Seasonal Holiday Greetings Bedevil Employers

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By Jon Steingart

Nov. 29 — Happy holidays. Season’s greetings. Merry Christmas. These are common expressions over the fall and winter holidays.

It can be a thorny issue for businesses to decide how they will have staff greet customers. Some people who don’t observe Christmas may feel uncomfortable with religious terms, while celebrants might find it peculiar to gloss over the season’s most-visible holiday. While not the most major of Jewish holidays, Hanukkah also comes into the picture this season, as does the African-American festival Kwanzaa.

The issue can rise to the surface because businesses want to avoid offending customers. But often, employees’ religious or nonreligious sensibilities are at issue as well. And an employer might not even realize job discrimination is a possibility.

“If the boss doesn’t know that there are potential religious accommodation issues, it’s up to the employees to inform them,” Daniel Mach, director of the American Civil Liberties Union’s Program on Freedom of Religion and Belief, told Bloomberg BNA in a recent interview. Employees and employers can work together to come up with a reasonable accommodation, he said.

“Under the law, businesses have wide latitude in whether and how to celebrate the holidays unless those decisions violate the civil rights laws on employment discrimination and religious discrimination,” Mach said.

But making an accommodation may not be so straightforward.

‘Merry Christmas’ Prohibited for Some

For Jehovah’s Witnesses, holiday celebrations aren’t simply absent from the faith. They’re prohibited.

That led Richard Appleyard to sue his former employer, Murphy Oil USA Inc. Appleyard said he was fired from his job as a gas station cashier because he wouldn’t follow a district manager’s directive to wish customers a “Merry Christmas.” The company violated Title VII the 1964 Civil Rights Act when it failed to accommodate his Jehovah’s Witness religious beliefs that prohibited saying it, Appleyard said.

Allowing Appleyard to say “Happy Holidays” could have been a reasonable accommodation, the head of another religious freedom organization said. “An employee who refuses this accommodation is being unreasonable because the employee is not being forced to verbally support or affirm any specific holiday or any religious holiday,” Mat Staver, founder and chairman of Liberty Counsel, told Bloomberg BNA in an e-mail provided by a spokeswoman.

The Jehovah’s Witness case is unusual, the ACLU’s Mach said, because it involves a worker seeking accommodation for a religious belief that bars him from giving a Christmas greeting. These disputes usually involve an employee who feels uncomfortable being surrounded by symbols and messages from other religions.

Wal-Mart Tried Two Approaches

Many workplaces, particularly retail stores, make noticeable changes during the holiday season. Employees say “Merry Christmas.” In-store displays include Santa and Rudolph. The music is less Taylor Swift, more Andy Williams.

Title VII requires employers to accommodate employees’ religious beliefs as long as it doesn’t cause the business an undue hardship. The requirement only kicks in when the employer knows about the need for an accommodation.

In 2005, Wal-Mart Stores Inc. shifted from a “Merry Christmas” greeting to having employees wish customers “Happy Holidays.” In response to public outcry, a number of Christian and conservative organizations launched a petition and threatened a boycott. Wal-Mart returned to Christmas greetings the next year.

Liberty Counsel, one of the groups that criticized Wal-Mart, claimed a victory. “Wal-Mart has finally admitted that censoring Christmas is not a good idea,” it said in a Nov. 9, 2006, statement as the next holiday season was getting underway.

Wal-Mart’s generic seasonal greeting was more restrictive than just telling employees to say one thing instead of another, Staver told Bloomberg BNA. “You had Wal-Mart telling the cashiers that they could not return a greeting consistent with the customer’s greeting,” he said. “They were restraining them from greeting them back in the way the customer greeted them.”

“LC prefers ‘Merry Christmas’ over ‘Happy Holidays’ because that is the name of the holiday celebrated,” Staver said. “To not use Merry Christmas is to censor the holiday of its name known and celebrated around the world.”

Legal Questions May Yield to Business Considerations

Wal-Mart didn’t respond to Bloomberg BNA’s inquiries regarding its current and past holiday season greeting policies. But a spokeswoman for Target Corp. told Bloomberg BNA in an e-mail that its “store team members can greet guests however they choose during the holiday season and all year long.”

However, employers should ensure their personnel don’t take religious greetings too far, according to the Equal Employment Opportunity Commission’s compliance manual section on religious discrimination. An employer is more likely to be able to show words “in the manner of individualized, specific proselytizing,” rather than a general religious greeting such as wishing a customer to have a blessed day, would constitute an undue hardship, the agency said, because customers could misinterpret a specific greeting as an official stance of the business, rather than the employee.

In light of employers’ freedom to decide whether and how to have religiously oriented expressions in the workplace, “many of these conflicts appear to be nonlegal ones,” Mach said.

Business considerations may be a stronger influence than the law, he suggested. “Is it off-putting to consumers to go one way or the other? That is not a question of the law. The question is, do you want to shop somewhere else?”

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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