Religious Practices In The Workplace – Legal or Not?


In Berry v. Department of Social Services (9th Cir. 2006) 447 F.3d 642, the Ninth Circuit held that neither an employee’s First Amendment rights nor his rights under Title VII of the Civil Rights Act of 1964 were violated when his employer refused to allow him to engage in certain religious practices in the workplace.

Daniel Berry worked for a county Department of Social Services (“DSS”) assisting unemployed and underemployed clients in their transition out of welfare programs. Berry described himself as “an evangelical Christian who holds sincere religious beliefs that require him to share his faith, when appropriate, and to pray with other Christians.” DDS did not prohibit Berry from talking about religion with his colleagues. When Berry began working for DSS, however, he was informed of its policy that employees in his position were not allowed to talk about religion with clients or display religious items in areas frequented by clients, including his cubicle which was frequently used for client interviews. Berry objected to these restrictions, as he had previously placed a Spanish language Bible on his desk and hung a sign that read, “Happy Birthday Jesus” on his cubicle wall. He also objected when DSS refused to allow him to hold a voluntary monthly prayer meeting with other employees in a DSS conference room. DDS did inform him that he could pray in the break room during regular lunch hours or the group could pray outside on Department grounds. Berry filed suit claiming violations of his rights under the Free Exercise Clause of the First Amendment and failure to accommodate his religious beliefs in violation of Title VII. The district court granted DSS summary judgment and Berry appealed.

Ninth Circuit’s Decision

The Ninth Circuit began by finding that Berry’s claims required application of the balancing test articulated by the Supreme Court in Pickering v. Board of Education (1968) 391 U.S. 563. In Pickering, the Court acknowledged an inherent tension between a public employee’s First Amendment right to free expression in the workplace versus the public employer’s interest in regulating that expression when it has the potential of interfering with the functioning of the workplace. The Pickering Court held that reconciliation of those competing interests requires “a balance between [the employee’s rights], as a citizen, in commenting upon matters of public concern and the interest of the [employer], in promoting the efficiency of the public services it performs through its employees.” The Ninth Circuit concluded that Berry’s claims required adherence “to [its] practice of applying the balancing test when confronted with constitutional challenges to restrictions on public employee speech in the workplace,” and proceeded to apply that test to each of his claims.

A. Religious Speech With Clients. Applying the Pickering test to the DSS restriction on Berry’s speech with clients, the Court found the restriction was reasonable. The Court noted that the public employer’s interest in avoiding an Establishment Clause violation by becoming excessively entangled in matters of religion through the conduct of one of its employees trumped the employee’s interest in engaging in religious speech in the workplace.

B. Limitations on the Display of Religious Items. The Court also found this restriction was reasonable. The Court concluded that the need to avoid an appearance of endorsement of religion outweighed any curtailment of Berry’s ability to display religious items in his cubicle, which was frequented by DSS clients.

C. Use of the Conference Room for Prayers. Finally, the Court concluded that the prohibition on Berry’s use of a workplace conference room for prayer meetings also was reasonable. The Court, citing the district court’s decision, noted that the conference room fell “into that category of public property which is not intended to be a forum for public expression of ideas and opinions.” The Court held that the use of the conference room for employee birthdays and other work-related social occasions was “not the type of intentional opening of a nontraditional forum for public discourse … necessary to convert a nonpublic forum into a public forum.” Thus, the decision to deny Berry the right to use the conference room for prayer meetings did not violate his First Amendment rights.

D. Title VII Claims. The Court also held that the restrictions on Berry’s religious practices in the workplace did not violate his rights under Title VII. The Court ruled that DSS “clearly demonstrated that it cannot accommodate Berry’s desire to discuss religion with the Department’s clients or his preference for displaying religious items in his cubicle.” In addition, it found the argument that allowing prayer meetings in the conference room would require DSS to open the conference room to any and all groups constituted a legitimate, non-discriminatory and non-pretextual business justification for not allowing the prayer meetings. The Court found no failure to accommodate or disparate treatment in violation of Title VII.


As the Berry Court acknowledged, “[p]ublic employers … face the difficult task of charting a course between infringing on employees’ rights to the free exercise of their religions under the First Amendment and violating the Establishment Clause of the First Amendment by appearing to endorse their employees’ religious expressions. The Pickering balancing test resolves these sometime conflicting rights by recognizing the legitimacy of the interests asserted by both sides. It provides a chart by which a public employer may navigate a safe course.” In Berry, DSS successfully navigated this course by allowing employees to express their religious beliefs in the workplace so long as they avoided doing so in the presence of DSS clients. The Court found this restriction was not only reasonable, it outweighed any resulting curtailment of Berry’s rights either under the First Amendment or Title VII.