moral beliefs outside of these established creeds. Religious discrimination can also involve treating someone differently because that person is married to or associated with an individual of a particular religion or because of their connection with a religious organization or group.

Not all discrimination is overt. Discrimination can take the form of seemingly innocent banter or jokes or the use of stereotypes about a religion or its adherents. It does not matter if a person did not intend to be offensive, “everyone laughed,” or the comments were not directed to the person who was offended.

Religious discrimination often manifests in an adverse employment action, which is something an employer does that hurts an employee and is done because of the employee’s religious beliefs, practices, or observances.

Examples of Adverse Employment Actions

Deciding not to hire a qualified job applicant
Terminating an employee without cause
Not selecting a qualified employee for a promotion or assignment
Disciplining an employee without a basis for doing so
Harassing an employee
Denying an employee’s request for a reasonable accommodation

When these or similar actions are motivated by an employee’s religious belief, expression, or practice (or lack thereof), they discriminate on the basis of religion.

Adverse employment actions are not just formal decisions like hiring, firing, and discipline; they also involve other decisions that affect an employee’s working conditions. For example, a principal’s decision to assign a Hindu teacher to a classroom without air conditioning while giving non-Hindu teachers air-conditioned spaces could be an adverse employment action. Discriminatory adverse employment actions also sometimes occur when an employer favors members of one faith over others. For example, a supervisor who denies a qualified non-Jewish employee a promotion because the supervisor wishes to give a preference based on religion to a fellow Jewish employee is discriminating on the basis of religion.

Examples of Unlawful Religious Discrimination at Work

A school allows Christian teachers to use paid time off to observe Good Friday but does not allow Jewish teachers to use paid time off to observe Rosh Hashanah.
A principal gives a Muslim employee a less favorable performance review than non-Muslim employees based on the principal’s disdain for perceived stereotypical claims about Muslims.
A school investigates allegations of student harassment against Catholic teachers while ignoring similar allegations by Sikh teachers.
A school assigns all its Buddhist teachers to the same grade level while allowing non-Buddhist teachers to express preferences for their grade-level assignment.
A school terminates an employee based on his disclosure to the employer that he has recently converted to the Bahá’í Faith.

Protection from Religious Harassment

All public school employees have the right to a workplace free from harassment on the basis of their religious background and beliefs, including harassment for refusing to participate in religious expression, for adhering to a different faith than most students and teachers at their school, or for holding a belief that a colleague, student, or parent/guardian disagrees with. Religious harassment can rise to the level of discrimination prohibited by federal civil rights law if it takes the form of outright coercion or is so frequent or severe that it creates a hostile or offensive work environment.

Outright Coercion/Quid Pro Quo Harassment

Coercion or quid pro quo harassment takes place when an employee is pressured by a supervisor, administrator, manager, or other representative of the employer with authority to take adverse action against the employee to abandon, change, or adopt a religious practice as a condition of employment. The pressure can be explicit or implicit, and can impose religious practice as a condition of either receiving a job benefit or privilege or avoiding an adverse employment action.

Coerced religious participation or non-participation is unlawful only when it is intended to make the employee conform to or abandon a religious belief or practice. By contrast, asking an employee to participate in a workplace activity that conflicts with the employee’s religious beliefs is not illegal if the employee does not request to be excused or the employer does not refuse a reasonable request to be excused.

Hostile Work Environment

Hostile work environment harassment occurs when unwelcome comments or conduct based on religion unreasonably interfere with an employee’s work performance or create an intimidating, hostile, or offensive work environment. Anyone in the workplace—whether a supervisor, administrator, co-worker, or non-employee (including contractors, vendors, students, families, parents/guardians, or guests)—can commit this type of religious harassment.

To create an unlawful hostile work environment, conduct must be severe and pervasive and must unreasonably interfere with the targeted employee’s job performance. Numerous forms of conduct can contribute to a hostile work environment, including:

Ethnic or religious slurs
Attacking or making negative comments based on a person’s religion or alleged traits associated with that religion
Attacking or making negative comments about how a person looks or dresses, if linked to religion or ethnicity associated with a particular religion
Jokes or remarks based on a person’s religion
Graffiti, cartoons, or posters targeting members of a certain religion

1. When Is Harassment Based on Religion?

Harassment may be unlawful if it is based on the employee’s religion. Harassment with religious content is always based on religion. Even if religion is not explicitly mentioned, harassment can still be based on religion if an employee is singled out for negative treatment because of their religion (or lack of religion).

2. When Is Harassing Conduct Unwelcome?

The harassing conduct must also be “unwelcome.” Conduct is “unwelcome” when it is “uninvited and offensive or unwanted” from the standpoint of the harassed employee. The employee does not have to voice their objection to every instance of harassing conduct, or confront the alleged harasser, for the conduct to be unwelcome. In situations where, for example, an employee is visibly upset by a colleague’s repeated mocking use of derogatory terms or comments about their religious beliefs or observance, it may be obvious that the conduct is unwelcome. Complaints about the harassment to friends, family, or co-workers may also show that the conduct is unwelcome.

3. When Is Harassment Severe and Pervasive?

Except in the case of coercion or quid pro quo harassment, religious harassment is illegal only when it is “sufficiently severe and pervasive” to create a hostile or abusive work environment. The environment must be both objectively and subjectively hostile—that is, common sense and context must show that an ordinary person would understand the work environment to be abusive and the targeted employee must actually understand the conduct to be hostile, abusive, or offensive enough to impact their work environment. When determining whether conduct is sufficiently severe or pervasive to constitute hostile work environment harassment, courts and agencies look at:

The frequency of the conduct;
The severity of the conduct;
Whether the conduct is physically threatening or humiliating or verbal in nature; and
Whether the conduct unreasonably interferes with an employee’s work performance.

No single factor is required. One extremely severe incident may create a hostile work environment, especially if the employee is physically threatened, as may chronic, unaddressed instances of less severity if they create a hostile work environment. Generally, insensitive comments about an employee’s religious belief, practice, or expression, standing alone, are not considered “severe and pervasive.”

Even conduct that is not intended to be insulting or abusive can create a hostile work environment. For example, persistently repeating atheist views to a religious employee who has asked that it stop can create a hostile work environment, as can proselytizing to an atheist employee or an employee with different beliefs.

When Is a School Liable for Harassment?

A school is always liable for religious harassment by a supervisor with authority over the harassed employee if the harassment results in an adverse employment action. If there is not an adverse employment action, the school is liable for harassment by a supervisor if:

The school did not exercise reasonable care to prevent and promptly correct the harassing conduct and
The employee took advantage of preventive or corrective opportunities provided by the employer or took other reasonable steps to avoid the harassment, but the harassment still continued.

A school is liable for religious harassment by an employee’s colleagues and others in the school, like students, family members, or contractors, when the school

Unreasonably failed to prevent the harassment or
Knew or should have known about the harassment and failed to take prompt and appropriate corrective action.

How to Report Harassment

Workplace religious harassment by a supervisor, colleague, or other person should be reported to a school administrator or principal or your school district’s human resources office. If possible, it is important to document what happened with photos, video, audio, and/or written statements about the harassment. Schools may not retaliate against anyone who reports or is targeted by religious harassment.

If the harassment is not resolved within the workplace, outside help may be needed. Employees should consider seeking legal counsel to remedy the harassment and prevent future harassment at work or filing a complaint with the federal and state agencies charged with protecting your civil rights at work, like the Equal Employment Opportunity Commission. The names of some agencies and nonprofit advocacy groups that may be able to help are below.

Examples of Unlawful Religious Harassment at Work

A Jewish teacher’s classroom and personal possessions are vandalized by students who leave images of swastikas behind. The teacher reports the vandalism to the school, which is alleged to not have taken effective action to address these reports.
A school administrator routinely refers to Sikh employees in the district as “turban” and other names in conversation with the employees and others. The district does not take effective actions to document and address these incidents.
A teacher was raised as an evangelical Christian but no longer attends church. His principal is a very devout evangelical Christian who tries to persuade the teacher not to abandon Christianity and to follow the Bible. The principal tells the teacher that members of the school committee attend his church and if the teacher wants to be considered for opportunities within the district, he should attend as well. The teacher does not do so and is later denied a position coaching a sports team at the school, even though he is qualified.
A Mormon teacher shares a classroom with a teacher who is a Christian Scientist. The Mormon teacher makes derogatory comments about Christian Science and regularly leaves religious pamphlets on the Christian Scientist teacher’s desk, while attempting to engage in conversation about religion. The Christian Scientist teacher complains to the school principal, who says that the Mormon teacher is a nice person who is trying to be helpful and does not do anything to stop the harassment.

Accommodation for Religious Practices

Public schools must provide reasonable accommodations for their employees’ religious practice. A reasonable religious accommodation is an adjustment to the work environment that will allow the employee to comply with their religious beliefs without imposing an undue hardship on the employer’s business—in the case of public schools, the provision of educational services to students.

Examples of Common Religious Accommodations

Prayer Time: Employees may request time to pray during the work day. For example, Muslim teachers, whose faith encourages them to pray five times a day at prescribed times and to engage in congregational prayer midday on Fridays, may ask for time and space to carry out this obligation. Other employees may ask to use a quiet area for personal prayer during breaks.
Dress and Grooming Policies: Employees may request to wear religious garb, like yarmulkes, hijabs, kufis, turbans, or headscarves, wear certain religious hairstyles, like Rastafarian dreadlocks or Sikh uncut hair and beard, or dress in a manner required by their sincere religious belief, for example, not wearing pants or a miniskirt. Absent undue hardship to their employer, employees cannot be forced to observe dress or grooming rules they consider immodest or inappropriate on religious grounds.
Fasting and Religious Holidays: Employees may request flexible scheduling, work breaks, or other means by which they can adjust their schedule or make up time lost due to religious observances.

“Undue Hardship”

Under Title VII, an employer must reasonably accommodate an employee’s religious observance and practice unless the employer can show that accommodation would inflict “undue hardship on the conduct of the employer’s business.” An “undue hardship” exists when granting a religious accommodation would result in “substantial increased costs” in the context of the employer’s business as a whole. This is a difficult showing for an employer to make, and usually will be met only where an accommodation would require an employer to spend significant amounts of money compared to their overall expenditures. Impacts of accommodations on co-workers (for example, being asked to cover a shift or break for an employee who is granted a religious accommodation) do not show undue hardship unless they are substantial and cannot be attributed to religious bias or hostility. In the context of requests for accommodations by public school employees, courts may consider the effect of accommodations on the learning environment; students’ physical, social, and emotional health and safety; and educational achievement, among other factors.

Requesting Accommodations and the “Interactive Process”

School districts usually have policies on requesting religious accommodations which you should review and follow. A typical process begins with a written request for an accommodation by the employee to the designated school official, often a principal or other administrator. The employee must provide enough information to make the school aware of the need for an accommodation due to a conflict between religion and work.

As long as the request is reasonable and does not substantially interfere with the school’s function, the school should provide the accommodation. However, the school is only required to provide a reasonable accommodation, not the employee’s preferred accommodation. If the requested accommodation is not feasible or the school would like to consider alternatives, the school must engage in what is called an “interactive process” to determine with the employee whether alternative accommodations would meet the employee’s religious needs. During this process, the school may request additional information that it reasonably needs to talk about the request and assess the options for accommodation. The employee should cooperate in the process and share the information needed to facilitate an accommodation. At the close of the interactive process, the school and the employee should have settled on a mutually acceptable accommodation plan. If the school denies the accommodation request, you may be able to seek outside help from your union or other advocates.

Speech About Religion Inside and Outside the Workplace

Educators have an unlimited right to engage in speech about religion when they are not at work or school-sponsored events. While at work or work-related functions, educators retain their right to religious speech and expression but may be subjected to reasonable limitations that uphold order in the learning environment or protect the rights of others, including students. The general rule is that schools may not discriminate against private religious expression by their employees and must treat all faiths neutrally rather than preferring one or more religions over others, or religion in general over the absence of religion.

Speech While On Duty

When they are acting in their official capacity as public school employees, teachers, coaches, and other educators speak on behalf of the government. As a result, they may not lead students in prayer, devotional readings, or other religious activities. Nor may they engage in personal prayer or other religious practice or promote or discourage religious views or practice. School districts’ reasonable rules and regulations that seek to avoid unconstitutional religious speech by educators while at work are permissible, as long as they do not favor speech or expression related to certain faiths over speech or expression of other religions.

While teaching, educators may not provide religious instruction, but they may teach about various religious traditions and promote religious liberty and tolerance. Their curricula may cover the history of religion, comparative religion, religious texts as literature, and the role of religion in the history of the United States and the world. Teachers may also discuss religious influences on philosophy and culture. But educators should avoid any discussion of religion that promotes or favors religion generally, a particular religion, or a religious belief. If an educator gives an assignment in which students may choose a subject or are asked to express an opinion and a student selects a religious topic or perspective, the educator must judge the work on the basis of ordinary academic standards and may not reward or penalize the religious views expressed by the student.

Speech During Personal Time at Work or Outside of the Workplace

Not everything that a public school employee says or does at work is government speech. When they are off-duty (for example, on a lunch break or grading papers after school hours), educators can engage in genuinely private religious speech, expression, and practice as long as their personal religious expression or observance does not result in the coercion of any students. Schools can prohibit or restrict this activity only to the extent that they prohibit or restrict other educator speech. In contexts where a school permits its employees to engage in personal speech, it may not ban employees’ religious speech, practice, or expression simply because it is religious or because observers, including students, might misunderstand the school as endorsing the activity. So, if an educator could call their spouse or check personal emails in the period between classes, the school must also permit the educator to engage in a quiet, private prayer during that time. But a school may take reasonable measures to ensure that educators do not violate students’ rights of religious conscience by pressuring or encouraging students to join or refrain from joining the private religious speech of educators or other students.

In addition, a public school, like any government employer, may reasonably restrict private speech and expression in the workplace, including religious speech, if it may interfere with working relationships, undermine an employee’s performance of their duties, or otherwise disrupt the learning environment. Under this rule, a school likely could not prevent a Muslim teacher from wearing a hijab or other head covering, or a Hindu teacher from wearing a bindi (religious forehead marking), while teaching because these private religious observances do not have any coercive influence on students and have a negligible impact on teachers’ job performance and the school environment on a whole. But the school could prevent a Muslim teacher from carrying out her obligation to pray five times a day in a crowded hallway while students are changing classes, because the time and place of this religious observance disrupts the school environment.

Public school employees’ religious speech, expression, and practice outside of the workplace is almost never attributable to the government. Consequently, school districts generally cannot regulate this private speech and activity at all.

Avoiding Coercion and Respecting Students’ Rights of Religious Conscience

Under the First Amendment, students have rights of religious conscience, speech, expression, and exercise while at a public school, and public schools have an obligation not to endorse or favor religion in general or a particular religion. As a result, even when educators may engage in private religious speech, expression, or practice at work, they may not do so a way that amounts to an attempt to persuade or coerce students to participate in prayer or other religious activities or to refrain from doing so. For example, while the Supreme Court recently upheld the right of a high school football coach to pray at the 50-yard line after games, even though members of the team frequently prayed with him, it emphasized that the coach did not coerce, require, or ask any students to pray, nor seek to persuade them to participate in his private prayer. The Court suggested that taking these steps would cross the line into unlawful coercion, and would not be allowed. Similarly, the Court has found that public schools cannot invite members of the clergy to deliver prayers at graduation ceremonies because the prayer would create coercive pressure that requires students to choose between participating in the prayer or openly opposing it during their graduation.

WHERE TO GO FOR HELP

Additional resources are available to help you learn about your religious rights at work or find assistance if you believe that your religious rights have been violated.

Your Union

If you are an NEA member and feel that you have been discriminated against based on religion or unfairly denied an accommodation, you should contact your local affiliate immediately. They will be able to explain your rights, including those specific to your school district or state. They will also share helpful resources and may be able to help you take your concerns to your employer or file complaints at the local, state, or federal level.

School District and State Resources

Every school district has a human resources office that can provide information on the district’s policies and procedures. Make sure to review their accommodation and complaint procedures before submitting a request for an accommodation or filing a formal complaint. Keep in mind that your school and district’s human resources professionals serve your employer, not you. By filing a complaint, you will put them on notice and begin to establish a record of mistreatment. But you will also open yourself up to their questions. Make sure that you are prepared and remember that anything you share may become part of your employment record.

Each state also has a Fair Employment Practices Agency (FEPA) or equal employment opportunity office responsible for overseeing compliance with state and federal law and addressing employment discrimination matters. Check your state’s FEPA or equal employment opportunity office for informational resources, instructions on how to file a state-level complaint, and contact information for their support staff. Your state may also have a human rights or civil rights commission responsible for investigating and reporting discrimination. Review their resources and consider whether filing a complaint with them is appropriate as well.

Equal Employment Opportunity Commission

You may also file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC), either by itself or at the same time as a state complaint alleging violations of federal law. You are legally protected from being punished by your employer for participating in an EEOC complaint process. EEOC charges may be filed in person, by mail, or by telephone by contacting the nearest EEOC office. If there is no EEOC office in your area, you can call toll-free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information. Additional information on how to file a charge of discrimination with the EEOC can be found here.

Non-Profit Advocacy Organizations

If you would like to learn more about your religious rights at work or seek legal advice, the following nonprofit advocacy groups may be able to provide information and guidance:

Anti-Defamation League 605 Third Avenue New York, NY 10158 (212) 885-7700 www.adl.org/contact	American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 https://www.aclu.org/affiliates
Council on American-Islamic Relations Civil Rights Department 453 New Jersey Avenue, SE Washington, DC 20003 (202) 742-6420 [email protected] https://www.cair.com/report/	Hindu American Foundation 910 17th Street NW, Suite 315 Washington, DC 20006 (202) 223-8222 [email protected] https://www.hinduamerican.org/contact-us/
The Lawfare Project 633 Third Avenue, 21st Floor New York, NY 10017 (212) 339-6995 https://www.thelawfareproject.org/ get-legal-help	Muslim Advocates P.O. Box 34440 Washington, DC 20043 (202) 897-2622 [email protected] https://muslimadvocates.org/action/report-discrimination/
Religious Freedom Clinic Harvard Law School 6 Everett Street Cambridge, MA 02138 (617) 496-4383 [email protected] https://www.hlsreligiousfreedom.org/contact	Sikh Coalition 165 Broadway, 23rd Floor New York, NY 10006 (212) 655-3095 https://www.sikhcoalition.org/legal-help/

1 See Council on American-Islamic Relations, Fatal: The Resurgence of Anti-Muslim Hate (2024); Anti-Defamation League, Press Release, U.S. Antisemitic Incidents Skyrocketed 360% in Aftermath of Attack in Israel, According to Latest ADL Data (Jan. 17, 2024).
2 Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527 (2022); see Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
3 Kennedy, 597 U.S. at 527 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) and citing Lane v. Franks, 573 U.S. 228, 231 (2014)).
4 Kennedy, 597 U.S. at 527; see Garcetti, 547 U.S. at 421; Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011).
5 Connick v. Myers, 461 U.S. 138, 146 (1983).
6 See Kennedy, 597 U.S. at 528.
7 See, e.g., Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d Cir. 2015); Buchanan v. Alexander, 919 F.3d 847, 952–54 (5th Cir. 2019).
8 See Kennedy, 597 U.S. at 528.
9 Id. at 524 (citing Employment Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 877 (1990)).
10 Id. at 524–26.
11 U.S. Const. amend. I.
12 Town of Greece v. Galloway, 572 U.S. 565, 581 (2014) (citing Engel v. Vitale, 370 U.S. 421, 430 (1962)); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223–25 (1963) (requirement that the school day begin with reading of Bible verses and recitation of the Lord’s Prayer violated the Establishment Clause).
13 Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (statute that required posting of Ten Commandments in public school classrooms unconstitutional); Sara Cline & Kevin McGill, Lawsuit Challenges New Louisiana Law Requiring Classrooms to Display the Ten Commandments, AP News (June 24, 2024).
14 See Kennedy, 597 U.S. at 540; Lee v. Weisman, 505 U.S. 577, 592–94 (1992) (inviting rabbi to deliver prayer at public school graduation violated Establishment Clause because the invitation and prayer were “attributable to the State” and applied “subtle coercive pressure” to objecting students and teachers).
15 U.S. Const. amend. XIV, § 1.
16 Wash. Const. art. I, § 11; see also, e.g., Conn. Const. art. I, § 20 (“No person shall be denied equal protection of the law nor be subject to segregation or discrimination in the enjoyment of his or her civil or political rights because of religion.”); Nev. Const. art. I, § 4 (“The free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State.”).
17 See Locke v. Davey, 540 U.S. 712, 719–22 (2004).
18 42 U.S.C. § 2000e et seq.
19 42 U.S.C. § 2000e(j); see, e.g., Cooper v. Gen. Dynamics, Convair Aerospace Div., 533 F.2d 163, 168 (5th Cir. 1976) (stating “all forms and aspects of religion, however eccentric, are protected”).
20 Fallon v. Mercy Cath. Med. Ctr., 877 F.3d 487, 491 (3d Cir. 2017).
21 42 U.S.C. § 2000e-2(a)(1).
22 42 U.S.C. § 2000e-2(a)(2).
23 42 U.S.C. § 2000e(j); see Groff v. DeJoy, 600 U.S. 447, 468 (2023) (reevaluating undue hardship standard in case involving postal worker’s request not to work on Sundays in order to observe the Sabbath).
24 See Groff, 600 U.S. at 468.
25 42 U.S.C. § 2000d et seq.
26 See U.S. Dep’t of Educ., Off. for Civil Rights, Nondiscrimination in Employment Practices in Education (1991).
27 See U.S. Dep’t of Justice, Title VI Legal Manual at Section X; Rogers v. Bd. of Educ., 859 F. Supp. 2d 742, 744 (D. Md. 2012); Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 91–92 (D.D.C. 2010); Reynolds v. Sch. Dist. No. 1, Denver, 69 F.3d 1523, 1531 (10th Cir. 1995).
28 See U.S. Dep’t of Justice, Title VI Legal Manual at < a href="https://www.justice.gov/crt/fcs/T6Manual10#1">Section X; United States v. Jefferson Cnty. Bd. of Educ., 372 F.2d 836, 883 (5th Cir. 1966) (“faculty integration is essential to student desegregation”).
29 See Catherine E. Lhamon, Ass’t Sec’y of Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Title VI and Shared Ancestry or Ethnic Characteristics Discrimination 2 (May 7, 2024); Catherine E. Lhamon, Ass’t Sec’y for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Addressing Discrimination Against Muslim, Arab, Sikh, South Asian, Hindu, and Palestinian Students 1–2 (Mar. 14, 2024); Catherine E. Lhamon, Ass’t Sec’y for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Addressing Discrimination Against Jewish Students 1–2 (May 25, 2023); Thomas E. Perez, Ass’t Atty. Gen., U.S. Dep’t of Just., Letter to Russlyn Ali, Ass’t Sec’y for Civil Rights, U.S. Dep’t of Educ., Title VI and Coverage of Religiously Identifiable Groups 1–2 (Sept. 8, 2010).
30 Iris Hentze & Rebecca Tyus, Discrimination in the Workplace, Nat’l Conference of State Legislatures (Aug. 12, 2021). State antidiscrimination and employment laws in Alabama and Georgia do not explicitly ban discrimination on the basis of religion, while Mississippi does not have a generally applicable equal employment opportunity law. Id.
31 Cole Durham & Robert Smith, 1 Religious Organizations and the Law § 3:27 (2d ed. 2023) (listing states and citing statutes); see S.F. 2095, 90th Gen. Assembly (Iowa 2024) (enacted Apr. 2024); L.B. 43, 108th Leg. (Neb. 2024) (enacted Mar. 2024); S.B. 150, 2024 Leg., Gen. Sess. (Utah 2024) (enacted Mar. 2024); N.D. Code § 14-02.4-08.1; W. Va. Code § 35-1A-1.
32 See, e.g., Ariz. Rev. Stat. § 41-1493.01(A) (“Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.”); R.I. Gen. Laws § 42-80.1-3(a) (“[A] governmental authority may not restrict a person’s free exercise of religion.”); Tenn. Code Ann. § 4-1-407(b) (“[N]o government entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability.”); Tex. Civ. Prac. & Rem. Code § 110.003 (prohibiting state and local government entities from “substantially” burdening a person’s free exercise of religion unless the burden is “the least restrictive means of furthering” a “compelling governmental interest”).
33 Nat’l Educ. Ass’n, Teacher Tenure & Due Process Protections for Educators (Apr. 4, 2023). Florida, North Carolina, and Wisconsin have effectively eliminated tenure for most teachers, while Arkansas, Kansas, North Dakota and the District of Columbia do not offer any tenure protection. Id. Four of the 44 states with tenure laws (Indiana, Tennessee, Colorado, and Georgia) have reduced protections by creating exceptions to tenure or providing for performance-based reversion to probationary status for tenured teachers. Id.
34 Nat’l Educ. Ass’n, The Benefits of Collective Bargaining in Public Education 2–3 (2022).
35 Id.
36 EEOC, Guidance Doc. No. 2021-3, Compliance Manual on Religious Discrimination at Section 12-I (2021) (“EEOC Guidance”).
37 EEOC Guidance, supra, at Section 12-I.
38 EEOC Guidance, supra, at Section 12-I.
39 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); see EEOC Guidance, supra, at Section 12-III.B.1.
40 See, e.g., Scott v. Montgomery Cnty. Sch. Bd., 963 F. Supp. 2d 544, 553–57 (W.D. Va. 2013) (reasonable jury could find quid pro quo harassment in negative performance evaluations and nonrenewal that resulted after plaintiff, a public school library assistant, rejected her supervisor’s religious overtures, including declining requests to join Bible study group, attend religious retreat, and begin each work day with prayer); Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997) (police department employee established that she was discharged on the basis of religion after supervisor, among other things, repeatedly called her “evil” and stated that she had to share his Christian beliefs to be a good employee); Rice v. City of Kendallville, No. 1:07-CV-180-TS, 2009 WL 857463, at *8–9 (N.D. Ind. Mar. 31, 2009) (colorable claim of religious harassment where police department employee was terminated but her coworker, who engaged in the same misconduct but attended their supervisor’s church, was not).
41 See EEOC Guidance, supra, at Section 12-III.B.1.
42 See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); EEOC Guidance, supra, at Section 12-III.B.2.
43 EEOC Guidance, supra, at Section 12-III.B.
44 See, e.g., Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 388–90 (2d Cir. 2020) (derogatory comments to Coptic Christian employee about his Egyptian heritage and Christian faith contributed to hostile work environment).
45 See, e.g., EEOC v. WC&M Enters., Inc., 496 F.3d 393, 398–401 (5th Cir. 2007) (reasonable fact finder could conclude that harassment initiated after September 11, 2001, against employee who was born in India and was a practicing Muslim was severe and pervasive and motivated by national origin and religion).
46 See, e.g., EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315–19 (4th Cir. 2008) (reasonable fact finder could conclude that Muslim employee who wore a kufi, or ceremonial knife, as part of his religious observance was subjected to hostile work environment when co-workers repeatedly called him “Taliban” and “towel head,” suggested he was a terrorist, made fun of his appearance, and made comments associating all Muslims with senseless violence).
47 See, e.g., Turner v. Barr, 811 F. Supp. 1, 3–4 (D.D.C. 1993) (hostile work environment was created where Jewish employee was subjected to a “joke” about the Holocaust, denied opportunity to work overtime, and ridiculed as a “turnkey”).
48 See, e.g., EEOC v. T-N-T Carports, Inc., No. 1:09-CV-27, 2011 WL 1769352, at *4 (M.D.N.C. May 9, 2011) (finding evidence of religious harassment where co-workers, among other things, drew devil horns, a devil tail, and a pitchfork on Christmas photo of devoutly Christian employee).
49 See EEOC Guidance, supra, at Section 12-III.B.2; Vinson, 477 U.S. at 67; Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443 (7th Cir. 2011); Rasmy, 952 F.3d at 387–88 & n.34.
50 Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 784 (1st Cir. 1990); see Mahler v. First Dakota Title Ltd. P’ship, 931 F.3d 799, 806 (8th Cir. 2019) (“Harassing conduct is considered unwelcome if it was uninvited and offensive.”).
51 See EEOC Guidance, supra, at Section 12-III.B.2.
52 See EEOC Guidance, supra, at Section 12-III.B.2 & nn.165–66.
53 Harris, 510 U.S. at 21.
54 Id. at 23.
55 See, e.g., EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 1000 (9th Cir. 2010) (“The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.”).
56 See EEOC Guidance, supra, at Section 12-III.B.2; see, e.g., Tessler v. KHOW Radio, No. 95-B-2414, 1997 WL 458489, at *8 (D. Colo. Apr. 21, 1997) (manager’s comments about employee’s yarmulke, while insensitive, were not severe or pervasive); Brown v. Polk Cnty. 61 F.3d 650, 656–57 (8th Cir. 1995) (en banc) (supervisor’s sporadic references to the Bible and voluntary prayers during workplace meetings did not create hostile work environment).
57 See EEOC Guidance, supra, at Section 12-III.B.2.
58 See EEOC Guidance, supra, at Section 12-III.C.
59 See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).
60 See Vance v. Ball State Univ., 570 U.S. 421, 448–49 (2013); Ellerth, 524 U.S. at 762; Faragher, 524 U.S. at 788; EEOC Guidance, supra, at Section 12-III.C.
61 42 U.S.C. § 2000e-3(a); see Burlington N. v. Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
62 See generally EEOC Guidance, supra, at Section 12-III.
63 See EEOC Guidance, supra, at Section 12-IV; Groff v. DeJoy, 600 U.S. 447 (2023).
64 See EEOC, Questions and Answers About the Workplace Rights of Muslims, Arabs, South Asians, and Sikhs Under the Equal Employment Opportunity Laws (Jan. 19, 2017).
65 See EEOC, Religious Garb and Grooming in the Workplace: Rights and Responsibilities (Mar. 6, 2014).
66 See EEOC, Religious Discrimination.
67 42 U.S.C. § 2000e(j).
68 Groff, 600 U.S. at 470.
69 See Hebrew v. Tex. Dep’t of Criminal Just., 80 F.4th 717, 722 (5th Cir. 2023).
70 Id.; see Groff, 600 U.S. at 472; Beickert v. N.Y.C. Dep’t of Educ., No. 22-CV-5265, 2023 WL 6214236, at *4–6 (E.D.N.Y. Sept. 25, 2023) (public school employees’ requested religious exemption from COVID-19 vaccination requirement would have created undue hardship by introducing health and safety risk to the learning environment); DeVore v. Univ. of Ky. Bd. of Trs., No. 5:22-cv-00186, 2023 WL 6150773, at *4–6 (E.D. Ky. Sept. 20, 2023) (similar with respect to public university employee).
71 See, e.g., Kluge v. Brownsburg Cmty. Sch. Corp., No. 1:19-cv-02462, 2024 WL 1885848, at *16–18 (S.D. Ind. Apr. 30, 2024) (Christian teacher’s request for exemption from school guidelines for addressing transgender students by chosen first names and pronouns created undue hardship by undermining safe, inclusive learning environment and offending and isolating transgender students).
72 See generally EEOC Guidance, supra, at Section 12-IV. But see Dixon v. Hallmark Cos., 627 F.3d 849, 856 (11th Cir. 2010) (constructive notice of conflict between employee’s religious beliefs and assigned task was sufficient to trigger obligation to accommodate); Brown, 61 F.3d at 654 (similar); Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359, 1363–64 (S.D. Fla. 1999) (notice sufficient where employer learned of applicant’s religious objection to a particular practice when he contacted former supervisor for a reference).
73 See generally EEOC Guidance, supra, at Section 12-IV.
74 See Larson v. Valente, 456 U.S. 228 (1982); Epperson v. Arkansas, 393 U.S. 97 (1968); U.S. Dep’t of Educ., Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools (May 15, 2023) (“ED Guidance”), at Part I.C.
75 See Schempp, 374 U.S. at 223–25; Engel, 370 U.S. at 430 (invaliding a state law and regulation directing the use of prayer in public schools); Stone, 449 U.S. 39; ED Guidance, supra, at Part I.C
76 ED Guidance, supra, at Part I.C.
77 ED Guidance, supra, at Part I.C. see Garcetti, 547 U.S. at 421; Lane, 573 U.S. at 237.
78 ED Guidance, supra, at Part III.B.
79 ED Guidance, supra, at Part III.D.
80 ED Guidance, supra, at Part III.C.
81 Kennedy, 597 U.S. at 531–36.
82 ED Guidance, supra, at Part I.C.
83 ED Guidance, supra, at Part I.C.
84 See Garcetti, 547 U.S. at 421; Lane, 573 U.S. at 237.
85 ED Guidance, supra, at Part I.C; Lee, 505 U.S. at 599; Wallace v. Jaffree, 472 U.S. 38 (1985).
86 Kennedy, 597 U.S. at 540–41.
87 Lee, 505 U.S. at 592–94; see also Town of Greece, 572 U.S. at 590 (describing Lee as holding that a religious invocation was coercive “in the context of a graduation where school authorities maintained close supervision over the conduct of the students and the substance of the ceremony”).
88 EEOC, Retaliation – FAQs.

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