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4.11.08 Issue #318 Forward This Newsletter To A Colleague

Michael Moore, Esq.
Director McKenzie
HR Solutions
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To Pray or Not To Pray

Our consultants have recently been confronted with practices that are conducting prayer sessions as part of the morning meetings or daily huddles. Although few doctors have questioned the wisdom of these activities, they should seriously consider discontinuing these activities on-site.

I am now working with a doctor in Michigan who is defending a religious discrimination suit brought by a former employee. The doctor and her staff took time for prayer at the end of each morning’s meetings. The doctor told all incoming staff about the prayers and that attendance was entirely voluntary. This particular employee claims to have declined to participate and, as a result, was shunned by co-workers and the doctor and eventually terminated after she complained of the discriminatory treatment. The doctor faces months, if not years, of litigation and tens of thousands of dollars out of pocket.

In light of this, I had considered incorporating into our Employment Policies a written notification to be given to each staff member—to be signed by each—which would address the prayer sessions, confirm the voluntary nature of them and confirm that no retaliation will be tolerated for not participating. I had considered it, but ultimately I have concluded that even that document will not effectively immunize a doctor against religious discrimination litigation.

The problem with on-site prayer is that it affirmatively injects religion into the workplace. No other type of potentially discriminatory conduct has similarity. Consider this admittedly extreme example: Say that a doctor belongs to a white supremacist organization and decides to take 10 minutes at the end of each morning huddle to promote education in white supremacist theory. He has each employee sign a notification that participation is voluntary and no retaliation will occur for not joining. The impact of this on minority staff members, or those related to minorities, or even those who have differing views of culture, is immediately apparent.

The problem with introducing the doctor’s view of religion, or race, or any other cultural attribute into the workplace is that there is an implicit coercive impact on the staff. Our consultants have expressed concern that co-worker friction is almost inevitable when one staff member declines to participate. Indeed, the United States Supreme Court has grappled with this conundrum in the context of “voluntary” school prayer and has pretty much decided that the inherently coercive impact of the school environment cannot guarantee that participation is indeed voluntary.

Doctors should consider the flip side of this coin. If they promote—even “voluntarily”—their religious preference, do they not open up the practice for staff to evangelize for their own denomination or religion? How would you as a doctor react to a staff member “witnessing” to other staff during lunch hours or breaks?

Of more concern, the courts have held that an employer must provide reasonable accommodation for an employee’s religious practices. Failure to accommodate can result in liability. If the doctor sets aside time on-site to conduct prayer for one religion or denomination, it makes it easier for a staff member to argue that his or her religion must be accommodated.

As a litigator, I must look at how this will play out before a judge and jury. Many jurors do not like to disclose their religious preferences—or their preferences against any religion at all. If a juror is of a different denomination—not to say religion—than the doctor, he or she might very well reject the doctor’s prayer sessions out of hand.

These are only a few issues that such activities raise. My strong recommendation is that the doctor—if he or she insists on continuing the practice—hold any prayer sessions off-site and off company time. Certainly the doctor can convene with those who would participate over breakfast. But the problem of coercion and potential staff friction remains. It is best that prayer be personal.

Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie’s HR Solutions, Mike is the creator of The Employment Policy and Handbook, geared to provide dentists who are unsophisticated in the legal arena with a step-by-step policy manual.For more information, Click here.
Interested in having Mike speak to your dental society or study club? Click here.

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