Testimony of Congressman Mark Souder
Regarding H.R. 1445, the Workplace Religious Freedom Act
Subcommittee on Employer-Employee Relations

November 10, 2005

Thank you, Mr. Chairman, for the opportunity to testify before the Employer-Employee Relations Subcommittee today. I appreciate being able to discuss a bill that I have introduced, along with my colleague Congresswoman Carolyn McCarthy, that will help restore religious liberties in the workplace.

The Workplace Religious Freedom Act, H.R. 1445, has broad, bi-partisan support in both the House and Senate, indicating that it is an issue that deserves serious consideration. Senators John Kerry and Rick Santorum have been the leaders on this legislation for a number of years, and I am pleased to be able to work with them in moving this legislation forward in the House.

Let me start, by laying out the rationale for why this legislation is needed at this particular point in American history. Then, I’ll address, briefly, some of the concerns that I have heard about this legislation, and I’ll be happy to answer any questions my colleagues may have.

Why WRFA? Why Now?

As America becomes increasingly diverse in its ethnic and religious makeup, and as more Americans are finding their religious beliefs at odds with a secular, often anti-religious society, the need for strengthening religious liberties has become all the more important and, indeed, necessary. America was founded as a place of religious freedom, yet today those very freedoms are being denied as some employers refuse to work out reasonable accommodations for their employees’ religious observances. Catholics, Jews, Muslims, conservative evangelical Christians and individuals from many other faiths have found themselves in the position of having to compromise their religious convictions in order to keep their job.

While the large majority of the Title VII religious accommodation cases involve religious garb, grooming or observance of holy days, about 25 percent of the cases involve other religious accommodation requests, such as conscience objections to certain work activities. One gentleman who is with us in the audience today was working as a network designer and systems engineer in the Maryland suburbs. As a member of the Seventh Day Adventist Church, he objected to his assignment to work on a website project that sold and distributed pornography. Fortunately, this gentleman was able to find work elsewhere since he was a highly skilled worker, but he shouldn’t have been forced to make this choice. There are many other employees across the country that are not so fortunate.

A former small businessman and a conservative evangelical Christian myself, I understand the tension in the workplace between accommodating the beliefs of all religious employees—particularly those of a minority religion—and maintaining a profitable and productive business. It isn’t always easy to find a solution agreeable to both the employer and employee. Yet, if America is to stand as the protector of religious freedom, the work environment must be a place where people of all faiths are free to follow their conscience without fear of losing their job.

How Would WRFA Change Current Law?

As you may know, existing civil rights law does provide some protections to religious people in the workplace. However, these protections have been severely undermined by a few Supreme Court cases that have effectively thwarted the intent of Congress—as expressed in the 1972 amendments to Title VII of the Civil Rights Act of 1964—to protect “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business (42 U.S.C. § 2000e(j)).”

In Trans World Airlines v. Hardison, the Supreme Court re-interpreted Title VII religious liberty protections by applying a “de minimis” cost standard to the definition of “undue hardship” on the employer. The Court held that “to require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” This new de minimis standard established such a low threshold for employers that today there is little incentive for them to work out religious accommodations with their employees.

The Workplace Religious Freedom Act is necessary to re-establish the intent of Congress that only real hardship is reason for an employer not to provide a reasonable accommodation for an employee. My bill would define “undue hardship” as a “significant difficulty or expense,” similar to the definition used in the Americans with Disabilities Act. The bill establishes several criteria for determining what constitutes a significant difficulty or expense, including the costs of providing such an accommodation, the size of the employer (in terms of financial resources and number of employees), and the geographic separateness or administrative or fiscal relationship of an employer’s multiple facilities.

The bill I introduced will also establish that a “reasonable accommodation” “shall remove the conflict between employment requirements and the religious observance or practice of the employee.” The reasonable accommodation requirement of current law was interpreted by the Supreme Court in Ansonia Board of Education v. Philbrook to favor the preferred accommodation of the employer—not the employee. The Workplace Religious Freedom Act would require the employer to find an accommodation that satisfies the employee as long as that accommodation does not impose a significant difficulty or expense on the employer.

Together, I believe the proposed new definitions of “reasonable accommodation” and “undue hardship” strike the appropriate balance between employer and employee rights as they relate to religious liberty in the workplace.

To clarify the rights of employers, however, the legislation states that an employee must be able to perform the “essential functions” of his or her job “with or without reasonable accommodation.” This provision ensures that an employee cannot request an accommodation that would make it impossible to fulfill the core requirements of a job. The “essential functions” term cannot, however, be interpreted to include practices such as wearing religious clothing, taking time off for religious observances, or “other practices that may have a temporary or tangential impact on the ability to perform job functions.” Those practices may not be considered an “essential function” of a job under this legislation, unless an accommodation for those practices is believed to be an “undue hardship” on the employer. For instance, if an individual applied for a weekend watchman job at a warehouse and knew that his particular faith disallowed working on either a Saturday or Sunday, the employer would not be obligated to provide an accommodation for that individual.

Addressing Concerns

Whenever legislation deals with such a highly individual and personal subject as religion in the workplace, there will always be criticism from various groups that are unsure of how it will be carried out in practice. Fortunately, however, WRFA does have some precedent in state law that can be examined to determine how it might play out on a national level. The state of New York passed a law similar to WRFA in 2002 that, by all reports, has not resulted in the dire predictions anticipated by critics on both the right and left. According to Attorney General Eliot Spitzer, New York’s law has not been overly burdensome on businesses or resulted in an increase in litigation; nor has it resulted in the infringement of a woman’s ability to have an abortion or purchase birth control as the ACLU has predicted.

Still, even with the positive experience with workplace religious freedom law in New York, criticisms of WRFA still exist. I do believe, however, that some of these concerns can be resolved with a clear explanation of the facts about the bill.

I know that my colleague Mrs. McCarthy will be addressing some of the concerns from the more liberal perspective, so I will focus my analysis on those criticisms from traditional Republican constituencies—namely the business community. First, however, let me just say that religious accommodation will not work without a little give and take from all interested parties. Religious accommodation cannot mean anything an employee wants it to be—especially when it has a direct impact on other individuals, whether they be co-workers or a business’ clients or customers. Thus, whether one is a conservative Christian, devout Muslim, or adherent of a smaller, less organized religion, he or she should not be able to demand an accommodation that would impose significant difficulty or expense on the employer or result in the inability to perform the core functions of his or her job.

With that said, let me address just a few of the concerns of the business community: the potential for a rise in litigation and a growth in fraudulent religious claims.

First, quite to the contrary of some of WRFA’s critics, regarding litigation, the Workplace Religious Freedom Act is expected to reduce or at the very least stabilize litigation. Between 1993 and 2003, claims to the EEOC involving religious discrimination in the workplace rose 82 percent. During this same time period, racial discrimination cases declined slightly. By clarifying the “undue hardship” standard for employers to work out a religious accommodation with employees, litigation will be reduced as fewer employees will be forced to sue in order to get the attention of their employers.

Additionally, according to James Morgan, a professor of Legal Studies in Business at California State University, Chico, there has been some disagreement in lower courts as to the interpretation of the Hardison and Philbrook Supreme Court Opinions. This judicial confusion has led to varying standards and interpretations of the Title VII religious accommodation provisions, possibly resulting in an increase in litigation. Morgan writes: “A strong argument can be made that many lower courts are writing opinions favoring the employee’s position, in possible violation of the restrictive mandate that necessarily flows from the Hardison/Philbrook approach, because they perceive the Court’s position as overly burdensome on the rights of religious applicants and employees.” WRFA will ensure that the religious accommodation provisions (as amended in 1972 to Title VII of the Civil Rights Act of 1964) are clarified in U.S. Code as originally intended by Congress. This clarification will help reduce litigation, while at the same time provide greater incentive for employers to work out an amicable accommodation with religious employees.

Secondly, let me address the concern that WRFA will result in an increasing number of bogus religious claims by employees who are seeking time off or dislike strict requirements on outward appearance and dress. I can sympathize with these concerns from the business community, especially as religious beliefs are becoming increasingly more personal and difficult to classify according to more traditional views of religious belief and practice. However, the Workplace Religious Freedom Act does nothing to change the current definition of “religion” under EEOC guidelines. Existing Title VII interpretive guidelines published by the Equal Employment Opportunity Commission (EEOC) provide that: (1) religious practices protected under Title VII include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views;” (2) a person may ascribe to a particular religious belief even if “no religious group espouses such beliefs or the fact the religious group to which the individual professes to belong may not accept such belief,” and (3) the term “religious practice” includes “both religious observances and practices.”

Admittedly, this broad interpretation of religion and religious practices makes it difficult for an employer to call into question the validity of an employee’s stated religious beliefs or practices. However, the courts can examine whether an individual has a “sincerely held” religious belief. Few individuals would go through the trouble and expense of being fired from their job and suing their employer in order to obtain an accommodation if they did not sincerely hold their religious beliefs. And, of course, there is a limit to what an employee can receive as an accommodation. If the employee’s request would result in a significant difficulty or expense to the employer, the accommodation would not have to be granted. Additionally, I am hesitant to allow the federal government to further tinker with the definition of religion for fear that it could be defined so narrowly that many religious beliefs and practices would be considered ineligible for purposes of making accommodations.

I am sure there are other concerns that I have not addressed, but I believe these are the most common concerns I have heard. Part of the reason I have been looking forward to this hearing is to listen to the panel members and my colleagues to understand the concerns that they may have. This legislation has been carefully crafted over a number of years, but I am always open to considering other legitimate possibilities as long as they result in restoring the intent of the 1972 amendments to the Civil Rights Act of 1964, which was to hold employers accountable to working out a reasonable accommodation for their religious employees.

Thank you again, Mr. Chairman, for this opportunity to testify before the subcommittee today. I am happy to answer any questions.