Testimony of Samuel A. Marcosson
Associate Dean and Professor of Law
Louis D. Brandeis School of Law
University of Louisville

Before the Subcommittee on Employer-Employee Relations
Of the House Committee on Education and the Workforce

November 10, 2005

Chairman Johnson, Representative Kildee, I am Samuel Marcosson, Associate Dean for Student Life and Professor of Law at the University of Louisville’s Louis D. Brandeis School of Law. I am honored to be with you this morning as you consider H.R. 1445, the Workplace Religious Freedom Act. I teach a number of subjects relating to this bill, including Constitutional Law, Employment Discrimination, and Disability Law. I also spent eight years working in the Office of General Counsel at the Equal Employment Opportunity Commission, during which I litigated the appeals of a number of cases raising issues of religious discrimination and accommodation of religious beliefs.
My views on the WRFA begin with this premise: when government moves to compel employers to provide accommodations in the workplace for the religious beliefs and practices of their employees, it must walk a fine line between the laudable goal of removing the conflict that many Americans face between their faith and their work responsibilities, and favoring religion in a way that creates conflict and raises constitutional concerns. As written, the WRFA may tilt too far in the direction of accommodating religion in a way that favors religion, and at the expense of other workers. There are some changes I will suggest in my testimony that would help to resolve these concerns.
The Supreme Court’s decision in TWA v. Hardison, 432 U.S. 63 (1977), upheld Title VII’s requirement in § 701(j) that employers provide religious accommodations. But Hardison stressed the limitations built into the statutory requirement: the employer need not incur “undue hardship,” and any costs beyond de minimis expense would constitute undue hardship. The Court strongly implied that imposing any greater burden would raise substantial constitutional issues by favoring religion over non-religion.
That implication became a reality when the Court decided Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), and struck down a Connecticut law that gave employees an absolute right not to have to work on their Sabbath. Looked at together, Hardison and Caldor send a clear message: employers may be required to accommodate religious beliefs, but if legislation goes too far it will be struck down. There are several ways in which I fear the WRFA may cross the line.

The WRFA as a Non-Neutral Requirement
Courts may view the WRFA as more than a neutral non-discrimination requirement. The accommodation standard it contains in Section 2(a) is patterned after the provision in the Americans with Disabilities Act, because it relieves the employer of the obligation to accommodate only if it would incur “significant difficulty or expense.” This is the ADA’s definition of undue hardship as well.
The ADA’s accommodation provision has been understood universally as affording a right to people with disabilities that is not given to others. While this is not problematic in the disability context, it raises significant concerns when it comes to religion. The Supreme Court had made clear that government cannot disfavor religion, but it also cannot favor religion with special benefits. Unlike Title VII as currently written, the WRFA would probably confer such a benefit, because the employer would have to incur more than a de minimis cost to comply with the statute. Thus, the WRFA appears vulnerable to a challenge that it is non-neutral.
The WRFA can also be seen as non-neutral in another sense. Under current law, employers can control expression in the workplace if they regard certain types of employee speech as contrary to their legitimate business interests. For example, under the National Labor Relations Act, companies may restrict the times and places in which employees may advocate for collective bargaining. Translated into constitutional terms, it might be said that the employer may choose not to make its workspace available as a forum for worker speech with which it disagrees or which it feels is inappropriate for the workplace. The WRFA may well create a special right for those with a religious message to speak to their co-workers – creating a forum for religious speech alone where none existed before, despite the contrary wishes of the employer (and perhaps many of the co-workers). Such a regime would run afoul of the requirement that government not favor religion.
On each of these points, it bears emphasis that it would be prudent to take potential constitutional concerns into account in considering what form the WRFA should take, even if there are reasonable arguments for the validity of the current version. It would serve no one’s interests – not those of religious Americans seeking accommodations, nor those of employers, co-workers, the courts, or the EEOC – to have to start all over again because the courts determine the law violates the First Amendment. If the WRFA can be amended to remove possible constitutional infirmities, while still achieving its underlying purposes, it makes all the sense in the world to do so.
There is a set of situations where the “forced speech” fear is not a concern – those where the employee wishes not to speak because to do so would conflict with his or her religious beliefs. In those situations, the employer’s difficulty is not that it might be compelled to associate with a message it wishes to avoid, but that its own message might not be delivered. In my view, the WRFA successfully deals with these situations by allowing employers to require that employees perform the “essential functions” of their jobs. For those positions requiring the employee to communicate the company’s message, his or her inability to do so on religious grounds would not require an accommodation.

The WRFA May Create Conflicts Among Employees
Second, the WRFA appears to raise a genuine potential for creating conflicts between workers. As written, it would make it significantly more difficult for the owner to point to workplace friction as a basis for refusing to grant a requested accommodation from one of its rules. In some situations, a religious practice might offend co-workers, or interfere with their rights. In others, one or more co-workers might be required to cover for a colleague who obtained a Sabbath day off, or relief from a particular task he or she would otherwise have to perform.
As to all of these issues, employers will of course be able to raise the defense contained in the amended § 701(j)(3), and try to demonstrate that the requested accommodation would require “significant difficulty or expense.” One of the bill’s strengths is that it sets forth specific factors that are relevant to what constitutes “significant difficulty or expense,” but it is troubling that the factors identified by the bill are limited to financial considerations. They do not include the company’s right to define the message it sends in the conduct of its business and to avoid conflict with the rights of co-workers. Some defenders of the WRFA have suggested that it is alarmist to suggest that it will cause difficulties in these areas, but H.R. 1445 would be significantly strengthened if these considerations were explicitly added to the factors that should be considered in assessing an employer’s undue hardship defense.

The Need for and Effectiveness of H.R. 1445
Finally, while there undoubtedly are cases where religious beliefs have received less accommodation than members of Congress believe is justified, that is not the same as saying that there is a widespread pattern or problem justifying legislative action. In my experience at the EEOC, religious accommodation claims were no more or less successful (and in fact were far less plentiful) than other sorts of cases. Nor, in my judgment, does the problem lie principally in the substantive coverage of § 701(j).
First, there are relatively few religious discrimination charges of any kind filed each year with the EEOC. Since 1992, such charges have never amounted to more than 3.1% of the total charges the Commission has received in any given year. In addition, charges alleging a failure to provide a religious accommodation represent only a fraction of the total religious discrimination claims. And although I have not worked at the Commission since 1996, I can state categorically that the Commission took those charges just as seriously, investigated them as thoroughly, and litigated them just as aggressively, as any others. In the years 1992 to 2004, the range of “reasonable cause” determinations in religious discrimination cases ranged from a low of 2.5% of resolutions to a high of 10.2% in 2001, figures that mirror the range of such findings under the other statutes the EEOC enforces. There is not, in other words, a special problem either in terms of the breadth of the problem or the seriousness of the executive branch’s response.
Nor, I submit, is there a problem with the ultimate resolution of such cases in federal court, at least not one attributable to the coverage provided under § 701(j). The unfortunate fact is that only a very small percentage of plaintiffs prevail in employment discrimination claims of any type. It is particularly ironic that the WRFA seeks to mirror the ADA’s definitions of “essential functions” and “undue hardship,” in an effort to strengthen § 701(j). It has been well-documented that ADA cases have fared dismally in federal court. An acceptable version of WRFA might well improve the landscape for religious accommodation claims somewhat, but in the long run more effective and stronger religious accommodation protection depends primarily on the effectiveness of Title VII generally. This, in turn, depends upon (1) broader reform of the standards by which summary judgment is granted, and how claims are proved, in employment discrimination cases, (2) the make-up of the federal judiciary that rules on Title VII and other employment discrimination cases, and (3) a commitment to provide adequate resources to permit the EEOC to perform its mission more effectively, both in the investigative stage and in litigating cases.

Conclusion
Protecting religious beliefs from the conflicts and pressures of the working world is an important goal. While there might be other means to serve that goal more fully and effectively, the WRFA could be one way of doing so, so long as it is amended to clearly and fully respect both the rights of co-workers, and the legitimate, non-discriminatory expectations of employers.