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October 6, 2025
The U.S. Office of Personnel Management recently issued a memorandum regarding religious expression in the federal employment sector, but all employers should pay attention.
HISTORY: The First Amendment of the U.S. Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first portion of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) is known as the Establishment Clause. In 1802, Thomas Jefferson described the Establishment Clause as “building a wall of separation between Church and State.”[1]
More than 220 years later, the “wall of separation” between Church and State is still under construction.
FEDERAL DIRECTIVES: Since taking office, President Trump and the current Administration have been advocating for more “religious freedom.” Through executive orders, President Trump has created a Department of Justice Task Force to Eradicate Anti-Christian Bias,[2] formed a White House Faith Office,[3] and established the Religious Liberty Commission.[4]
Continuing with this trend, on July 28, 2025, Scott Kupor, the Director of the U.S. Office of Personnel Management (“OPM”), issued a memorandum to all heads of federal departments and agencies providing guidance on how religious expression by federal employees should be regarded.
Specifically, the memorandum “provides guidance to agencies on robustly protecting and enforcing each Federal employee’s right to engage in religious expression in the Federal workplace consistent with the U.S. Constitution, Title VII, and other applicable sources of law.”[5] With this memorandum, the OPM seeks to expand religious expression in the workplace, so long as such expression does not impose an undue hardship on business operations[6] or amount to harassment.
THE LAW: The OPM explicitly relies on Title VII of the Civil Rights Act of 1964 as a basis to outline the religious freedom protections for federal workers. The OPM memorandum notes that Title VII prohibits employment discrimination based on a number of protected characteristics, including an individual’s religion. The memorandum states that Title VII “does not demand mere neutrality with regard to religious practices” but “it gives them favored treatment.”[7]
PURPOSE: The message of the memorandum is clear: “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.”[8] In other words, talking with a co-worker during work hours about a Bible verse should be treated no differently than talking about last night’s football game.
The memorandum also explicitly provides that federal employees, including supervisors, may “persuade others of the correctness of their own religious views” and “encourage their coworkers to participate in religious expressions” (i.e., proselytize), “provided that such efforts are not harassing in nature.”[9]
PERMISSIBLE RELIGIOUS EXPRESSION: The memorandum identifies five specific categories of employee conduct that should not result in disciplinary or corrective action:
PUSHBACK: The OPM memorandum has drawn some criticism. For example, on August 7, 2025, Congressional Freethought Caucus Co-Chairs Jamie Raskin and Jared Huffman sent a letter to OPM Director Scott Kupor expressing concerns that the memorandum undermines the separation between Church and State, particularly in that it provides federal employees the right to impose their religious beliefs on others.[11] Although requested to do so, the OPM Director has not yet provided Congress with an explanation of how the new policies comply with the First Amendment’s Establishment Clause.
IMPACT ON PRIVATE EMPLOYERS: Although directed to federal employers, the memorandum represents another step of the current Administration to expand religious expression in the workplace. With this backdrop, businesses in all sectors, public and private, may find that their employees are more comfortable engaging in religious expression at work, including proselytizing co-workers and other actions that were previously thought to be prohibited but which are now expressly permitted by the OPM memorandum. Private sector employees also may use this expanded view on religious expression in the workplace as a means to broaden the bounds of what is currently deemed a reasonable accommodation for religious purposes.
Please contact our office with any questions about how these new OPM policies may impact your workplace.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
[1] Jefferson, Thomas, Jefferson’s Letter to the Danbury Baptists, U.S. Library of Congress (January 1, 1802).
[2] President Trump, Executive Order 14202, Eradicating Anti-Christian Bias (February 6, 2025).
[3] President Trump, Executive Order 14205, Establishment of the White House Faith Office (February 7, 2025).
[4] President Trump, Executive Order 14291, Establishment of the Religious Liberty Commission (May 1, 2025).
[5] OPM Memorandum, Protecting Religious Expression in the Federal Workplace (July 28, 2025).
[6] See our article here about how the U.S. Supreme Court has defined “undue hardship” for purposes of religious accommodation requests.
[7] Id.
[8] OPM Memorandum, Protecting Religious Expression in the Federal Workplace (July 28, 2025).
[9] Id.
[10] Id.
[11] Letter from Jamie Raskin and Jared Huffman, Request for Clarifications Regarding OPM’s Guidance on “Reasonable Accommodations for Religious Purposes” and Memorandum on “Protecting Religious Expression in the Federal Workplace” (August 7, 2025).
