Unchecked Proselytizing Can Trigger Workplace Harassment Claims

Employers that follow the Trump administration in promoting religious expression among workers must exercise caution to avoid claims they’ve created an unlawfully coercive or hostile environment, discrimination attorneys say.

The government unveiled a memo last month that allows agency employees to pray at work and persuade colleagues to adopt “the correctness of their own religious views” during non-working time, as long as it’s not “harassing in nature.”

While the policy applies only to federal workers, employment law scholars and attorneys said it’s possible it could eventually reach the private sector, especially if the US Equal Employment Opportunity Commission and equivalent state anti-bias agencies adopt similar measures. The EEOC’s Republican acting chair, Andrea Lucas, has repeatedly stressed that religious liberty is a top priority.

However, permitting broad or unchecked religious expression may result in the harassment of other workers, employment law scholars and attorneys said. It’s an issue that’s bound to test how far courts are willing to go in deferring to religious beliefs over competing civil rights interests, they said.

“The biggest problem is going to be balancing the rights of folks who don’t want to be converted, or told that their religious views aren’t correct,” along with safeguarding the rights of LGBTQ+ employees and those of minority religions, said Lynn Kappelman, a partner at management-side firm Seyfarth Shaw LLP.

Religious Accommodation

The US Supreme Court in its 2023 Groff v. DeJoy decision held that employers must reasonably accommodate a worker’s religion under Title VII of the 1964 Civil Rights Act unless doing so “would result in substantial increased costs” to their business.

But the US Courts of Appeal for the Ninth, Eighth, Seventh, and Fourth circuits have held that Title VII doesn’t require an employer to accommodate employees who wish to impose their religious views in a way that creates a hostile work environment, or interferes with legitimate business policies.

“When it comes to proselytizing, courts have always been pretty sensitive to that” because it’s “more invasive and has a direct impact on other people,” said Dallan Flake, a law professor at Gonzaga University.

Meanwhile, courts have also ruled that Title VII doesn’t require an employee to forfeit their sincerely held religious practices and beliefs, and companies cannot preemptively bar all religious expression. The Fifth Circuit held that all forms and aspects of religion, however eccentric, are protected unless they cannot reconcile with a business need.

Proselytizing is generally considered a practice or expression, and employees may not request doing it as an accommodation, said Sean Oliveira, an attorney at Ogletree Deakins Nash Smoak & Stewart PC. The issue arises in workplace disputes such as those involving the posting of messages or scriptures that might be perceived as offensive to religious and non-religious workers, he said.

Employers aiming to bar proselytizing or any coercive religious conduct are advised to remain neutral, and undue hardship can be a viable defense, attorneys said.

“What’s important here is not just to say it would hurt morale but that we wouldn’t be able to retain and recruit people” if the conduct is allowed, Kappelman said. “Those things are quantifiable costs for a company.”

“It’s important for people to come to work and feel like they can be productive, effective, and efficient,” she said. “And if they feel like they are not, they will leave.”

‘Power Dynamics’

Some employment law scholars said the Trump administration’s stance, on its face, doesn’t directly conflict with existing case law but will test the boundaries of currently acceptable religious expression in the workplace.

Emily Gold Waldman, a professor and associate dean at the Elisabeth Haub School of Law at Pace University, said the memo’s requiring that religious expression not be “harassing in nature” provides some guardrails.

It also requires religious workers and supervisors to honor the requests of non-adherents to stop proselytizing to them, and that any “unwillingness” to engage in religious conversations can’t be a basis for workplace discipline.

Still, the policy “raises the likelihood of coercive situations between supervisors and employees” because it doesn’t address the power imbalance at work, she said.

If a supervisor tries to persuade a subordinate of their own religious views or invites them to church, the worker could feel pressured to participate, Waldman said. The subordinate might also hesitate to ask the supervisor to stop, even if they find it unwelcome, because they belong to a different religion or aren’t religious, she added.

While the memo prohibits discipline in this context, it “might not provide sufficient reassurance that there won’t be any tangible or intangible repercussions,” Waldman said. “There is no language in the guidance advising supervisors to be mindful of the power dynamics in these situations, and that is concerning to me.”