Lynn Kappelman and Dan Klein Quoted in Massachusetts Lawyers Weekly
"Keeping the faith ... at work: Religion at office tests wall between church and state"

The article, "Keeping the faith ... at work: Religion at office tests wall between church and state," in the February 26 issues of the Massachusetts Lawyers Weekly notes "religious expression in the workplace is provoking debate among employees and employers and is, in some cases, leading to hard-fought lawsuits and major court decisions.  The workplace has long been a hotbed of complaints alleging discrimination based on race, gender or sexual orientation, but only recently have intra-office conflicts — and ensuing complaints — about an individual's spiritual beliefs or observance of religious customs become more frequent.

"Faith-based discrimination claims against employers have increased "precipitously" in recent years, as have refusals by employees "to leave their religious practices in the parking lot" when they arrive at work, says the Massachusetts Bar Association in promotional literature it recently distributed for an educational program on "Religion in the Workplace."  Among the faculty at the Jan. 30 standing-room-only event was Boston attorney Lynn A. Kappelman, who represents management in her employment practice.  Kappelman attributes the emergence of religious faith as a workplace issue to "the emerging desire" for diversity of all kinds at places of employment. "There's a movement afoot to encourage people to bring their whole selves to the workplace, and that includes their religious practices, garb, music, paraphernalia at their desks."

"I want to emphasize that I'm not making a judgment call that it's a good or bad thing; you just have to recognize that [an employee's religious observance at work] has both financial costs and opportunity costs for the employer and the other employees," she says.  As the debate continues, the establishment of "affinity groups" appears to be an option for employers dealing with employee requests for accommodation of their diversity — religious or otherwise.  "People want to get together with other folks in the workplace who share their same beliefs and goals," Kappelman says. "Sometimes companies decide they want to encourage that, to make people feel as comfortable in the workplace as possible.  What sometimes happens," Kappelman warns, "is you'll get divisiveness ... an evangelicals group, for example, that feels that gays and lesbians are all sinners. So you have to make sure affinity groups are not exclusive groups."  Kappelman says "diversity consultants" are another option for employers. The consultants differ from lawyers retained to advise clients on diversity, among other issues, because "their focus is trying to encourage people to celebrate each other's differences," she says and adds, "It would be very hard to find a company these days that isn't encouraging diversity."

Boston management-side attorneys Lynn A. Kappelman and Daniel B. Klein track religion-related cases nationwide and are knowledgeable about the facts of a few of the more interesting legal challenges posed to employers by religiously observant employees in recent years:  A "very well-known national company," as Kappelman describes it, was receiving numerous employee complaints about a Muslim religious practice that requires the washing of one's feet twice a day.  "The Muslim employees were washing their hands and feet in the common bathrooms, and a lot of employees were offended," Kappelman explains, adding, "It was a bona fide religious practice."  The company defused the situation, she says, by building a separate "ablution room" for the cleansing of feet.   Klein tells of a court case in the state of Washington where a restaurant waiter who wore tattoos on his wrist was fired by his employer, which had a policy of "no visible tattoos." The waiter claimed that he was a Kemeticist and that his tattoos were in keeping with traditions of his ancient religion.  "Ultimately, the court rejected the restaurant's argument that the tattoos were inconsistent with presenting a family-friendly image" for the eatery, Klein says. "The court also noted that not one customer had complained."