Fact check: Do new rules expand federal employees’ religious rights in workplace?
Trump administration suggests earlier rules sidelined people of faith
Read the first two paragraphs of a Fox News article from yesterday, and you’d be likely to think that the U.S. government was turning a deliberately godless work environment for its employees into a bastion of religious freedom:
FIRST ON FOX: Federal agencies are now required to protect religious expression in the workplace, according to a new government-wide memo obtained by Fox News Digital on Monday — marking one of the most sweeping moves in decades to defend faith and freedoms in the civil service.
The Office of Personnel Management (OPM) on Monday sent guidance to federal agencies across the Trump administration, detailing the new requirements, which ensure federal workers can display Bibles, crucifixes, or mezuzahs on their desks; pray in groups while off-duty; invite colleagues to church; and speak about their religious beliefs, even to the public, without fear of reprisal.
The article went on to quote OPM Director Scott Kupor as saying:
Under President Trump’s leadership, we are restoring constitutional freedoms and making government a place where people of faith are respected, not sidelined.
The new guidelines have received heavy coverage by news media, with some headlines and articles merely pointing out that they have been issued and others suggesting that there has been a drastic change.
Here’s a sampling of headlines from mainstream and conservative news media:
Washington Post: Trump administration urges federal employees to talk religion at work
CBS News: Trump administration says federal employees can encourage co-workers to "re-think" their religious beliefs
CNN: Trump administration allows federal workers to promote religious beliefs
Politico: Federal employees can pray and preach in the workplace under new Trump rules
Reuters: US to allow federal workers to promote religion in workplaces
New York Times: New Trump Administration Guidelines Stress Workplace Religious Freedoms
American Family News: Federal agencies ordered to protect their workers' religious liberty
The articles raise the question: Did the Trump administration expand federal employees’ religious freedom at work in a significant way?
Truth verdict: ❌
To the extent that the news coverage suggests a major change of policy, the articles are misleading. While Kupor did publish new guidelines, they are largely a restatement of guidelines that have been in place since the Bill Clinton administration published them in 1997.
Both the old and new guidelines emphasize that federal employees have the constitutional right to express their religious views in a way that doesn’t interfere with their work duties, and both emphasize that federal employees can’t impose their religious views on others or share their views in a harassing manner. There are a few lines in the new guidelines that might be an expansion of religious rights, but they apply to a limited number of employees.
Old vs. new
Here’s a quick look at the old and new guidelines as they pertain to the specific issues mentioned in the Fox News excerpt above. (All material except that in brackets is quoted verbatim from the policies.)
General policy:
Old: Executive departments and agencies (“agencies”) shall permit personal religious expression by Federal employees to the greatest extent possible, consistent with requirements of law and interests in workplace efficiency as described in this set of Guidelines.
New: Agencies should allow personal religious expression by Federal employees to the greatest extent possible unless such expression would impose an undue hardship on business operations.
Display of religious items:
Old: An employee may keep a Bible or Koran on her private desk and read it during breaks. … Employees are entitled to display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages. … Employees generally may wear religious medallions over their clothes or so that they are otherwise visible. [Examples of what employees can do.]
New: Employees should be permitted to display and use items used for religious purposes or icons of a religiously significant nature, including but not limited to bibles, artwork, jewelry, posters displaying religious messages, and other indicia of religion (such as crosses, crucifixes and mezuzahs) on their desks, on their person, and in their assigned workspaces.
Group religious activities
Old: During lunch, certain employees gather on their own time for prayer and Bible study in an empty conference room that employees are generally free to use on a first-come, first-served basis. Such a gathering does not constitute religious harassment even if other employees with different views on how to pray might feel excluded or ask that the group be disbanded. [Example of what employees can do.]
New: Agencies should allow one or more employees to engage in individual or communal religious expressions in both formal and informal settings alone or with fellow employees, so long as such expressions do not occur during on-duty time.
Inviting colleagues to church
Old: A supervisor may invite coworkers to a son's confirmation in a church, a daughter's bat mitzvah in a synagogue, or to his own wedding at a temple. But a supervisor should not say to an employee: “I didn't see you in church this week. I expect to see you there this Sunday.” … On a bulletin board on which personal notices unrelated to work regularly are permitted, a supervisor may post a flyer announcing an Easter musical service at her church, with a handwritten notice inviting co-workers to attend. … During a wide-ranging discussion in the cafeteria about various non-work related matters, a supervisor states to an employee her belief that religion is important in one's life. Without more, this is not coercive, and the statement is protected in the Federal workplace in the same way, and to the same extent, as other constitutionally valued speech.[Examples of what employees can do.]
New: 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. 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.
Speaking to the public
Old: Where the public has access to the Federal workplace, all Federal employers must be sensitive to the Establishment Clause's requirement that expression not create the reasonable impression that the government is sponsoring, endorsing, or inhibiting religion generally, or favoring or disfavoring a particular religion. This is particularly important in agencies with adjudicatory functions.
New: An employee’s ability to make religious expressions in their personal capacities in areas accessible to the public should be treated in the same manner as if those expressions are made in areas inaccessible to the public as their rights to free expression are not limited upon entering a public facility.
What’s new
The old policy intentionally does not address in detail what federal employees may say to the general public about religious matters. In fact, it says: “The Guidelines do not comprehensively address whether and when the government and its employees may engage in religious speech directed at the public.”
The new policy does not address communications to the public in broad terms beyond what is stated above, but it does give four examples of what would be allowed. It is not clear to what extent these activities would have been allowed under the old policy:
A park ranger leading a tour through a national park may join her tour group in prayer.
A doctor at a Veterans Affairs hospital may pray over his patient for her recovery.
A security guard stationed at the front desk of a federal office building may display and use a crucifix, Bible or rosary beads.
A receptionist in a doctor’s office at a VA medical center may pray with a coworker in the patients’ waiting area.
Beyond the specific changes made by the new rules, the two policy statements differ in tone. The old policies are presented in a straightforward manner, providing little more than a list of rules and examples. But the new guidelines are couched in language intended to state both political and legal reasons for the guidelines. The new guidelines open with this statement:
The Founders established a Nation in which people were free to practice their faith without fear of discrimination or retaliation by their government.” President Trump is committed to reaffirming “America’s unique and beautiful tradition of religious liberty,” including by directing “the executive branch to vigorously enforce the historic and robust protections for religious liberty enshrined in Federal law.”
The Federal workforce should be a welcoming place for Federal employees who practice a religious faith. Allowing religious discrimination in the Federal workplace violates the law. It also threatens to adversely impact recruitment and retention of highly-qualified employees of faith.