Office of Personnel Management Says Federal Employee Religious Speech In Workplace Is Protected

Yesterday, the federal Office of Personnel Management issued a Memo (full text) to heads of federal departments and agencies on Protecting Religious Expression in the Federal Workplace. The cover letter transmitting the Memo says in part:

The memo provides clear guidance to ensure federal employees may express their religious beliefs through prayer, personal items, group gatherings, and conversations without fear of discrimination or retaliation....

The memo builds on OPMʼs July 16 guidance on reasonable accommodations for religious purposes....

The Memo itself defines kind of religious speech that should be protected in the federal workplace, saying in part:

... Employees should be permitted to display and use items used for religious purposes or icons of a religiously significant nature ... on their desks, on their person, and in their assigned workspaces. 

... Agencies should allow ... 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...

... 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. The constitutional rights of supervisors ...should not be distinguished from non-supervisory employees.... However, unwillingness to engage in such conversations may not be the basis of workplace discipline.   

...  [W]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.....

Among the specific examples of protected employee speech set out in an Appendix to the Memo are:

• An employee may invite another to worship at her church despite being belonging to a different faith. 
• On a bulletin board meant for personal announcements, a supervisor may post a handwritten note inviting each of his employees to attend an Easter service at his church....
• A park ranger leading a tour through a national park may join her tour group in prayer.
• A doctor at a Veterans Affairs (VA) hospital may pray over his patient for her recovery.....

The Hill reports on the Memo. [Thanks to Thomas Rutledge for the lead.]

Office of Personnel Management Issues Memo On Religious Accommodations

Yesterday, the U.S. Office of Personnel Management released a Memorandum on Reasonable Accommodations for Religious Purposes (full text) instructing executive branch agencies and departments to "adopt a generous approach to approving religious accommodations." The Memorandum in particular discusses Telework, compensatory time off and Maxiflex work schedules as methods of accommodating religious practices. The Memorandum reads in part:

Upon receiving a request for a religious accommodation, agencies must engage in a good-faith interactive process with the employee to explore reasonable accommodations. Agencies should further assess whether an accommodation imposes a substantial burden on operations. Agencies should document their analyses to ensure compliance with Title VII and applicable law. Agencies are also reminded that religious accommodations may involve multiple, complementary or hybrid approaches to fully address an employee’s religious needs. For example, combining telework and a maxiflex work schedule could be particularly effective for practices such as Sabbath observance, where religious obligations may span only part of a workday. Agencies should consider tailored solutions in ensuring compliance with Title VII.

Fox News reports on the Memorandum.

Administrative Law Judge Sues Over Requirement To Watch LGBT Diversity Training Video

According to yesterday's Houston Press, a Social Security Administrative Law Judge has filed a federal court lawsuit claiming religious discrimination after the agency refused to accede to his religious objections to viewing a 17-minute LGBT diversity training video.  In the lawsuit, ALJ Gary Suttles claims that the refusal by the Houston office's chief administrative law judge to grant him a religious accommodation and her insistence that he watch or read a transcript of the video created a hostile work environment.

1st Circuit: No Qualified Immunity In Establishment Clause Suit Against Puerto Rico Police Officials

In Marrero-Mendez v. Calixto-Rodriguez, (1st Cir., July 19, 2016), the U.S. 1st Circuit Court of Appeals agreed with a Puerto Rico federal district court that Puerto Rico police officials could not claim qualified immunity in a suit against them challenging opening of police formation meetings with Christian prayer. When plaintiff, an open atheist, complained to his commander about the prayers, the commander told him to stand aside, and shouted to the police formation that plaintiff was standing apart because "he doesn't believe in what we believe in." When plaintiff filed an administrative complaint, he was reassigned to duties that effectively demoted him.  The court concluded:

However complex the nuances of the Establishment Clause doctrine may be for cases without the direct coercion present in this case, a reasonable officer in March 2012 would have known that appellants' conduct amounted to direct and tangible coercion, a paradigmatic example of an impermissible establishment of religion.

Judge Censured For Pressuring Staff To Engage In Prayer and Religious Activity

The ABA Journal reported yesterday on a decision last month by the State of New York Commission on Judicial Conduct censuring Bronx County Judge Mary Brigantti-Hughes for repeatedly using her court staff to perform child care and personal tasks and for asking her staff to pray with her in chambers, attend religious events outside regular working hours and photocopy religious materials. In In re Proceeding in Relation to Mary Brigantti-Hughes, (Dec. 17, 2013), the Commission held that the judge's activities went beyond merely using empty court space during the lunch hour for Bible study or religious meetings that had been approved by the Office of Court Administration. The Commission said:

repeatedly asking her staff to join her in [prayer] sessions misused the prestige of her judicial position, added an element of implicit coercion and crossed the line into impropriety.... Moreover, inviting members of her court staff to attend church-related events after court hours ... was also implicitly coercive.... By creating an environment in which some staff felt pressure to engage in religious activities, her actions impinged on the important separation between church and state, one of the most basic tenets of the federal and state constitutions.