voiding Holiday Legal Entanglements

A Policy Regarding Holiday Decorations…

As the Second Circuit Court of Appeals has aptly stated, “no holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays.” Before decking the halls, employers should consider the location of holiday decorations. Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another. For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive. Therefore, employers who wish to decorate the workplace should use non-religious, winter-themed decorations such as snowflakes, snowmen, candy canes, holly, and gingerbread houses.

Since non-religious decorations are permissible, there is always a debate over whether a Christmas tree is a religious symbol. While a decorated tree may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is generally a secular nonreligious symbol. This view was also adopted by the EEOC. Thus, employers may include Christmas trees among their decorations even if an employee objects. Nevertheless, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace. Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.

Another albeit much more risky approach to holiday decorations is to include religious and nonreligious decorations representing a diverse set of cultural beliefs. In determining whether a public entity’s holiday and seasonal display that attempts to include all types of religions and beliefs conforms with the Establishment Clause, federal courts consider three factors: (1) whether the display is noncoercive; (2) whether the display does not give a direct benefit to religion in such degree to establish or tend to establish religion; and (3) whether the display conveys a message to the reasonable observer that the combined display was an effort to acknowledge cultural diversity. (See American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler)

Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question. Prohibiting employees from displaying religious holiday-themed decorations in their own workspaces may give rise to claims of violation of free speech and religious expression. Also, because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations, or if it is visible to the public in a way that implies the entity’s endorsement of a religion.

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

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