OPENING STATEMENT OF CHAIRMAN SAM JOHNSON

SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
LEGISLATIVE HEARING ON: H.R. 1445, THE WORKPLACE RELIGIOUS FREEDOM ACT OF 2005

November 10, 2005

I AM PLEASED TO CHAIR THIS MORNING’S HEARING ON THE WORKPLACE RELIGIOUS FREEDOM ACT, SPONSORED BY OUR COMMITTEE COLLEAGUE, MR. SOUDER. I AM ALSO PLEASED TO WELCOME OUR SUBCOMMITTEE COLLEAGUE, MS. MCCARTHY, WHO WILL ALSO BE TESTIFYING ON THIS IMPORTANT BILL. IT WILL BE A PLEASURE TO HEAR FROM BOTH OF YOU TODAY.

TODAY THE SUBCOMMITTEE WILL HEAR TESTIMONY ON AN ISSUE OF GREAT IMPORTANCE, AND OF DEEP INTEREST TO MEMBERS ON BOTH SIDES OF THE AISLE. THE ISSUE IS HOW, IN THE WORKFORCE, DO WE ACCOMMODATE THE BELIEFS AND PRACTICES OF THOSE OF STRONG RELIGIOUS FAITH? OR PUT ANOTHER WAY, HOW DO WE PROTECT THE RIGHTS OF PEOPLE OF FAITH ADHERING TO THEIR BELIEFS IN AN INCREASINGLY DIVERSE WORKPLACE?

AT THE SAME TIME, HOW DO WE STRIKE THE RIGHT BALANCE SO THAT EMPLOYERS AND BUSINESSES – OFTEN SMALL BUSINESSES – ARE ABLE TO STAFF AND RUN THEIR OPERATIONS IN A PRODUCTIVE MANNER WHILE RESPECTING ALL EMPLOYEES?

I THINK WE WOULD START WITH THE BASIC PREMISE –IN GENERAL, EMPLOYEES SHOULD NOT HAVE TO CHOOSE BETWEEN A JOB AND THEIR RELIGION. IT’S JUST THAT SIMPLE.

SINCE ITS ENACTMENT IN 1964, TITLE 7 OF THE CIVIL RIGHTS ACT HAS LONG GIVEN ABSOLUTE PROTECTION TO INDIVIDUALS BY MAKING IT UNLAWFUL FOR A PRIVATE, NON-SECTARIAN EMPLOYER TO DISCRIMINATE AGAINST ANY EMPLOYEE OR APPLICANT ON THE BASIS OF THEIR RELIGIOUS BELIEFS.

IN FACT, TO GIVE MEANING TO THAT PROTECTION, CONGRESS AMENDED TITLE 7 IN 1972 TO ENSURE THE MAXIMUM ABILITY OF EMPLOYEES TO ADHERE TO THEIR RELIGIOUS FAITHS AND PRACTICES IN THE WORKPLACE – WHILE RECOGNIZING THE LEGITIMATE DAY TO DAY NEEDS OF EMPLOYERS DETERMINED TO RUN SUCCESSFUL BUSINESSES.

HOWEVER, DESPITE THE PROVISIONS OF TITLE 7, THERE IS CONCERN THAT THESE PROTECTIONS HAVE BEEN UNDERMINED BY INTERPRETATION BY THE COURTS, AND IN PARTICULAR BY TWO SUPREME COURT DECISIONS.

IN ONE CASE, THE COURT HELD THAT IF AN ACCOMMODATION OF A RELIGIOUS BELIEF OR PRACTICE CAUSES AN EMPLOYER TO BEAR MORE THAN A MINIMAL COST IT IS AN “UNDUE HARDSHIP” AND THUS THE EMPLOYER IS NOT REQUIRED TO MAKE THAT ACCOMMODATION. SEVERAL YEARS LATER, THE SUPREME COURT FURTHER LIMITED THE SCOPE OF TITLE 7, BASICALLY RULING THAT THERE ARE SEVERAL OPTIONS FOR REASONABLY ACCOMMODATING AN EMPLOYEE’S RELIGIOUS PRACTICES, AND IT IS THE EMPLOYER’S CHOICE WHICH ACCOMMODATION HE OR SHE WILL PROVIDE.

MANY HAVE ARGUED THAT THE LEGACY OF THESE DECISIONS HAS BEEN TO RENDER TITLE 7’S PROTECTION OF RELIGIOUS PRACTICE MEANINGLESS.
H.R. 1445 IS A RESPONSE TO THOSE CASES, AND AN ATTEMPT TO RESTORE THOSE PROTECTIONS.

H.R. 1445 WOULD PROHIBIT DISCRIMINATION AGAINST ANY EMPLOYEE WHO “WITH OR WITHOUT REASONABLE ACCOMMODATION” IS QUALIFIED TO PERFORM THE ESSENTIAL FUNCTIONS OF THE POSITION, UNLESS THE ACCOMMODATION CONSTITUTES AN “UNDUE HARDSHIP.”

“UNDUE HARDSHIP” IS DEFINED AS “REQUIRING SIGNIFICANT DIFFICULTY OR EXPENSE,” AS MEASURED BY : (1) THE COST TO THE EMPLOYER (INCLUDING THE LOSS OF PRODUCTIVITY AND/OR RETRAINING OR TRANSFERRING EMPLOYEES FROM ONE FACILITY TO ANOTHER); (2) THE OVERALL FINANCIAL RESOURCES AND SIZE OF THE EMPLOYER; AND (3) FOR MULTI-FACILITY EMPLOYERS, THE GEOGRAPHIC OR ADMINISTRATIVE SEPARATENESS OF THE FACILITIES.

AT THE SAME TIME, H.R. 1445 SPECIFICALLY STATES THAT THE ESSENTIAL FUNCTIONS OF ANY POSITION DO NOT INCLUDE DRESS CODES OR SCHEDULING ISSUES; THEREFORE, AN EMPLOYER MUST ACCOMMODATE AN EMPLOYEE’S REQUEST FOR LEAVE TO PARTICIPATE IN RELIGIOUS OBSERVANCES OR TO MODIFY A DRESS CODE FOR RELIGIOUS PURPOSES.

FINALLY, THE BILL REQUIRES THAT AN EMPLOYER INITIATE AND ENGAGE IN AN AFFIRMATIVE AND BONA-FIDE EFFORT TO ACCOMMODATE AN EMPLOYEE’S RELIGIOUS BELIEF OR PRACTICE.

THE ISSUES AT STAKE ARE FAR TOO IMPORTANT TO LEAVE TO THE LAW OF UNINTENDED CONSEQUENCES.

IF WE ARE TO PURSUE LEGISLATIVE SOLUTIONS, THEY MUST BE FAIR, EQUITABLE, AND PROPERLY BALANCE THE MANY IMPORTANT, IF SOMETIMES COMPETING, INTERESTS.

IN THAT LIGHT, I LOOK FORWARD TO HEARING THE TESTIMONY FROM ALL OF OUR WITNESSES.

WE WILL HEAR FIRST FROM OUR DISTINGUISHED COLLEAGUES, THEN FROM AN EQUALLY DISTINGUISHED PANEL OF EXPERTS, EACH OF WHOM WILL PROVIDE INSIGHT AS TO HOW TITLE 7 IS WORKING, WHETHER IT IS BROKEN, AND HOW H.R. 1445 WOULD ADDRESS ANY PROBLEMS.