Merry Christmas — can I make my employees say that?


First, Merry Christmas from me to you.  Christmas is a special time of year for me and my family, and whatever holiday you celebrate, I wish for you at least one special season of joyful celebration with friends and family.

In your business, do you send Christmas cards, or holiday cards?  Maybe you send Thanksgiving cards to avoid the issue altogether.  Maybe you’re celebrating Mawlid al-Nabi, the birth of the prophet Muhammad in January (though I realize that is controversial in Islam).  Regardless, “Merry Christmas” is a hot button topic.

But what if you do want to say Merry Christmas to your customers?  You know your customers, and generally you can decide to wish them a Happy Hanukkah if you wish.  Your customers are your customers, and unless you are making decisions for the government, you are free to talk about any religious holiday you want with your customers.  Governments, as you know, DO need to be inclusive or non-religious in their messages… but that gets into a long line of complex — but very interesting — First Amendment case laws.

For me, the debate over whether to say Merry Christmas or Happy Holidays or Seasons Greetings, makes me want to remind you that religion is different than most other protected characteristics or categories of employees.  I don’t want you to be surprised by a discrimination charge you never saw coming.

Religion is different because employers of a certain size must accommodate their employees’ religious practices.  Religion is like disability and — to some extent — pregnancy.  You treat race, gender, national origin and ethnicity the same, or consistently, you’re fine.  But if you uniformly apply work rules regardless of your employees’ religious beliefs and practices, you COULD face a losing lawsuit.

So let’s use the Merry Christmas debate as an example.

Let’s assume you run a retail store and you WANT your employees to wish your customers Merry Christmas when your customers finish checking out. An employee tells you she doesn’t want to say Merry Christmas because she is atheist.

Maybe this seems like a quick fix. But you will likely have lingering questions in your mind: Is being an atheist a religious belief under the law? Do I have to accommodate atheism? Does it have to be part of organized religion? This issue wasn’t a big deal to me, but the next employee belief might be? And how much do I have to change my business for my employees? What if I operated a Christian book store? Do I have to give certain employees every Sunday morning off? What if I know my employee is doing to opposite of what they say they believe off the clock?

Basically, you don’t want to INVITE a lawsuit by being totally unreasonable, but you’re in business, after all. Giving employees an alternative greeting for customers is one thing, but you can’t run a pizza parlor AND give everyone who works for you the same day off for religious reasons.

Here are questions you can have the courts consider if you are sued for religious discrimination. That means they are questions you can and should consider when a work rule or expectation overlaps or conflicts with religion in your workforce.

  • Is the religious belief and practice a sincerely held belief?
  • Is the belief a religious belief in the mind and heart of the employee?
  • What is the cost of accommodating the religious practice?
  • What is the purpose of your business? If you’re a Christian church, of course, you can require your employees to say Merry Christmas. But what about the janitor at a Christian school?

In order to NOT accommodate the religious belief or practice, you are going to need to prove that the accommodation would have been an undue hardship. That could be a monetary cost, or the disruption in the workplace.

Another question to consider is whether your employee gave notice that they weren’t complying because of his or her religious belief?  Abercrombie and Fitch is currently defending itself in the U.S. Supreme Court, arguing that an applicant who was wearing a headscarf – and admittedly wasn’t hired because of the headscarf – had not given her boss enough notice that she was wearing the headscarf for religious reasons.

Most of my clients don’t want to be the test case to defend their employment decisions all the way to the US Supreme Court. And that brings me to the final lesson in today’s video:

HR decisions are an art and not a science. There is no one-size-fits-all answer for every business and every situation. If you’re the Greens and own Hobby Lobby, or the Cathys and own Chick-fil-a, you may have decided that certain management decisions should be defended as zealously as allowed under our Constitution. But that is not the norm, at least not in my experience.

Usually these decisions involve balancing what the employer wants to do, with what is required by the law, and real life risks of taking any given action. Most decisions have risks either way you go – risking legal action or the impact to your company of allowing changes in your dress code, in the case of Abercrombie. That’s why it is so important to talk through these decisions when they arise.

The questions I gave you earlier (sincerely held religious belief, cost of accommodating it, etc.) are the questions a court – and even the Equal Employment Opportunity Commission will be asking themselves if your employee brings a charge of discrimination. More importantly, they are the questions a plaintiff’s attorney will be asking your employee before they decide to take their case.

With these fresh in your mind, I hope it will help you spot those times you want to slow down and consult with an expert before you take action against an employee.