By ALISON GREEN on MARCH 13, 2023
A reader writes:

Unlike the bulk of your letters, I’m going to name my employer for two reasons: (1) I technically work for an elected official so it’s not a standard boss/employee relationship and (2) multiple reporters covered and recorded the behavior in question because these were public events. You can find it online everywhere.

I’m a state employee in Virginia, and I’m not appointed. Although I work at an agency, I am technically part of the executive branch, which means I work for Governor Glenn Youngkin. I am also an atheist.

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I’m pretty high up in my agency, which means I work directly with Governor Youngkin’s staff a lot on public events: speeches, ribbon cuttings, announcements, meetings, etc. During his speeches, he and his wife repeatedly mention their Christian faith, and they speak as though the entire audience is Christian as well.

Here’s what bothers me. One of Governor Youngkin’s habits is to open a public event or speech with a prayer (or a minister does it), heavily reference his relationship with Jesus Christ throughout his remarks, and request us to bow our heads and say “amen.” In one instance, he said all of us at a public meeting were “created in God’s image” and I was so uncomfortable and annoyed, but I hid my frustration. I refuse to bow my head or close my eyes or clasp my hands or say “amen” on command or applaud an anecdote about the power of believing in Jesus Christ. I merely stand or sit where I am and say nothing, looking off into the distance. Several days ago, my big boss (a Youngkin appointee) noticed that I wasn’t bowing my head during the opening prayer at a public event, and he gave me a puzzled look and then an eyebrow raise. Although I’m uncomfortable, I’ve never said anything nor drawn attention to myself. I doubt anyone else in my office knows how I feel. But…

There’s another event with the governor coming up, and my big boss said he wants to talk to me beforehand. (It might not be about my lack of participation.) I’d like to be prepared if he or anyone from the administration approaches me about my lack of participation in religious offerings. (My big boss is very concerned with appearances.) What are my rights? What can they legally ask me to do? How can I politely and professionally push back? Do I have to disclose that I’m an atheist? Can they forbid me from attending these events? (If they did, that’d be a huge blow to my career.) I checked my HR policy, but I can’t find anything specific to this scenario.

The other non-Christians in my office would like this information as well.

(To be clear, I don’t think Governor Youngkin is actively trying to convert people. I think he and his staff have been around people who believe exactly like them for so long that they don’t realize that employees of other faiths and no faiths exist as well.)

Youngkin is my governor too and it’s infuriating to watch what he’s doing in our state.

I asked employment lawyer Jon Hyman of Wickens Herzer Panza, who writes the incredibly useful Ohio Employer Law Blog and is the author of The Employer Bill of Rights: A Manager’s Guide to Workplace Law, to weigh in on this. Here’s what he said:

The workplace and religion do not mix, whether the workplace is public or private. An employer cannot force its employees to conform to, follow, or practice their employer’s chosen religious practices and beliefs. Anything different violates Title VII in either a public or private workplace. Moreover, in a government workplace there are additional First Amendment concerns. A state or local government does not violate the First Amendment by starting government meetings with a prayer, as the Supreme Court held in 2014 in Town of Greece v. Galloway. Still, there is a vast difference between holding a prayer and forcing participation in it, even nominally such a bowing one’s head or otherwise appearing to be reverent. The latter is unlawful (and in this case likely unconstitutional).

What that means in your case: You cannot be required to participate in prayer. You cannot be told to bow your head or say “amen.” You must be allowed to sit quietly and not participate, as you have been doing. They also cannot forbid you from attending public events or work events if you decline to perform religious observance in the way they want.

You do not need to disclose you are an atheist. You can disclose it, if you want to! But you’re entitled to keep that private too.

I asked Jon, “If the letter-writer’s boss does confront them about why they’re not bowing their head, etc. during prayer, do you have suggested wording to push back? I know they could just bluntly say that they can’t legally be required to participate — and that may be the way to go — but assuming they’re concerned about keeping things as harmonious as possible in their working relationships and since they appear to be dealing with zealots, would you advise any particular messaging? My first thought is to say something like, ‘Oh, I don’t participate in public prayers’ … and then only if pushed, ‘Legally, we can’t require that type of participation from employees.’” Jon replied:

If asked, it certainly puts the employee in a difficult spot. I like the idea of a softer approach first, something like, “My religion and spirituality is very personal to me, and I’d prefer to keep it out of the workplace.” If pushed, the employee could always fall back to legal argument, but at that point I feel like the relationship might be damaged to the point of irreparability.

I love the “my religion and spirituality is very personal to me, and I’d prefer to keep it out of the workplace” language if you’re comfortable saying it and would have that ready to go if you need it.

Jon also offered this advice to employers:

If you’re thinking of holding a prayer meeting, conducting spiritual discussions or rituals, or doing anything else remotely related to religion at your company, don’t. Religion has no place at work. Your employees have the unfettered right to practice the religion of their choice or not to practice any religion at all, and none of it is any of anyone else’s business.