On July 28, 2025, the United States Office of Personnel Management put out a memorandum to all federal agencies regarding “Protecting Religious Expression in the FederalWorkplace.” I saw this memorandum pop up on the Drudge Report with the headline: “Administration urges federal employees to talk religion at work... Can Proselytize in the Office...” The article that it linked to felt a little sensationalized, but it had a link to the memorandum itself, so I decided to read it over and come to my own conclusion about it.
For context, I
have some qualifications to review and analyze this memo. I worked for seven
years as an Equal Employment Opportunity Specialist. Part of that work included
handling religious accommodations in the workplace, as well as training
employees on their rights and responsibilities under equal opportunity laws,
touching on topics such as religious expression in the workplace. While I did
not work for a federal agency, my employment was public-sector, which is an
important detail because public-sector employees (including in federal
government) have speech protections which private-sector employees do not have.
These protections are in place to ensure government employees can engage in their
free speech rights when not working in their official government capacities,
since their official duties might at times conflict with their speech rights.
(Speaking of which, the opinions expressed in this essay are my own and do not
reflect the official position of any current or previous employers. Thank you.)
Before we get into the new memo, let’s establish a baseline
for what the law says about religious expression in the workplace. Are you
allowed to express your religion in the workplace? Yes. The answer is yes. In
theory, the answer has always been yes, though in practice the answer has only
been yes since the passage of the Civil Rights Act of 1964. Title VII of the
Civil Rights Act explicitly forbids discrimination on the basis of religion.
Furthermore, it explicitly requires that employers accommodate employees’
religious beliefs. Prior to the passage of the Civil Rights Act, employees
could be fired for their religious expression, in or out of the workplace.
Despite the fact
that the law is actually more tolerant today towards religious expression than it was in previous generations, many people still feel their
religious expression is suppressed, and they question
how far their religious expression can go. When I worked in this field, I often
had to answer employee questions on this topic. Whenever I answered, I tried
never to get technical with my answer. Instead, I would offer this general rule
of thumb: to whatever extent work allows you to express yourself, it needs to
allow you to express your religion. I call this a general rule of thumb because
it might not cover all situations, particularly when an employee requests to
accommodate a religious practice. However, this answer usually covered the
situations employees were most concerned about. It’s also a fairly simple rule
to follow. If employee A is allowed to put up a poster of Taylor Swift in their
cubicle, employee B is allowed to put up a poster of Jesus in theirs. If
employee A is allowed to display pictures of vacation, employee B is allowed to
display pictures of church. If employee A is allowed to keep romance literature
at their desk, employee B is allowed to keep religious literature at their desk.
Conversely, if a
general form of personal expression is banned in the workplace, this would usually
cover religious expression of that same type. For example, if employees are not
allowed to play music at work, this ban would apply to gospel music or hymns. Workplaces
might have safety rules prohibiting jewelry, and this would include religious
jewelry. There may be some exceptions for employees who have a religious
practice that their faith requires of them. An example might include allowing
an employee to wear a head scarf worn for religious observance when the
workplace would otherwise ban headwear. Still, as a general rule, religious
expression can be prohibited insofar as specific forms of expression can be
prohibited.
In my experience,
a lot of employees are concerned about expressing their beliefs at work, and
this is something that I always had to ensure people they were allowed to do. ("Yes, you can wish somebody a Merry Christmas." I
would take note of what was general practice at the different locations I went
to. Some locations wanted their lockers free from all decorations, while others
allowed employees to post magnets and stickers. Either was permissible, so long
as they were consistent and treated religious expressions no worse than
non-religious expressions. Some locations had no decorations. Other locations
had open displays of Bibles and crucifixes. Either of these were fine; again,
so long as I saw the practice was consistent in that location.
To illustrate this point about consistency, I want to give a real-life case I worked on. I will keep some details out and not give any personal identifiers, but otherwise this is a real example. I once received a request from an employee who expressed that their faith felt violated by the COVID screening process at their workplace. They requested to be exempt from the process. The employee did not have any issues with being screened for COVID in general, but they presented a religious disagreement with our process.
The program area
denied that their COVID screening practices were in any way harmful or violating,
but the employee expressed their religious beliefs were being violated. I was
responsible for mediating this situation. On initial review, it was difficult
to assess exactly what part of this requestion was “religious,” but guidance on
the law usually requires the employer to assume employees are sincere when they
state their religious beliefs, absent concrete indicators of dishonesty. So I investigated this matter acting under the assumption this request was made in good faith. Upon investigating, I discovered that our policy allowed people to
take the COVID screening in private, and, indeed, many employees did take the
screening in private. They needed to take a cotton swab sample (only if unvaccinated) and
then input some information on a computer. Most people would take the swab sample in the
privacy of their cubicle. Some people used the restrooms. I asked the program head
about this practice, and they clarified for me that the policy did not require
any witnesses. Employees had total privacy under the policy when taking the sample.
When I looked at
the employee’s work unit, however, I discovered that all the unvaccinated
employees had to take their COVID swabs in a room together with no privacy. As
a result, they all had to witness each other taking the screening. One
consequence of this was that employees would all know each other’s vaccination
status, which many people did not like to share. This practice was not
intentional. The work location had very few private areas. It was not an office-type location. Still, the standard of privacy was not being followed.
After investigating,
I was able to ascertain that it was this lack of privacy that was the issue. I
worked with the supervisor to find a private location for this employee to take
their swab. When I called the employee back, I was able to protect our COVID
screening program by maintaining the integrity of our program and informing
them they would still be required to abide by the policy. However, I explained
to them that I had investigated and discovered they were not being afforded the
same privacy as other employees. I offered the employee the opportunity to use
a private location for their screening, and they were genuinely happy that I
was able to arrange this. They told me they were considering quitting, but they
would accept this accommodation and stay.
When working with
religious beliefs, the goal is not to agree with (or even understand) the other
person’s religious expression but to help that employee practice their religion
in a way that brings them to parity with other employees. By taking this
employee seriously, I discovered they were not being offered parity with other
employees. We were in the practice of giving people privacy for their COVID
screening. Therefore, we were required to offer the same level of privacy to
the person who needed it for religious reasons.
The above example
is actually a case of accommodating a religious belief. It is not really about
religious expression per se, but hopefully it illustrates the attitude we
should have towards religious expression in the workplace. It is this attitude
I always carried with me when I performed my job. Turning now to the new
memorandum, I could see this same attitude being expressed in the new guidance
being offered. At one point, it says explicitly:
“Employees must be allowed to engage in private religious expression in work areas to the same extent that they may engage in nonreligious private expression.”
As far as I’m
concerned, I’d be happy if that were the entire memo. This is exactly what the
law has been since 1964. It’s what I’ve been saying for years, and it’s how I’ve
trained employees on the issue. Obviously, you can say that and still question
the application in any given scenario, but this principle remains the same.
In general, this
new memorandum is based on equal opportunity principles that most employers
already follow, because these principles are already encoded in the law. Equal
opportunity law is the result of legal precedent building up over the past 60
years. Employers follow these laws not just because they are good employers but
because they can be sued if they don’t. The fact that this memo gets a lot of
things right is not particularly notable to me. Getting this law right is
literally the job that tens of thousands of administrators in America do every
day, including myself. That said, this memo has two glaring problems, which we
need to discuss.
The first problem
with this memo is that, throughout the memo, the Office of Personnel Management
brings up many examples (good examples, in fact) of permissible religious
expression in the workplace; however, their examples entirely exclude examples outside
of Christianity or Judaism. The examples all lean heavily Christian, with
sporadic Jewish examples inserted. For example, when giving examples of
“indicia of religion”, it cites “crosses, crucifixes and mezuzahs.” It says an
employee should be allowed to “keep a Bible on her desk,” and “may keep rosary
beads or tefillin on her desk.” It continues that if the workplace allows
posters, then it must allow religious posters, such as “those of a crucifix, a
Bible verse, or a Star of David.” It says that “an employee may wear a cross,
[or wear] clothing displaying a religious message.”
I want to be
clear: these are all perfectly good examples. I personally have kept some of
these items at my work desk. The memo is correct that these must be allowed
(again, to the extent other personal displays are allowed). However, to act as
though this document accurately presents the full range of religious expression
allowed under the law would be disingenuous. This is illustrated by the lack of
even a single Islamic example mentioned in this memo, even when such examples
abound in the law. In fact, this memo cites a Supreme Court case, E.E.O.C v.
Abercrombie & Fitch, which was won by a Muslim employee who was
discriminated against because she wore a headscarf; but despite the fact that
the memo cites this case, it entirely omits any mention of employees having the
right to wear head coverings at work, which is really strange, right? This memo
is, after all, guidance for all employees on their right to express their
religion at work, and yet it deliberately omits a clearly established religious
expression.
There is nothing
wrong with putting together a document that tells Christians or Jews what their
rights to religious expression are in the workplace. However, there is something
wrong with putting together a document that purports to tell all employees what
their rights to religious expression are in the workplace, and then proceeding
to exclude all religions but Christianity and Judaism from active consideration.
The result is that this document omits large subsets of religious expression.
What you count as
religious expression is itself at least partially a function of religious
belief. When I was handling religious accommodations, do you know what was the
number one most common religious request I received? It was a request to grow a
beard and be exempt from any facial hair grooming requirements. Yes, beards are
a form of religious expression. Just because most western Christians do not
consider beards to be a form of religious expression, that doesn’t mean they’re
not. Many Eastern Christians, Muslims, and Jews, not to mention smaller religious
groups such as Sikhs or Rastafarians, consider beard growth to be an important form of
religious expression. And yet, you will nowhere find beards in this new
document for federal employees, just as you will find no reference to head
coverings.
I understand that
a 5-page memo cannot be exhaustive. Certain things will always be overlooked,
and that is unavoidable. However, as I look over this document, the complete
and total omission of common forms of religious expression that fall outside
the Western Christian paradigm is enough to make me believe this document is
not meant for people of other faiths at all. To drive this point home, the document
explicitly covers inviting coworkers and subordinates to church with examples
such as, “an employee might invite another to worship at her church despite
being belonging (sic) to a different faith,” and “a supervisor may post a
handwritten note inviting each of his employees to attend an Easter service at
his church.” That this document only cites explicitly Christian worship centers
(churches) and Christian celebrations (Easter) is an indication that the document is biased.
Having said my
piece about the bias shown in this memo, nothing I have said up until now has
touched upon the soundness of the advice it contains. The exclusion of other
groups, such as Muslims or Hindus, does not necessarily make the advice offered
to Christians wrong or misguided. I cannot say, however, that I agree with all
the advice that is given. I will warn my readers that the next part is highly
technical. I am not giving any legal advice here, because I’m not qualified to.
However, I need to get into some technicalities of the law to show my issues.
The OPM memo, as the headlines indicated,
tells agencies that employees are permitted to proselytize in the workplace.
However, it indicates that there may be some limits to the amount of proselytizing
that is permitted. I will quote this part at length:
Employees may engage in
conversations regarding religious topics with fellow employees, including
attempting to persuade others of the correctness of their own religious views,
provided that such efforts are not harassing in nature. (Chalmers v. Tulon Co.
of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996). Such attempts must not be
harassing in nature.) Employees may also encourage their coworkers to
participate in religious expressions of faith, such as prayer, to the same
extent that they would be permitted to encourage coworkers participate in other
personal activities. The constitutional rights of supervisors to engage in such
conversations should not be distinguished from non-supervisory employees by the
nature of their supervisory roles. However, unwillingness to engage in such
conversations may not be the basis of workplace discipline. (Formatted for
internal citations.)
It is true that
there are limits to proselytizing in the workplace, and it is a good thing this
memo touches on that point. Having said that, there are two things wrong with
this paragraph I have quoted. Firstly, the paragraph cites a court case from
the 4th circuit, Chalmers v. Tulon Co. of Richmond, which it uses to
establish that religious proselytizing is not protected if it becomes
harassing. The problem here is that I have read the Chalmers decision, and the
court decision never addresses the issue of harassment. (https://law.justia.com/cases/federal/appellate-courts/F3/101/1012/596374/)
The word “harassment” appears only twice
in the decision, but not in the analysis of Chalmers’ actions which were the
subject of the case. For a quick summery, Chalmers was a Christian manager who
wrote personal letters to two of her employees accusing them of having sin in
their lives that they needed God for. The employer fired Chalmers after one of
these letters fell into the hands of the employee’s wife, who then accused her
husband of infidelity based on Chalmers’ vague language. (In reality, Chalmers was referring to a work issue.) Chalmers claimed that her letters were expressing her religious views
and were therefore protected speech. However, the 4th Circuit Court ruled that the employer was under no
obligation to accommodate such religious expression.
In the Chalmers’
case, the court determined that Chalmers’ actions were not protected and that
the employer was at liberty to terminate her employment. However, the court’s
analysis did not depend on whether Chalmers’ actions constituted harassment. Rather,
it determined that Chalmers’ religious expression was not something that could
be accommodated. To quote the court, “Chalmers' supervisory position at the Richmond office
heightens the possibility that Tulon (through Chalmers) would appear to be
imposing religious beliefs on employees. Cf. Wilson, 58 F.3d at 1342
("Title VII does not require an employer to allow an employee to impose
... religious views on others").”
You see, the
problem with this citation is that it has nothing to do with the memo’s content
for which it is cited. The OPM memo speaks of harassment, but this case does
not address harassment. In fact, this case runs contrary to the memo’s position.
The court said that Chalmers’ supervisory position gave the appearance that the
company, through Chalmers, could be held liable for imposing religion on its
employees. The OPM memo, on the other hand, states that supervisors “should not
be distinguished from non-supervisory employees,” in regards to religious
expression. Obviously, the OPM memo is saying the exact opposite of their source. Either supervisors are treated the same (as the memo says) or they are held to a heightened standard (as the court said).
This brings me to
my second and more important point. In Title VII of the Civil Rights Act of
1964, it states the following:
It shall be an unlawful employment
practice for an employer to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin. (Internal
numbering omitted.)
Take note that
the Civil Right Act never mentions harassment. The reason is simple. Harassment
is not the standard that makes an action discriminatory. The law forbids discriminatory
terms, conditions, or privileges of employment. The courts have decided that
workplace discriminatory harassment, when it is severe or pervasive, amounts to
discriminatory terms, conditions, or privileges. However, it is important to
understand that harassment is illegal because it falls under the general
category of discrimination. It is not the standard by which discrimination is
judged.
In fact, just
last year, the Supreme Court decided another case regarding the definition of discrimination
under Title VII. Up until last year, some courts held that, in certain
discrimination cases, the plaintiffs needed to show that the discrimination had
left them “significantly worse off” in order for them to have a Title VII
claim. The Supreme Court disagreed with this. In Muldrow v. St. Louis, Chief
Justice John Robert’s wrote for himself and five of his colleagues, to say that
the plaintiff in a discrimination case “does not have to show . . . that the
harm incurred was significant. Or serious, or substantial, or any similar
adjective suggesting that the disadvantage to the employee must exceed a
heightened bar. 'Discriminate against' means treat worse, . . . But neither
that phrase nor any other says anything about how much worse.” (Internal
quotations omitted.)
While it is true
that “treating worse” would include harassment, it is not necessarily the case
that something needs to reach the level of harassment before it amounts to
treating somebody worse. The OPM memo seems to acknowledge two limits to
religious expression in the workplace. One is that the proselytizing cannot be
harassing, and the other is that an employee’s refusal to engage cannot be used
as a basis of discipline. However, harassment and disciplining are not the only
forms of “treating worse.” Any form of “treating worse” based on religion is illegal
under the Civil Rights Act. Religious expression that has the effect of
treating certain employees worse than others, based on their difference of
religion, is illegal. Even assuming a standard of harassment, the definition of
what counts as harassment is highly flexible. Under Federal law, as determined
by the courts, harassment is illegal when it is “’severe or pervasive.” However,
this standard might be hard to square with the court’s recent decision in
Muldrow, which appears to eschew the question of severity entirely and focus
purely on “treating worse.” Some states, such as New York, already have a more
expansive definition of harassment. New York’s standard of harassment is anything
more than “what a reasonable victim of discrimination with the same protected
characteristic or characteristics would consider petty slights or trivial
inconveniences.”
The problem here
is that the OPM memo is highly dubious in the limits it sets on religious proselytizing.
It sets the standard at “harassment,” but fails to mention that harassment is
merely a subcategory of discrimination, not a standard, and it cites a court
case that actually runs counter to its point. It states that employees who refuse to engage in proselytizing cannot be disciplined, but we know that Titile VII also offers protections against demotions, discharges, refusal to promote, or subjecting to any inferior work conditions.
The problem here is that the memo fails to established the actual limits on religious expression in the workplace, especially when it comes to directing that expression towards people who do not share their belief. In this regards, employees who follow the direction of this memo may be subjecting themselves to legal risk without even knowing it. Employees like Chalmers may think they are acting in a protected manner, when they are not. The fact that the memo misrepresents cases like Chalmers is highly concerning. For this reason, I would not ever point to this memo for guidance on religious expression in the workplace.
If you are looking for guidance on religious expression in the workplace, I would recommend two things, just to keep it simple. First, you should limit your religious expression within the confines of other general topics, as I discussing above. If somebody wishes you "Happy Holidays," feel free to give them a "Merry Christmas." I am personally in the practice of wishing people "Merry Christmas and (insert happy holidays or name of holiday I know they celebrate here)." If people form book clubs at work, you can form a Bible club. Etc. Etc. Etc. I won't belabor this point.
Second, if there is any religious expression you wish to partake in at work that you think extends beyond the limits of other forms of expression, then submit a request for religious accommodation. Tell your supervisor you have a religious belief or practice that you wish to express at work. Your employer is legally obligated to consider your request and engage in a non-adversarial interactive process to determine if your religious practice can be accommodated without undue hardship. Examples of a request for religious accommodation include, but aren't limited to, requesting to wear a cross when the employer has a no-jewelry policy; requesting time to pray during hours not normally designated for lunch or break; requesting an exception from clothing or groomer requirements to accommodate religious hairstyle or religious garb; requesting to post a church activity on a bulletin board usually reserved for internal memos; requesting to be exempt from representing your company or agency at an event you morally object to. This list could go on.
The important thing to note here is that your request can be denied. If you work in proximity to an MRI machine, you can be denied the request to wear a cross due to the inherent danger posed by the machine. If you are a security guard with fixed posts and schedules, you may be denied the request for prayer breaks outside your standard schedule. If you are a corrections officer, you may be denied your religious request to grow a beard as beards interfere with gas masks used during emergency protocols. You are not guaranteed the right to your expression. You are, however, guaranteed by the law to get full consideration of your request.
Finally, if you are uncertain whether a certain religious expression falls under the first category or second category, you can always ask your HR representative. The bad news is, you will probably get a non-committal answer. I know. I've been in those situations where I was the HR representative giving the non-committal answer. Take that as a sign that you should either refrain from that expression, or you should submit a Request for Religious Accommodation.