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For advocates of workplace religious liberty, hope springs eternal
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

Like a hardy perennial, the Workplace Religious Freedom Act (WRFA) blooms in Congress every spring — only to wither and die when cold political reality sets in.

Right on cue, lead sponsors Sens. Rick Santorum, R-Pa., and John Kerry, D-Mass., reintroduced WRFA on March 17 — putting this legislation before Congress for a remarkable seventh consecutive session.

The ultra-conservative Santorum and the famously L-word Kerry are joined by a bipartisan list of strange bedfellows that includes everyone from Orrin Hatch, R-Utah, to Hillary Clinton, D-N.Y. And WRFA is endorsed by more than 40 religious groups — a mind-boggling coalition ranging from the Southern Baptist Convention to the North American Council for Muslim Women.

The common cause fueling WRFA is the battle against religious discrimination in the workplace. Kerry began pushing this bill years ago after he heard from “two Catholic ladies who lost their jobs because they couldn’t work on Christmas.”

Other senators cite similar stories — and hundreds of complaints about discrimination received each year by the Equal Employment Opportunity Commission. Sikhs and Muslims are told to remove their head-coverings (especially post-9/11). Seventh-day Adventists are sometimes fired or disciplined because they can’t work on Saturday. The list goes on to include workers of many other faiths.

Beyond headgear and holy days, religious workers sometimes need accommodation for other claims of conscience: A Christian lawyer who asks not to work on tobacco litigation; a Quaker who requests a transfer to a division that doesn’t work on armaments; an Orthodox Jewish woman who requests permission not to shake the hands of male customers.

Under the Civil Rights Act of 1964 (as amended in 1972), employers are supposed to “reasonably accommodate” these requests — unless doing so would cause undue hardship. Unfortunately, the courts have interpreted this to mean that even a minimal cost or difficulty can be considered “undue hardship.” As a result, many employers make little or no effort to accommodate religious workers.

WRFA would strengthen the current standard, requiring employers to accommodate unless doing so would involve “significant difficulty or expense.” According to Santorum, the bill would help ensure that workers aren’t forced “to choose between dedication to the principles of their faith and losing their job because their employers refuse to accommodate certain needs.”

If the need is so clear — and the support so broad — why does Congress fail to act on WRFA year after year? Because, just as left-right voices speak for the bill, left-right voices also speak against it.

Conservatives hear opposition from business interests worried that accommodation would mean higher costs and administrative burdens. WRFA proponents acknowledge that the bill may require some extra effort by employers, but point out that nothing in WRFA would lead to excessive hardship or expense for business owners. On the contrary, they argue, more sensitivity to the religious requirements of workers can go a long way in creating a more committed and productive workforce.

Liberals are nervous about opposition from the American Civil Liberties Union and a few other civil rights groups. Although the ACLU would support a more limited bill (targeting the most frequent requests for accommodation such as dress and time off), the civil liberties group contends that the current version would harm “personal and civil rights of coworkers, customers, or patients.”

Harm how? First, the ACLU warns that WRFA might protect workers who proselytize in the workplace in ways that coworkers or customers experience as harassment. WRFA supporters respond that this concern is misplaced. Since courts now regard harassment as a significant hardship, “employers will continue to win harassment cases post-WRFA as handily as they have won them until now,” according to a statement released by religious groups endorsing WRFA.

And second, the ACLU is concerned that WRFA would make it possible for workers to opt out of essential functions of their jobs on grounds of conscience. A police officer, for example, might be permitted to refuse to guard an abortion clinic.

The WRFA coalition acknowledges that under WRFA, the police officer could request reassignment. The employer might have to accommodate, but only if by so doing it did not incur a significant burden. If accommodation isn’t feasible, the officer must still carry out his or her duties. Either way, the coalition argues, the clinic wouldn’t be left unguarded.

As it happens, New York State has had a WRFA-like law since 2002 — without the dire consequences predicted by the ACLU. According to New York Attorney General Eliot Spitzer (writing in The Forward last year): “New York’s law has not resulted in the infringement of the rights of others … . Nor has it been burdensome on business. Rather, it strikes the correct balance between accommodating individual liberty and the needs of businesses and the delivery of services. So does WRFA.”

With endorsements like this, WRFA supporters are optimistic that this may finally be their year. But they’ve thought so before — only to be disappointed by the repeated failure of Congress to act.

If more Americans knew about WRFA, public opinion would likely pressure Congress to pass the bill. After all, in a nation founded on freedom of conscience, should people be forced to choose between career and Creator?


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Workplace religious liberty

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