Legal Question in Civil Rights Law in Kentucky

At work we usually where a uniform. On the Friday before Christmas we were allowed to wear the shirt of our choice as long as it was offensive. One of my employees wore a shirt that said "there probably is no god". A couple of my other employees complained that is offensive so I gave the employee another shirt to wear over the shirt he had on. He started throwing a fit saying that I was infringing on his first amendment rights. He said that since he was an atheist that his shirt was considered a religious article of clothing and that by us making him cover it up we were violating his civil liberties. Does he have a leg to step on?

Asked on 12/24/11, 3:36 pm

3 Answers from Attorneys

Andrea Welker Welker Law Office

The shirt said "probably?" Then he can't even claim he's an atheist, he's simply uncertain. Agnostic perhaps. It sounds more as though he is expressing an opinion than expressing religious beliefs. And his opinion is "I'm not sure." I'm not quite up to date on case law pertaining to whether that would qualify as his "religion," but it sounds like not.

Anyway, if you aren't a government employer, you can't infringe on his First Amendment right to free speech. Free Speech applies to the government only, not to private citizens. People always cry "but it's free speech!" Sadly, our civics education is lacking; people think that excuses them from the repercussions of their speech in the private sector.

I wouldn't frankly care about offending other employees, and as a matter of good management would have told them he has as much right to non-belief as they have to believe so they should get over it, but I think it's perfectly reasonable to expect that your employees not harm your business interests by purposely offending your religious customers. That's the consequence of speech -- you can lose business because people won't buy your product or services if they find your speech distasteful, even when your speech is right.

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Answered on 12/26/11, 2:34 pm
Patricia Abell Abell Law Office

While free speech would not apply if you are not a public/government employer, discrimination laws do apply. If he is genuinely an atheist, he is protected from religious discrimination. Whether state or federal anti discrimination laws apply to your company depends upon the number of employees you have - 8 for Kentucky and 15 for federal. There may be a local ordinance in your city or county that starts its coverage with a different minimum number of employees.

If you are a covered employer, you may not discriminate based upon religion and that includes not believing in God. It does not matter if he relies upon the wrong legal protection - he is still protected. His non-belief in God must be a ďa sincere and meaningful belief" to be protected. Obviously, there are some issues with whether this person has " a sincere and meaningful belief" in atheism; but arguments are for lawyers, lawsuits and courts and you want to avoid expensive litigation. Another question is whether this single incident is actionable. The answer to that would require a more in depth look at the situation.

However, you do have a situation that may escalate into a more serious legal problem down the road. I suggest that you report this incident to your boss or to the HR department and let them deal with it as they see fit. If you are the owner, you should meet with your attorney, or find one in your general area who can help you deal with the issue proactively.

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Answered on 12/27/11, 7:19 am

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