New city policy on religious expression raises concern

By Mary Kaye Ritz
Advertiser Religion & Ethics Writer

New guidelines on religious expression in the workplace allow city employees to distribute religious pamphlets and express religious beliefs on city property in their off hours.

In an attempt to clarify the handling of religious expression by city employees, the new guidelines state that "employees have a right to freely express their religious beliefs in the workplace as long as such expression does not unreasonably interfere with work requirements, harass other employees, or confuse a reasonable observer (in places open to the public) into believing the employer is endorsing religion."

The guidelines are the result of a complaint and subsequent lawsuit by Kelly Jenkins, a Calvary Chapel member who wanted to distribute church announcements and maps to the church in a city break room.

Kelly's attorney, James Hochberg, indicated yesterday his client was pleased with the decision.

"Basically, the law says if a government agency opens the forum for non-governmental-purpose expression, they can't discriminate against the expression," Hochberg said. He added that the lunchroom bulletin board held notices of baby lu'au, cars for sale and other non-work materials.

"There was no restriction on what kind of material could be brought in except Kelly's," Hochberg said.

But the new policy is causing some concern.

"The new guidelines only prohibit such expression when it 'unreasonably interferes with work requirements' or rises to the level of harassment," said Lois Perrin, legal director for the American Civil Liberties Union of Hawai'i. "This is too high a bar.

"... Although the ACLU defends the freedom of speech and religious expression rights of employees, the ACLU is concerned that the new guidelines do not provide adequate protections to prohibit an employee from forcing his or her religious views on co-workers."

City spokeswoman Carol Costa said a memo outlining the guidelines was distributed to 20 department heads and agency directors at the beginning of April. A copy was made available to the media yesterday.

Deputy Corporation Counsel Greg Swartz said it's a delicate balance on three fronts: what an individual has a right to express, the city's ability to conduct business, and other employees' rights to go about their breaks without being preached to.

"There will be further guidelines on what is permitted, what's not permitted," he said. "That may take a little longer. ... A worker in the workplace has a right in non-work time (to express his religion), but he doesn't have the right to impose himself on unwilling people.

"We're not talking about people distributing literature to the public, nor about postings and other materials in areas the public frequents" — both of which are forbidden, he added. Nor can the city "engage in any activity that can reasonably be construed as endorsing any particular religion," he said.

Jenkins, a laborer with the city maintenance department, filed a complaint on Aug. 25, 2000, with the Civil Rights Commission, saying that in 1999, he left brochures at a city lunchroom and a supervisor kept throwing them away. In January 2003, the Civil Rights Commission decided he didn't have a case, said Hochberg.

After a lawsuit was filed, a settlement was reached with the city, and the policy was released as part of that settlement. Jenkins has since been transferred to another department.

Reach Mary Kaye Ritz at mritz@honoluluadvertiser.com or 525-8035.