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TESTIMONY OF RICHARD T. FOLTIN
LEGISLATIVE DIRECTOR AND COUNSEL
OFFICE OF GOVERNMENT AND INTERNATIONAL AFFAIRS
THE AMERICAN JEWISH COMMITTEE
HEARING OF THE
HOUSE EDUCATION AND THE WORKFORCE
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
ON
THE WORKPLACE RELIGIOUS FREEDOM ACT
(H.R.1445)
NOVEMBER 10, 2005
Mr. Chairman, thank you for this opportunity to testify before the House
Education and the Workforce Subcommittee on Employer-Employee Relations on
the Workplace Religious Freedom Act, important civil rights legislation
introduced as H.R.1445 by Representatives Mark Souder and Carolyn
McCarthy.
And thank you, as well, Representatives Souder and McCarthy, for bringing
this crucial religious liberty and antidiscrimination legislation to the
fore. Your bipartisan effort sends exactly the right signal—that the
effort to safeguard religious liberty and fight against religious
discrimination is one that should, and must, bring together Americans from
a broad range of political and religious persuasions.
My name is Richard T. Foltin. I serve as Legislative Director and Counsel
in the Office of Government and International Affairs of the American
Jewish Committee. The American Jewish Committee was founded in 1906 with a
mandate to protect the civil and religious rights of Jews. Through the
years, AJC has been a vigorous proponent of the free exercise of religion,
not only for Jews, but for people of all faiths.
I also have the privilege of serving as co-chairman—together with James
Standish, legislative director of the General Conference of Seventh-day
Adventists—of the Coalition for Religious Freedom in the Workplace. This
broad coalition of over forty religious groups—spanning the political
spectrum and reflecting the robust diversity of American religious
life—has come together to promote the passage of legislation to strengthen
the religious accommodation provisions of Title VII of the Civil Rights
Act of 1964. A list of the organizations comprising the coalition is
appended to my testimony.
Current civil rights law defines the refusal of an employer to reasonably
accommodate an employee's religious practice, unless such accommodation
would impose an undue hardship on the employer, as a form of religious
discrimination. But this standard has been interpreted by the courts in a
fashion that places little restraint on an employer's ability to refuse to
provide religious accommodation, needlessly forcing upon religiously
observant employees a conflict between the dictates of religious
conscience and the requirements of the workplace.
The Workplace Religious Freedom Act (WRFA) will promote the cause of
protection of the free exercise of religion just as have two other
bipartisan initiatives, the Religious Freedom Restoration Act (RFRA) and
the Religious Land Use and Institutionalized Persons Act (RLUIPA), enacted
into law in 1993 and 2000, respectively. WRFA is a similar response to the
failure of the Supreme Court, and of lower courts following the high
court's lead, to give due regard to the importance of accommodation of
religious practice in a heterogeneous society. However, as I discuss
further below, the Workplace Religious Freedom Act is clearly
distinguishable in terms of the issues that led the Supreme Court to
strike down RFRA, as applied to state and local governments, as
unconstitutional.
The Need for WRFA
Why is the Workplace Religious Freedom Act necessary? After all, in 1972
the U.S. Congress amended the Civil Rights Act of 1964 so as to define as
a form of religious discrimination the failure of an employer to
reasonably accommodate an employee's religious observance unless such
accommodation would impose an undue hardship on the employer's business.
In so doing, Congress properly recognized that the arbitrary refusal of an
employer to accommodate an employee's religious practice is nothing more
than a form of discrimination. Unfortunately, this standard, set forth in
section 701(j) of Title VII (42 U.S.C. section 2000e(j)), although
appropriate on its face, has been interpreted by the Supreme Court and
lower courts in a fashion that makes it exceedingly difficult to enforce
an employer's obligation to provide religious accommodation.
The constricted reading of section 701(j) is no small matter. RFRA and
RLUIPA were enacted by Congress in order to extend important protections
to all Americans from undue government encroachment on their religious
liberties. But for many religiously observant Americans the greatest peril
to their ability to carry out their religious faiths, on a day-to-day
basis, may come in the workplace.
Of course, many employers recognize that both they and their employees
benefit when they mutually work together to find a fit between the needs
of the workplace and the religious obligations of the employee. But it is
not always so. In too many cases, employees who want to do a good job are
faced with employers who will not make reasonable accommodation for
observance of the Sabbath and other holy days. Or employers who refuse to
make a reasonable accommodation to employees who must wear
religiously-required garb, such as a yarmulke, a turban or clothing that
meets modesty requirements. And the issues of holy day observance and
religious garb, while accounting for a substantial portion of religious
accommodation cases, far from exhaust the situations in which an employee
is faced with an untenable choice because of an employer's failure to
provide a reasonable accommodation.
Based on figures released by the Equal Employment Opportunity Commission,
the number of claims of religious discrimination in the workplace filed
for the fiscal year ending on September 30, 2004, as compared to the
fiscal year ending on September 30, 1992, reflect a staggering increase of
over 75 percent. During the same period, by comparison, claims involving
racial discrimination declined slightly.
Behind the filing of each claim is the story of an American forced to
choose between his or her livelihood and faith. Frequently, those who put
their faith first suffer catastrophic losses, including their homes, their
health insurance, their ability to help their children through college,
and, in some particularly sad situations, their marriages. Where employers
have no good reason for refusing to make religious accommodation,
Americans should not face such a harsh choice.
One of the contributing factors to this dramatic rise in claims is the
weakness of the accommodation provisions as currently written. Under
current law, there is little incentive for recalcitrant employers to
accommodate the religious beliefs of their employees. This does not deter
people of faith in the workplace from asserting their rights, however,
because many of them are unwilling to compromise their conscience no
matter what the legal ramifications might be.
But there are other factors behind the increase in religious
discrimination claims as well. These include the movement toward a
twenty-four-hours-a-day/seven-days-a-week economy, with consequent
conflict with religious demands for rest and worship on Saturdays,
Sundays, or holidays; our nation’s increasing diversity, marked by a broad
spectrum of religious traditions, some of which may clash with workplace
parameters that do not take into account the religious observances of
immigrant communities; latent animosity toward some religious traditions
after the September 11 attacks, a phenomenon evidenced by a particularly
severe spike in religious claims after the attacks, when Sikh and Muslim
Americans faced greater hostility at work; and a growing emphasis on
material values at the expense of spiritual ones, with some employers
refusing to see any adjustment in workplace requirements to allow for
religious practices.
To be sure, EEOC data also suggests that in recent years that agency has
evidenced a commendable increase in its bringing of religious
discrimination cases, including cases premised on an employer’s failure to
provide an appropriate accommodation of religious practice. But the EEOC’s
ability to bring those cases successfully is necessarily limited by the
strength of the underlying law. And the claims brought before the EEOC are
but the tip of the iceberg. Many such claims go through local or state
processes instead. And we will never know of the many people who do not
bring claims having been advised, whether by an enforcement agency or by
private counsel, that the present law leaves them with no—or a vanishingly
small chance of—recourse… and, therefore, to the choice of violating a
religious precept or giving up a source of livelihood.
Hardison and Its Progeny
The seminal Supreme Court case in this area is Trans World Airlines v.
Hardison, 432 U.S. 63 (1977). Larry Hardison was a member of a seventh-day
denomination, the Worldwide Church of God, who was discharged by Trans
World Airlines because he refused to work on Saturdays in his position as
a clerk at an airline-maintenance facility that required staffing 24 hours
per day, 365 days per year. The U.S. Court of Appeals for the Eighth
Circuit ruled that TWA had not provided an adequate religious
accommodation. TWA, joined by the employees' collective-bargaining
representative, filed an appeal with the Supreme Court contending "that
adequate steps had been taken to accommodate Hardison's religious
observances and that to construe the statute to require further efforts at
accommodation would create an establishment of religion contrary to the
First Amendment of the Constitution." The Court did not reach the
constitutional question; it determined, instead—in a 7-2 decision—that
anything more than a de minimis cost to an employer would be an “undue
hardship” for purposes of section 701(j), and found that the proposed
accommodations would have imposed such a cost. The Court also found that
TWA had made reasonable efforts at accommodation.
Hardison had proposed several proposed accommodations to his employer, two
of which were found by the Court of Appeals for the Eighth Circuit to be
reasonable: “TWA would suffer no undue hardship if it were required to
replace Hardison either with supervisory personnel or with qualified
personnel from other departments. Alternatively,... TWA could have
replaced Hardison on his Saturday shift with other available employees
through the payment of premium wages.” 432 U.S. at 84. But the high court
rejected “[b]oth of these alternatives [because they] would involve costs
to TWA, either in the form of lost efficiency in other jobs or higher
wages. To require more than a de minimis cost in order to give Hardison
Saturdays off is an undue hardship.” 432 U.S. at 84.
Although Justice Marshall's dissent in Hardison, joined by Justice William
Brennan, argues that Trans World Airlines had not satisfied its obligation
to reasonably accommodate even under the “more than a de minimis cost”
definition of “undue hardship,” its more crucial point is that the Court's
reading of section 701(j) reflects a determination by the Court that the
Congress, in providing in the Civil Rights Act that an employer must make
reasonable accommodation for religious practice, did “not really mean what
it [said].” 432 U.S. at 86, 87. Justice Marshall went on to state:
An employer, the Court concludes, need not grant even the most minor
special privilege to religious observers to enable them to follow their
faith. As a question of social policy, this result is deeply troubling,
for a society that truly values religious pluralism cannot compel
adherents of minority religions to make the cruel choice of surrendering
their religion or their job. And as a matter of law today's result is
intolerable, for the Court adopts the very position that Congress
expressly rejected in 1972, as if we were free to disregard congressional
choices that a majority of this Court thinks unwise.
432 U.S. at 87. In other words, the Court's reading of section 701(j), in
particular the de minimis interpretation of “undue burden,” so vitiates
the obligation to reasonably accommodate as to result in “effectively
nullifying it.” 432 U.S. at 89.
The history of religious accommodation litigation since 1977 bears out
this vision. It would be an overstatement to say that employees seeking a
reasonable accommodation of their religious practices never prevail in
court, to say nothing of the many whose cases we never hear about because
they and their employers work out an accommodation amicably. But a brief
overview demonstrates that for the most part, to borrow the title of one
law review article on the subject, “heaven can wait.”
Thus, one might expect a “reasonable accommodation” to be one that
actually removes the conflict with religious practice, with employers then
required to show an “undue hardship” before being relieved of the
obligation to provide such an accommodation. To be sure, courts have in
some instances interpreted the requirement of reasonable accommodation to
mean just that. See Shelton v. University of Medicine & Dentistry of New
Jersey, 223 F.3d 220, 226 (3d Cir. 2000). Nevertheless, there have also
been disturbing cases in which courts have suggested—beginning with
Hardison—that employees' rights under collective bargaining agreements or
other “neutral” shift-allocation procedures are, in of themselves,
reasonable accommodations even when those agreements make absolutely no
provision for employee religious practices that may come into conflict
with the requirements of the workplace.
It is in the application of the Hardison Court's interpretation of “undue
hardship” that religiously observant employees have most often come to
grief. The absence of nontrivial economic cost to employers has not
prevented the courts from finding, on the basis of quite dubious
rationales, that the provision of a reasonable accommodation will amount
to an undue hardship.
In one case, Mohan Singh—a Sikh forbidden by his religious precepts from
shaving his facial hair except in medical emergencies—applied for the
position of manager at a restaurant where he was already employed, but he
was denied the position because he would not shave off his beard. When the
Equal Employment Opportunity Commission brought a religious discrimination
claim on Mr. Singh's behalf, a federal district court ruled that
“relaxation” of the restaurant's grooming standards would adversely affect
the restaurant's efforts to project a “clean-cut” image and would make it
more difficult for the restaurant to require that other employees adhere
to its facial hair policy. EEOC v. Sambo's of Georgia, 530 F. Supp. 86 (N.D.Ga.
1981).
Hardison also held that the existence of seniority provisions in a
collective bargaining agreement serves as a basis to find undue hardship
in the granting of an accommodation because, for instance, to allow the
employee his Sabbath off would be in derogation of the seniority rights of
another employee. But, all too often, this conclusion is reached without
further inquiry as to whether the bargaining representative might have
been enlisted in a search for voluntary swaps or whether an exemption
might be sought to provisions of the collective bargaining agreement that
seem to stand in the way of an amicable arrangement (i.e., an arrangement
that does not require a senior employee to give up his or her right not to
work on a particular day).
The Supreme Court's lead in restrictively reading section 701(j) has been
reflected in lower court rulings on other aspects of how that provision is
to be applied. In Brener v. Diagnostic Center Hospital, 671 F.2d 141 (5th
Cir. 1982), Marvin Brener, a hospital staff pharmacist and Orthodox Jew,
asked his supervisor to arrange his shift so that he would not have to
work on Saturday, his Sabbath, or on Jewish holidays, such as Rosh
Hashanah and Yom Kippur. Though granting the request at first, the
hospital eventually refused, arguing that accommodation of Mr. Brener's
religious practice posed a “morale problem” because other pharmacists were
complaining about this “preferential treatment.” Brener—scheduled to work
on a day that his faith forbade him to—was forced to resign. He sued, but
lost. In its ruling, a federal court of appeals held that it is the
employee's, rather than the employer's, duty to arrange job swaps with
other employees to avoid conflict with religious observance. But an
employer's inquiry is far more likely to be given serious consideration by
fellow workers. Further, the employer is better situated to know which of
the other employees is likely to be receptive to a request to adjust
schedules. Conversely, once the employer appears indifferent to the
request for accommodation, other employees may be less likely to
cooperate. In short, placing the onus for arranging job swaps on an
employee works to discourage that employee from seeking to avoid
discrimination.
In another case, Ansonia Board of Education v. Philbrook, 479 U.S. 60
(1986), the Supreme Court found that "any reasonable accommodation by the
employer is sufficient to meet the obligation to accommodate" and that the
employer could refuse alternatives that were less onerous to the employee,
but still reasonable. But even if the employer is left the discretion to
choose the reasonable accommodation most appropriate from its perspective,
two principles should apply—first, the accommodation should actually
remove the conflict (which was the case in Philbrook but not, as has been
noted above, in other cases), and, second, an accommodation should not
treat a religious practice less favorably than other, secular practices
that are accommodated.
The Workplace Religious Freedom Act
The constrictive readings of section 701(j) discussed above are
inconsistent with the principle that religious discrimination should be
treated fully as seriously as any other form of discrimination. The civil
rights of religious minorities should be protected by interpreting the
religious accommodation provision of Title VII in a fashion consistent
with other protections against discrimination to be found elsewhere in
this nation's civil-rights laws. Since the problems in this area turn on
judicial interpretation of legislation, rather than constitutional
doctrine, they are susceptible to correction by the U.S. Congress. That is
what the Workplace Religious Freedom Act is intended to do.
Instead of the "not more than de minimis" standard, WRFA would define
"undue hardship" as an "an action requiring "significant difficulty or
expense" and would require that, to be considered an undue hardship, the
cost of accommodation must be quantified and considered in relation to the
size of the employer. In this respect, it would resemble (although not be
identical with) the definition of "undue hardship" set forth in the
Americans with Disabilities Act. The ADA presents, in fact, an apt analogy
to the provisions of Section 701(j). As it later did for Americans with
disabilities, the U.S. Congress determined in enacting Section 701(j) that
the special situation of religiously observant employees requires
accommodation so that those employees would not be deprived of equal
employment opportunities.
Crucially, WRFA would require that to qualify as a reasonable
accommodation an arrangement must actually remove the conflict. This would
put to rest the notion that a collective bargaining agreement or any other
neutral arrangement, or an "attempt to accommodate," that fails to
accommodate a religious practice might itself be viewed as a "reasonable
accommodation." The accommodation might, of course, constitute an undue
hardship, but a vitiated definition of reasonable accommodation should not
be utilized to avoid engaging in undue hardship analysis.
WRFA would also make clear that the employer has an affirmative and
ongoing obligation to reasonably accommodate an employee's religious
practice and observance. This provision does not in of itself alter the
standard for what is a reasonable accommodation or an undue hardship. It
does, however, require that all to whom section 701(j) applies bear the
responsibility to make actual, palpable efforts to arrive at an
accommodation.
On the specific issue of collective bargaining arrangements, nothing in
the bill purports to override section 703(h) of Title VII (42 U.S.C.
section 2000e-2(h)), a provision included in Title VII to make clear that
"the routine application of a bona fide seniority system [i.e., without
intention to discriminate because of race, color, religion, sex, or
national origin] would not be unlawful under Title VII." Teamsters v.
United States, 431 U.S. 324 (1977). It would, however, encourage
religiously observant employees and their employers, and a collective
bargaining representative where applicable, to seek amicable arrangements
within the context of an existing seniority system, perhaps through
voluntary shift swaps or modifications of work hours.
WRFA also explicitly puts to rest any suggestion in the Philbrook case
that it is appropriate to forbid the use of personal leave time for
religious purposes when that leave is available for other, secular
purposes.
Finally, in order to address concerns raised by business interests, WRFA—tracking
an element of the Americans with Disabilities Act—would add to existing
religious accommodation law, with certain clarifying language, a provision
that an employer need not provide a reasonable accommodation if, as a
result of the accommodation, the employee will not be able to fulfill the
“essential functions” of the job. Once it is shown that an employee cannot
fulfill these functions, the employer is under no obligation to show that
he or she would incur an undue hardship were a reasonable accommodation to
be afforded.
Concerns about Impact on Business
As was just referenced, there have been concerns raised WRFA will impose
an unmanageable burden on employers. But the concept of religious
accommodation is not, as we have seen, a new one under federal civil
rights law. And, as under the current interpretation of Title VII, WRFA
does not give employees a “blank check” to demand any accommodation in the
name of religion and receive it. Rather, it restores the protection
Congress intended for religious employees in enacting the 1972 amendment
by adjusting the applicable balancing test in a fashion that still gives
substantial regard to the legitimate needs of business standard even as it
somewhat levels the field for an employee in need of accommodation.
In this regard, it is well to note that, as an amendment to Title VII and
therefore subject to its restrictions, WRFA does not apply to employers of
less than 15 full time employees. Moreover, the factors that it sets forth
for determining what is an “undue hardship” are designed to make the
determination context specific so that a relatively small employer – of,
say, 100 employees, might well not have to provide an accommodation where
a larger employer of 1,000 would have to do so.
It is commonly argued that fakers will seek illegitimate accommodations
based on fraudulent beliefs. But the fact is that courts have for decades
engaged in assessing the sincerity of asserted religious beliefs. Indeed,
under the Supreme Court's 1965 decision in United States v. Seeger, 380
U.S. 163 (1965), the threshold question of sincerity as to religious
belief must be resolved as a question of fact. In practical terms, the
problem of insincerity in the realm of religious accommodation in the
workplace is particularly small. People who do not have a genuine and
sincere reason to ask for an accommodation are simply unlikely to risk
employer displeasure and social stigma by doing so. In addition, religious
accommodation cases are almost always brought after a worker has been
fired. Given the economic disincentive to bring such suits, it would be
odd indeed for an individual to be fired and then spend financial
resources to vindicate a religious belief she doesn't sincerely hold.
Historical precedent indicates that bogus claims are much more prominent
in the minds of WRFA opponents than in reality. New York State has had a
holy-day accommodation law for many years, yet there is no record of
people bringing cases for failure to honor their "Church of the Super
Bowl" or "Mosque of the Long Weekend." For that matter, there has been no
epidemic of these fanciful claims under existing federal religious
accommodation law.
Concerns about Impact on Third Parties
Another set of concerns has been raised that implementation of WRFA will
lead to material adverse impacts on third parties. These concerns arise
primarily in the context of two types of hypothetical situations—that WRFA
will be used to protect those who would cite religious beliefs as a
justification for harassing gays in the workplace, and that WRFA will be
used to limit access to reproductive healthcare. These concerns are based
on an unreasonable and untenable reading of the proposed law under which
claims for accommodations that would have material adverse impact on third
parties that have, until now, lost virtually without exception, might have
different results should WRFA be passed. As an organization that supports
both reproductive rights and measures to protect against discrimination on
the basis of sexual orientation, the American Jewish Committee would not
be supporting WRFA if we thought that it would lead to such baleful
results.
A central component of WRFA, as is the case under current accommodation
law, is its balancing test, albeit with a modification of the operative
definitions of “reasonable accommodation” and “undue hardship.” Nothing in
that change in definition will alter the fact that courts are quick to
recognize that workplace harassment imposes a significant hardship on
employers in various ways: Permitting harassment to proceed unchecked
opens the employer up to lawsuits based on the employer maintaining a
hostile work environment; the loss of productivity and collegiality caused
by attacks on colleagues constitutes a significant burden; and the cost of
recruiting and hiring new employees to replace those who leave due to
harassment also meets the significant burden test.
Thus, in Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996),
an appellate court dismissed the religious accommodation claim brought by
an employer who was fired for writing accusatory letters to co-employees.
The court reasoned, “where an employee contends that she has a religious
need to impose personally and directly on fellow employees, invading their
privacy and criticizing their personal lives, the employer is placed
between a rock and a hard place. If [the employer] had the power to
authorize [the plaintiff] to write the letters, the company would subject
itself to possible suits from [other employees] claiming that [the
plaintiff’s] conduct violated their religious freedoms or constituted
religious harassment.” As in Peterson, the court considered the
proposition that the plaintiff’s conduct constituted an undue hardship to
be self-evident, and did not find it necessary to analyze the claim in
terms of the de minimis standard.
Similarly, in the only reported Title VII religious accommodation case of
which I know involving harassment of gays in the workplace, a court of
appeals unequivocally decided in January of 2004 that Title VII provides
no protection for the harasser. In that case, a Christian employee was
fired when he refuse to remove form his cubicle a quote from the Bible
condemning homosexuality. Both the lower court and the appeals court had
no problem at all finding against the plaintiff on the Title VII claim he
brought for failure to provide a religious accommodation. The Ninth
Circuit did not discuss the standard the employer had to meet, but rather
focused on the burden on fellow employees, finding, in effect, that
religious beliefs cannot insulate actions that demean or degrade other
employees. Peterson v. Hewlett-Packard, 358 F.3d 599 (9th Cir. 2004).
There is nothing in WRFA that would change this analysis.
.
It is also significant that there is only one reported Title VII religious
accommodation case involving the issue of harassment of gays in the
workplace. While it is true that reported cases are a fraction of all
cases brought, and that cases brought are a fraction of all complaints,
nevertheless, it is illustrative that attempts to use Title VII to protect
those involved in harassment of gays in the workplace are exceedingly
rare.
Concerns have also been raised that WRFA would permit an emergency-room
nurse to walk away from a woman in need of an emergency abortion on the
grounds that the nurse’s participation in the procedure would violate his
or her religious precepts—as if any court hearing a case brought by the
nurse against an employer for unfair dismissal would likely find that it
is not a significant burden on the hospital when its employees refuse to
treat patients in need of emergent care. If employees leaving patients
suffering isn’t a significant burden on a hospital, one is forced to ask,
what is? If facing significant malpractice liability from the patient for
substandard care isn’t a significant burden, what is? If risking the
hospital’s accreditation isn’t a significant burden, what would be?
The same analysis plays out in the context of the claim that WRFA would
permit policemen to refuse to guard abortion clinics. If a policeman had a
religious objection to guarding an abortion clinic, he could, under WRFA,
ask to be reassigned. His employer would be required to facilitate such a
reassignment, but only if by so doing it did not incur a significant
burden. Sometimes accommodation would simply not be practicable. Does this
mean that the abortion clinic would remain unguarded? No. In such
circumstances the policeman would have to accept his assignment or accept
the consequences of disobeying an order. Nothing in WRFA comes close to
leaving abortion clinics exposed.
And, finally, it is claimed that WRFA would somehow empower pharmaceutical
employees to refuse to fill prescriptions for birth control medication or
for emergency contraception, even at the cost of the patient’s
prescription not being filled at all. Last year, this concern was raised
in the context of a case in which a CVS pharmaceutical employee refused to
fill a prescription for birth control pills because the pharmacist did not
“believe” in birth control. After some initial confusion, CVS confirmed
that the refusal was not in line with company policy, which requires that
a pharmacist who refuses to dispense medication based on personal ideology
must make sure that the patient’s prescription is filled anyway, either by
another pharmacist at that location or by another pharmacy in the area. In
a similar vein, an Eckerd pharmacy fired a pharmacist who refused to fill
a rape victim’s prescription for emergency contraception.
As with existing Title VII provisions, WRFA provides a floor in terms of
the extent to which an employer must accommodate an employee’s religious
practice, not a ceiling. Thus, WRFA has no role to play as to whether a
pharmacy will require—as CVS and Eckerd do—that prescriptions be filled,
regardless of an employee’s personal beliefs. But, crucially, as in the
context of abortion services, once a pharmacy does have such a policy, any
fair reading of the “undue hardship” standard must lead to the conclusion
that an employee fired for not filling the prescription would not be
sustained under WRFA. Quite the opposite, given the impact on a customer
whose prescription is not filled, this would constitute a palpable
significant difficulty or expense.
In sum, the courts clearly take impact on third parties very seriously as
an element of undue hardship and, again and again, their analysis does not
turn on the de minimis standard. Indeed, the cases cited by opponents of
WRFA often turn on aspects that have nothing to do with the “undue
hardship” standard at all. Moreover, the assertion that baleful results
will flow from strengthening federal protections against religious
discrimination are also without basis in the
experience of prior efforts to enhance antidiscrimination law.
Thus, the suggestion that Congress should not pass WRFA because it will
open the door to harassment and denial of essential medical treatment
places a fanciful swatting at phantoms over the very real need to remedy
the harm faced by religiously observant employees every day.
Why the “Targeted” Approach Will Not Work
It has been suggested that the way to deal with these concerns is to
resort to a so-called “targeted” approach, under which Congress would
single out particular religious practices—dress, grooming, holy days—f or
protection under the WRFA standard. But the “targeted” approach embraces a
troubling notion—that certain religious practices are simply not worthy of
even a day in court to establish whether accommodation of those practices
can be afforded without significant difficulty or expense for the employer
or third parties. Again, the AJC—joined by many of the organizations
supporting WRFA—is committed to combating discrimination on the basis of
sexual orientation and to reproductive rights. But we are also committed
to a fundamental premise of our Constitution and our society, that it is
not up to the government to prescribe orthodoxies of belief or practice,
and that the religious beliefs and practices of those with whom we
disagree on these (and other) fundamental matters should be accommodated
if this can be done without harm to others.
Moreover, under the “targeted” approach as many as 25% of accommodation
claims would be consigned by a Faustian bargain to the old, inadequate
standard—all in order to ensure that a subset of those claims with little
chance of success are eliminated from a miniscule improved chance of
success.
Claims that would be eliminated from coverage a targeted application of
the WRFA standard include:
• Jehovah’s Witness employees who request to opt out of raising the flag
and pledging allegiance at work;
• A Methodist attorney who requests accommodation not to work on tobacco
litigation;
• A Quaker (Society of Friends) employee who requests to be transferred to
a division that does not work on armaments;
• An Orthodox Jewish woman who requests permission not to shake the hands
of male customers;
• A Hindu employee who requests permission not to greet guests with the
phrase “Merry Christmas;”
• A Christian employee who requests to be assigned to work that does not
involve embryonic research;
• A Muslim hospital employee who requests to be exempted from duty in
which she would be present when a member of the opposite sex is unclothed.
While these examples provide an overview of some of the types of cases
that would be omitted from coverage by WRFA were the targeted approach
adopted, it is by no means designed to give the totality of cases. Indeed,
the variety of religious beliefs is one of the factors that make our
nation such a fascinating place to live. In addition, there are numerous
relatively new religious groups in the United States. Many of these groups
are relatively small and some are primarily made up of immigrants. As a
result, they often are unaware of their rights under current law, and
frequently do not have the resources to vindicate their rights in the
courts. Thus, the reported cases almost certainly undercount the claims
from these groups. To agree to a targeted bill is to agree to a lower
protection for these groups without their having any input in the
decision.
WRFA provides that when it can be shown that accommodating a person of
faith in the workplace proves significantly difficult or expensive, the
accommodation need not be provided. Whether that difficulty arises due to
disharmony caused by a religious employee harassing another employee, when
an employee refuses to provide medical care when no reasonable
accommodation can be made, or whether the accommodation of the religious
employee would result in disfavoring fellow employees or other third
parties in a host of other ways, the balancing test provides assurance
that religious employees will not trample the rights of others in the
workplace.
Constitutional Issues
Amendment of the law so as to provide a reading of Section 701(j) that
affords meaningful protections for religiously observant employees is
consistent with the Establishment Clause's requirement that government
action not favor one religion over another, or religion over non-religion.
It has been suggested by some commentators that the reading of "undue
hardship" to mean not more than de minimis difficulty or expense was
necessary to avoid a reading of the accommodation provision that would
have caused it to run afoul of the Establishment Clause. Although not
explicitly invoking the Establishment Clause, Justice White—writing for
the Court in Hardison—asserted that any construction of Title VII that was
more protective of religious practice would mean that employees would be
treated not on a nondiscriminatory basis but unequally on the basis of
their religion. "...[T]he privilege of having Saturdays off would be
allocated according to religious belief," he said in writing for the
Court, "Title VII does not contemplate such unequal treatment."
But Justice Marshall's dissent in Hardison, joined by Justice Brennan, saw
no constitutional problem in requiring employers "to grant privileges to
religious observers as part of the accommodation process." Justice
Marshall went on, "If the State does not establish religion over
nonreligion by excusing religious practitioners from obligations owed the
State, I do not see how the State can be said to establish religion by
requiring employers to do the same with respect to obligations owed the
employer." 432 U.S. at 91. He added in a footnote:
The purpose and primary effect of requiring such exemptions is the wholly
secular one of securing equal economic opportunity to members of minority
religions.... And the mere fact that the law sometimes requires special
treatment of religious practitioners does not present the dangers of
"sponsorship, financial support, and active involvement of the sovereign
in religious activity," against which the Establishment Clause is
principally aimed.
432 U.S. at 90-91, fn. 4. As we all know, Justices Marshall and Brennan
were both resolute supporters of a strict reading of the Establishment
Clause. Thus, it is particularly compelling that neither believed that the
Constitution required a weak reading of section 701(j).
The case of Estate of Thornton v. Caldor, 472 U.S. 703 (1985), is
distinguishable. In that case the Supreme Court struck down by a vote of
8-1, as a violation of the Establishment Clause, a Connecticut statute
that gave employees the absolute right not to work on their respective
Sabbaths. Writing for the Court, Chief Justice Burger said the state law
imposed an excessive burden on employers, as well as on non-religious
employees who also had "strong and legitimate" reasons for wanting to
avoid having to work on the weekend. 472 U.S. at 710, fn.9. The opinion of
the Chief Justice did not, however, address the question of the
constitutionality of a less absolute approach to the issue of employee
Sabbath observance.
In a concurring opinion, joined by Justice Marshall, Justice O'Connor
agreed with the Court's decision, but stated also that "the Connecticut
Sabbath law has an impermissible effect because it conveys a message of
endorsement of Sabbath observance." She went on to note that "the statute
singles out Sabbath observers for special and, as the Court concludes,
absolute protection without according similar accommodation to ethical and
religious beliefs and practices of other private employees." 472 U.S. at
711 (O'Connor, J., concurring). Hence, in her view, the statute advanced
religion in violation of the Establishment Clause. Importantly, Justice
O'Connor distinguished the Connecticut statute from the religious
accommodation provision of Title VII:
...a statute outlawing employment discrimination based on race, color,
religion, sex, or national origin has the valid secular purpose of
assuring employment opportunity to all groups in our pluralistic
society.... Since Title VII calls for reasonable rather than absolute
accommodation and extends that requirement to all religious beliefs and
practices rather than protecting only ... Sabbath observance, I believe
that an objective observer would perceive it as an anti-discrimination law
rather than an endorsement of religion or a particular religious practice.
472 U.S. at 712.
Both prior to and subsequent to Thornton, a number of federal appellate
courts have held the reasonable accommodation provisions of section 701(j)
to be constitutional, reasoning that, under the tripartite analysis of
Lemon v. Kurtzman, 403 U.S. 672 (1971), the requirement had a secular
purpose (the elimination of religious workplace discrimination); a primary
effect that neither advances nor prohibits religion; and does not lead to
excessive government entanglement with religion. See, e.g., EEOC v. Ithaca
Industries, Inc., 849 F. 2d 116 (4th Cir.), cert. denied, 488 U.S. 924
(1988); McDaniel v. Essex International, Inc., 696 F.2d 34 (6th Cir.
1982).
Left unaddressed by the courts, except for the views expressed by Justices
Marshall and Brennan in their dissent in Hardison, is whether a standard
more protective of religious observance than de minimis but not absolute,
as was the Connecticut statute struck down in Thornton, would survive
Establishment Clause scrutiny. In our view, it would. Turning to the Lemon
tripartite analysis, easing of the undue hardship standard (and, indeed,
the other aspects of the bill), so as to afford greater protection for
employees serves the secular purpose of combating discrimination.
Moreover, the parallels between WRFA and the Americans with Disabilities
Act—albeit their provisions are not identical—demonstrate that the
Congress will not be granting a religion a kind of protection not
available to secular interests. The primary effect prong appears satisfied
by the balancing of interests and non-absolute nature of the accommodation
reflected in the bill. Finally, the excessive entanglement prong has been
invoked by the courts only in cases involving government monitoring of
religious institutions that receive public funds.
An invalidation of WRFA on Establishment Clause grounds would be grounded
in paradox; it would be to say that an assuredly valid government purpose
of combating religious discrimination may be accomplished only by a
reading of section 701(j) so circumscribed as to fail to afford
religiously observant employees a genuine modicum of protection. Surely,
that cannot be the constitutionally mandated result.
The Supreme Court's rulings in United States v. Lopez, 115 S. Ct. 1624
(1995), and in City of Boerne v. Flores, 117 S. Ct. 2157 (1997), among
other decisions of the last decade striking down legislation enacted in
reliance upon the Commerce Clause and section 5 of the Fourteenth
Amendment, respectively, gives rise to an understandable concern as to the
prospects for WRFA should it be enacted.
Turning to the Boerne issue first, the Court went to significant lengths
in that case to distinguish its decision striking down the Religious
Freedom Restoration Act from earlier cases upholding the authority of the
Congress under section 5 to enact the voting rights laws. And section 5
has provided the basis for other congressional action to ensure uniform
federal protection of civil rights. To the extent the Civil Rights Act of
1964 is grounded in section 5 there is ample basis to find that the Act
affords remedies that strengthen and fortify existing rights. WRFA is
simply a clarification of terms from Title VII of the 1964 act, as
amended.
In addition, and crucially, the 1964 Civil Rights Act is founded in the
Commerce Clause. Commerce Clause legislation remains valid so long as
Congress has a rational basis for concluding that the regulated activity
"substantially affects" interstate commerce. United States v. Lopez, 115
S. Ct. at 1629. The prohibition on invidious discrimination in connection
with employment seems the sine qua non of legislation with respect to an
activity that "substantially affects" interstate commerce. See Heart of
Atlanta Motel v. United States, 379 U.S. 241 (1964) (upholding Title II of
the Civil Rights Act of 1964 and, by implication, the rest of the Act).
Conclusion
Enactment of the Workplace Religious Freedom Act will constitute an
important step towards ensuring that all members of society, whatever
their religious beliefs and practices, will be protected from an invidious
form of discrimination. The refusal of an employer, absent undue hardship,
to provide reasonable accommodation of a religious practice should be seen
as—and was intended by Congress in 1972 to be treated as—a form of
religious discrimination. And religious discrimination should be treated
fully as seriously as any other form of discrimination that stands between
Americans and equal employment opportunities.
In assuring that employers have a meaningful obligation to reasonably
accommodate their employees' religious practices, WRFA will restore to
Title VII's religious-accommodation provision the weight that Congress
originally intended. And, although necessarily framed as a strengthening
of the legal protection to be afforded religiously observant employees,
enactment of WRFA will, it is hoped, have a benefit that is not strictly
legal. It may cause employees and employers to start talking to each other
where they have not—employers may not think they now have to address
issues of accommodation because they believe the law is on their side, and
some employees may simply think they have no recourse. The true mark of
this bill's success, when it becomes law, will be if there is less, not
more, litigation over accommodation of religious practice.
We come to this hearing a scant two weeks after the final days of the
Jewish holiday of Succoth, the concluding festival of the holiday season
that includes the better known festivals of Rosh Hashanah and Yom Kippur.
During that holiday season there are a number of days on which work is
religiously proscribed. Too often a season that should be one of joy
becomes, for Jews who observe the proscription on work, a period of
anxiety and, sometimes, blighted careers as they face the possibility of
losing their livelihood for following the dictates of their faith.
Nearly thirty years ago, Justice Thurgood Marshall concluded his dissent
in Hardison by saying:
The ultimate tragedy [of this decision] is that despite Congress' best
efforts, one of this Nation's pillars of strength - our hospitality to
religious diversity - has been seriously eroded. All Americans will be a
little poorer until today's decision is erased.
432 U.S. at 97. Perhaps we will come to look back on the hearing held
today as the harbinger of the realization of Justice Marshall's hope—that
the civil rights laws of this great nation will give due regard to the
religious diversity that is one of its marks of pride. |