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School Did Not Violate Title VII By Prohibiting Football Coach From Praying At The 50 Yard Line At The End Of Each Game
Bremerton School District (District) employed Joseph Kennedy as a football coach at Bremerton High School (School) from 2008 to 2015. Kennedy is a practicing Christian, and his religious beliefs required him to give thanks through prayer at the end of each game by kneeling at the 50-yard line. Because Kennedy’s religious beliefs occurred on the field where the game was played immediately after the game, spectators including students, parents, and community members would observe Kennedy’s religious conduct. While Kennedy initially prayed alone, a group of School players soon asked if they could join him. Over time, the group grew to include the majority of the team. Kennedy’s religious practice also evolved and he began giving short speeches at midfield after games while participants kneeled around him.
The District first learned that Kennedy was praying on the field in September 2015, when an opposing team’s coach told the School’s principal that Kennedy had asked his team to join him in prayer on the field. After learning of the incident, the Athletic Director spoke with Kennedy and expressed disapproval of the religious practice. In response, Kennedy posted on Facebook “I think I just might have been fired for praying.” Subsequently, the District was flooded with thousands of emails, letters, and telephone calls from around the country regarding Kennedy’s prayer.
The District’s discovery of Kennedy’s 50-yard line prayers prompted an inquiry into whether Kennedy was complying with its Religious-Related Activities and Practices policy. That policy provided that school staff should not encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or other devotional activity. The District’s investigation revealed that the coaching staff received little training regarding the District’s policy, so the superintendent sent Kennedy a letter advising him that he could continue to give inspirational talks, but they must remain entirely secular in nature. The letter also noted that student religious activity needed to be entirely student-initiated; Kennedy’s actions could not be perceived as an endorsement of that activity; and that while Kennedy was free to engage in religious activity, it could not interfere with his job responsibilities and must be physically separate from any student activity. While Kennedy temporarily prayed after everyone else had left the stadium, he alleged he soon returned to his practice of praying immediately after games. However, the District received no further reports of Kennedy praying on the field, and District officials believed he was complying with its directive.
On October 14, 2015, Kennedy wrote a letter to the District through his lawyer announcing he would resume praying on the 50-yard line immediately after the conclusion of the October 16, 2015 football game. Kennedy’s intention to pray on the field was widely publicized through Kennedy and his representatives, and the District arranged to secure the field from public access. Following the game, Kennedy prayed as he had indicated he would do, with a large gathering of coaches and players around him. Members of the public also jumped the fence to join him, resulting in a stampede. On October 23, 2015, the District sent Kennedy a letter explaining that his conduct at the October 16th game violated the District’s policy. The District offered Kennedy a private location to pray after games or suggested that he pray after the stadium had emptied. Kennedy responded that the only acceptable outcome would be for the District to permit Kennedy to pray on the 50-yard line immediately after games. Kennedy continued his behavior in violation of the District’s directives. The District placed him on paid administrative leave on October 26, 2015. During this time, District employees felt repercussions due to the attention Kennedy gave the issue, and many were concerned for their safety. Kennedy did not apply for a coaching position for the following season, but he initiated a lawsuit against the District asserting, among other things, that his Title VII rights were violated.
After significant litigation and numerous appeals, the district court eventually entered judgment in the District’s favor. Kennedy appealed.
On appeal, the court analyzed Kennedy’s claims pursuant to Title VII, including failure to rehire, disparate treatment, failure to accommodate, and retaliation. To establish a Title VII failure to rehire claim, Kennedy had to show (1) he was a member of a protected group; (2) he was adequately performing his job; and (3) he suffered an adverse employment action. The Ninth Circuit noted that Kennedy established that he is a member of a protected group and he suffered an adverse employment action. The Ninth Circuit, however, concluded that Kennedy could not establish that he was adequately performing his job. Kennedy refused to follow District policy and conducted numerous media appearances that led to spectators rushing the field after the October 16th game in disregard of the District’s responsibility to student safety.
Similarly, to establish a claim of disparate treatment under Title VII, Kennedy had to show (1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably. Kennedy’s disparate treatment claim failed because he could not show the District treated him differently than similarly situated employees. This was because Kennedy’s conduct was clearly dissimilar to that of other assistant coaches.
To establish a claim of failure to accommodate under Title VII, Kennedy had to show (1) he had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected him to an adverse employment action because of his inability to fulfill the job requirement. The Ninth Circuit noted that the evidence showed that the District repeatedly made good faith efforts to reasonably accommodate Kennedy’s religious practices. Kennedy indicated that the only acceptable outcome was for him to pray on the 50-yard line immediately following the game. The District met its burden in establishing that accommodating Kennedy’s religious practices on the 50- yard line would cause an undue hardship.
Lastly, with respect to his retaliation claim, Kennedy had to show (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action. The Ninth Circuit determined that Kennedy was unable to make this showing. The District had a legitimate reason for placing Kennedy on administrative leave because he made it clear he would continue to pray on the 50-year line immediately following games.
For these reasons, the Ninth Circuit concluded the district court properly entered judgment in the District’s favor on Kennedy’s Title VII claims.
Kennedy v. Bremerton School District (9th Cir. 2021) 991 F.3d 1004.
This case demonstrates how contentious religious accommodation issues can become. It is essential that private schools, colleges, and universities clearly document the discussions, interactive processes, and accommodations suggested and/or reached when working to address religious accommodation requests.