Dear Legal Mailbag:

As the principal of an elementary school (let’s call it Acorn Elementary for fun), I like to promote a friendly atmosphere for students and staff. But the new secretary may be overdoing it. As soon as we all came back after Thanksgiving, she started answering the telephone, “Acorn Elementary School. Merry Christmas to you and yours!”

The first time I heard her answering the phone in that way, I thought I would let it go. But every time the telephone rang, she would answer “Merry Christmas!” with such reckless abandon that I felt I had to say something. As gently as I could (to preserve that “friendly atmosphere” that I was bragging about), I told her that she had to quit answering the phone with “Merry Christmas!” I tried to appeal to her good nature by reminding her that some of our students don’t celebrate Christmas and that we have to take their feelings into account.

I was surprised by her polite but firm response. “I am a Christian, and I have the right to wish people a Merry Christmas, because it is my favorite holiday. We still live in America, don’t we?”

I pushed back, and told her that I was giving her a directive — stop saying Merry Christmas when she answers the telephone! I even had to mention the consequences of insubordination. But she didn’t back down. She told me that the school district has a duty under Title VII to accommodate her religious practices. She even warned me that she will file a charge of discrimination with the EEOC if I don’t back off. What is going on here?

Am I the Grinch?

Dear Grinch:

Legal Mailbag assures you that you have the right to tell the secretary to stop answering the telephone with “Merry Christmas to you and yours.” Indeed, you may have a duty to do so.

In considering this matter, we start by considering whether the secretary has a free speech right to greet callers as she sees fit when she answers the phone at Acorn Elementary School. She does not have that right. Answering the telephone is part of her job duties, and the United States Supreme Court has ruled that public employees cannot claim First Amendment free speech rights when they speak pursuant to duty. Garcetti v. Ceballos (U.S. 2006).

The intrepid secretary, however, does not rely only on the free speech clause of the First Amendment, but rather also on the prohibition in Title VII against discrimination on the basis of religion. She is correct in stating that employers (including school districts) must accommodate the religious practices of their employers (though the standard for such required accommodations is significantly lower than that for accommodating persons with disabilities under the ADA). However, the secretary is incorrect in asserting that the district has a duty to accommodate her preference to wish people “Merry Christmas” when she is doing her job. There is a difference between accommodating religious practice and employees choosing to engage in an optional religious activity, such as a religious retreat or wishing people “Merry Christmas” when answering the telephone.

This distinction is evident in guidance from the United States Department of Labor on religious accommodation:

A religious accommodation is any adjustment to the work environment that will allow an employee or applicant to practice his or her religion. The need for religious accommodation may arise where an individual’s religious beliefs, observances or practices conflict with a specific task or requirement of the position or an application process. Accommodation requests often relate to work schedules, dress and grooming, or religious expression in the workplace. If it would not pose an undue hardship, the employer must grant the accommodation.

United States Department of Labor, “Religious Discrimination and Accommodation in the Federal Workplace.” Significantly, such accommodation is required only when it imposes no more than a de minimus hardship on the employer.

It is unlikely that her desire to greet callers to the school with “Merry Christmas” would be considered a religious practice worthy of accommodation, because it is hard to see how your prohibiting her from doing so interferes with her “religious beliefs, observances or practices.” Even it if did, however, your accommodation could simply be to permit her to wish people a Merry Christmas in private conversation, but not when she is acting as a representative of the school. See Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470 (7th Cir. 2001) (court denied employee request for injunction permitting her to say “have a blessed day” in correspondence with all customers).

Finally, Legal Mailbag wonders aloud whether your directive may actually have been necessary. As a public entity, Acorn Elementary School should not be acting (through its employees) to advance or inhibit any particular religion or religion in general. In today’s world, a court may well find that a public employee wishing someone a “Merry Christmas” while on the job does not advance religion but is rather a secular expression. However, it is not clear how a court would rule on this narrow point, and a Grinch (or a careful elementary school principal) may rather be safe than sorry and tell the secretary to cease and desist with the Merry Christmas greetings.

Originally appeared in the CAS Weekly Newsletter.