<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24514.wais]
H.R. 1445, THE WORKPLACE RELIGIOUS FREEDOM ACT OF 2005
=======================================================================
HEARING
before the
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
November 10, 2005
__________
Serial No. 109-26
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN A. BOEHNER, Ohio, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California
Chairman Dale E. Kildee, Michigan
Howard P. ``Buck'' McKeon, Major R. Owens, New York
California Donald M. Payne, New Jersey
Michael N. Castle, Delaware Robert E. Andrews, New Jersey
Sam Johnson, Texas Robert C. Scott, Virginia
Mark E. Souder, Indiana Lynn C. Woolsey, California
Charlie Norwood, Georgia Ruben Hinojosa, Texas
Vernon J. Ehlers, Michigan Carolyn McCarthy, New York
Judy Biggert, Illinois John F. Tierney, Massachusetts
Todd Russell Platts, Pennsylvania Ron Kind, Wisconsin
Patrick J. Tiberi, Ohio Dennis J. Kucinich, Ohio
Ric Keller, Florida David Wu, Oregon
Tom Osborne, Nebraska Rush D. Holt, New Jersey
Joe Wilson, South Carolina Susan A. Davis, California
Jon C. Porter, Nevada Betty McCollum, Minnesota
John Kline, Minnesota Danny K. Davis, Illinois
Marilyn N. Musgrave, Colorado Raul M. Grijalva, Arizona
Bob Inglis, South Carolina Chris Van Hollen, Maryland
Cathy McMorris, Washington Tim Ryan, Ohio
Kenny Marchant, Texas Timothy H. Bishop, New York
Tom Price, Georgia John Barrow, Georgia
Luis G. Fortuno, Puerto Rico
Bobby Jindal, Louisiana
Charles W. Boustany, Jr., Louisiana
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New
York
Paula Nowakowski, Staff Director
John Lawrence, Minority Staff Director
------
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
SAM JOHNSON, Texas, Chairman
John Kline, Minnesota, Vice Robert E. Andrews, New Jersey
Chairman Dale E. Kildee, Michigan
John A. Boehner, Ohio Donald M. Payne, New Jersey
Howard P. ``Buck'' McKeon, Carolyn McCarthy, New York
California John F. Tierney, Massachusetts
Todd Russell Platts, Pennsylvania David Wu, Oregon
Patrick J. Tiberi, Ohio Rush D. Holt, New Jersey
Joe Wilson, South Carolina Betty McCollum, Minnesota
Marilyn N. Musgrave, Colorado Raul M. Grijalva, Arizona
Kenny Marchant, Texas George Miller, California, ex
Bobby Jindal, Louisiana officio
Charles W. Boustany, Jr., Loiusiana
Virginia Foxx, North Carolina
C O N T E N T S
----------
Page
Hearing held on November 10, 2005................................ 1
Statement of Members:
Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
Employee Relations, Committee on Education and the
Workforce.................................................. 1
Prepared statement of.................................... 4
McCarthy, Hon. Carolyn, a Representative in Congress from the
State of New York.......................................... 10
Prepared statement of.................................... 14
Souder, Hon. Mark A., a Repesentative in Congress from the
State of Indiana........................................... 6
Prepared statement of.................................... 8
Statement of Witnesses:
Foltin, Richard T., Esq., Legislative Director and Counsel,
American Jewish Committee.................................. 21
Prepared statement of.................................... 23
Land, Dr. Richard, President, Ethics and Religious Liberty
Commission, Southern Baptist Convention.................... 18
Prepared statement of.................................... 20
Marcosson, Samuel A., Associate Dean and Professor of Law,
Louis D. Brandeis School of Law, University of Louisville.. 34
Prepared statement of.................................... 35
Olson, Camille A., Partner, Seyfarth Shaw LLP, on behalf of
the U.S. Chamber of Commerce............................... 38
Prepared statement of.................................... 40
Additional Submissions:
Letters of Support for H.R. 1445:
Coalition for Religious Freedom in the Workplace......... 86
Nevada-Utah Conference of Seventh-day Adventists......... 82
Union of Orthodox Jewish Congregations of America........ 84
United States Conference of Catholic Bishops............. 83
U.S. Senators Santorum and Kerry......................... 12
Appendix I: New York's Human Rights Law:
Letters to witnesses requesting supplemental testimony... 55
Response from Richard T. Foltin, the American Jewish
Committee.............................................. 58
Response from Camille A. Olson, Esq., Seyfarth Shaw LLP,
on behalf of the U.S. Chamber of Commerce.............. 62
Various appendices pertaining to New York's human rights
law.................................................... 64
H.R. 1445, THE WORKPLACE RELIGIOUS FREEDOM ACT OF 2005
----------
Thursday, November 10, 2005
U.S. House of Representatives
Subcommittee on Employer-Employee Relations
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:33 a.m., in
room 2175, Rayburn House Office Building, Hon. Sam Johnson
[chairman of the subcommittee] presiding.
Present: Representatives Johnson, Kline, Boehner, Jindal,
Kildee, McCarthy, Holt, and Tierney.
Staff present: Steve Forde, Director of Media Relations; Ed
Gilroy, Director of Workforce Policy; Rob Gregg, Legislative
Assistant; Byron Campbell, Legislative Assistant; Richard Hoar,
Professional Staff Member; Jim Paretti, Workforce Policy
Counsel; Steve Perrotta, Professional Staff Member; Deborah L.
Emerson Samantar, Committee Clerk and Intern Coordinator; Jody
Calemine, Counsel Employer-Employee Relations; Tylease
Fitzgerald, Legislative Assistant/Labor; Michele Varnhagen,
Labor Counsel/Coordinator; Michele Evermore, Legislative
Associate/Labor.
Chairman Johnson [presiding]. A quorum being present, the
Subcommittee on Employer-Employee Relations will come to order.
We are holding this hearing today to hear testimony on H.R.
1445, the Workplace Religious Freedom Act.
[The bill follows:]
H. R. 1445
To amend title VII of the Civil Rights Act of 1964 to establish
provisions with respect to religious accommodation in employment, and
for other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 17, 2005
Mr. Souder (for himself, Mrs. McCarthy, Mr. Jindal, Mr. Weiner, Mr.
Cantor, Mr. Van Hollen, and Mr. Price of North Carolina) introduced the
following bill; which was referred to the Committee on Education and
the Workforce
A BILL
To amend title VII of the Civil Rights Act of 1964 to establish
provisions with respect to religious accommodation in employment, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Workplace Religious Freedom Act of
2005''.
SEC. 2. AMENDMENTS.
(a) Definitions.--Section 701(j) of the Civil Rights Act of 1964
(42 U.S.C. 2000e(j)) is amended--
(1) by inserting ``(1)'' after ``(j)'';
(2) by inserting ``, after initiating and engaging in an
affirmative and bona fide effort,'' after ``unable'';
(3) by striking ``an employee's'' and all that follows
through ``religious'' and inserting ``an employee's
religious''; and
(4) by adding at the end the following:
``(2)(A) In this subsection, the term `employee' includes an
employee (as defined in subsection (f)), or a prospective employee,
who, with or without reasonable accommodation, is qualified to perform
the essential functions of the employment position that such individual
holds or desires.
``(B) In this paragraph, the term `perform the essential functions'
includes carrying out the core requirements of an employment position
and does not include carrying out practices relating to clothing,
practices relating to taking time off, or other practices that may have
a temporary or tangential impact on the ability to perform job
functions, if any of the practices described in this subparagraph
restrict the ability to wear religious clothing, to take time off for a
holy day, or to participate in a religious observance or practice.
``(3) In this subsection, the term `undue hardship' means an
accommodation requiring significant difficulty or expense. For purposes
of determining whether an accommodation requires significant difficulty
or expense, factors to be considered in making the determination shall
include--
``(A) the identifiable cost of the accommodation, including
the costs of loss of productivity and of retraining or hiring
employees or transferring employees from 1 facility to another;
``(B) the overall financial resources and size of the
employer involved, relative to the number of its employees; and
``(C) for an employer with multiple facilities, the
geographic separateness or administrative or fiscal
relationship of the facilities.''.
(b) Employment Practices.--Section 703 of such Act (42 U.S.C.
2000e-2) is amended by adding at the end the following:
``(o)(1) In this subsection:
``(A) The term `employee' has the meaning given the term in
section 701(j)(2).
``(B) The term `leave of general usage' means leave
provided under the policy or program of an employer, under
which--
``(i) an employee may take leave by adjusting or
altering the work schedule or assignment of the
employee according to criteria determined by the
employer; and
``(ii) the employee may determine the purpose for
which the leave is to be utilized.
``(2) For purposes of determining whether an employer has committed
an unlawful employment practice under this title by failing to provide
a reasonable accommodation to the religious observance or practice of
an employee, for an accommodation to be considered to be reasonable,
the accommodation shall remove the conflict between employment
requirements and the religious observance or practice of the employee.
``(3) An employer shall be considered to commit such a practice by
failing to provide such a reasonable accommodation for an employee if
the employer refuses to permit the employee to utilize leave of general
usage to remove such a conflict solely because the leave will be used
to accommodate the religious observance or practice of the employee.''.
SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.
(a) Effective Date.--Except as provided in subsection (b), this Act
and the amendments made by section 2 take effect on the date of
enactment of this Act.
(b) Application of Amendments.--The amendments made by section 2 do
not apply with respect to conduct occurring before the date of
enactment of this Act.
______
Under committee rule 12(b), opening statements are limited
to the chairman and ranking minority member of the committee.
Therefore, if other members have statements, they will be
included in the hearing record.
With that, I ask unanimous consent for the hearing to
remain open 14 days to allow member statements and other
extraneous material referenced during the hearing to be
submitted in the official hearing record. Without objection, so
ordered.
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, Mrs. 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?
I think we would start with the basic premise. In general,
employees should not have to choose between a job and their
religions. It is just that simple.
Since its enactment in 1964, Title VII of the Civil Rights
Act has long given absolute protection to individuals by making
it unlawful for a private, nonsectarian 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 VII 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 VII, 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 VII, 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 VII 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, one, the cost to the
employer, including the loss of productivity and/or retraining
or transferring employee from one facility to another; two, the
overall financial resources and size of the employer; and
three, for multi-facility employers, the geographic or
administrative separateness of the facilities.
At the same time, H.R. 1445 specifically states 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 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 balanced
in many important and sometimes competing interests.
In that light, I look forward to hearing the testimony from
all of our witnesses. We will first hear from our distinguished
colleagues, then from an equally distinguished panel of
experts, each of whom will provide insight as to how Title VII
is working, whether or not it is broken, and how H.R. 1445
would address any problems.
With that, I would yield to my friend, Mr. Kildee, for any
opening statement he may have.
[The prepared statement of Chairman Johnson follows:]
Prepared Statement of Hon. Sam Johnson, Chairman, Subcommittee on
Employer-Employee Relations, Committee on Education and the Workforce
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, Mrs.
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.
______
Mr. Kildee. Thank you, Mr. Chairman, and thank you for
convening this hearing this morning.
I would like to thank especially my colleagues, Mr. Souder
and Mrs. McCarthy, for agreeing to testify on religious
discrimination in the workplace and their very serious proposal
to advance employee rights against that discrimination. That
proposal is the Workplace Religious Freedom Act. This bill
deserves our attention, as do the underlying problems of
workplace discrimination which it seeks to address.
Congress enacted Title VII of the Civil Rights Act in 1964,
prohibiting, among other things, religious discrimination in
the workplace. That right against religious discrimination
recognizes a core principle in American government and society.
We cherish religious liberty. Religious liberty in fact was so
important to our founding fathers that they enshrined it in the
very first amendment to our Constitution.
Mr. Chairman, when it comes to religious freedom in the
workplace, Congress must be very, very sensitive. We must
protect the rights of the worker to practice his or her
religion. We must also consider the legitimate needs of the
employer to have a productive workplace, and we must protect
the rights of fellow coworkers.
This bill seeks to strike the right balance among providing
meaningful religious accommodation, protecting others when
those accommodations might conflict with their rights, and
avoiding needless burdens on the employers.
I suspect that today we will hear about whether that right
balance has been struck. It seems that most people, if not
everyone, engaged in this issue have the same intent and
purpose in mind: to advance the right of employees against
religious discrimination, without imposing undue hardships on
the employers and without infringing on the rights of others.
During the course of this hearing, we should keep in mind that
common intent and purpose.
I look forward to hearing today's testimony from a very
esteemed group of witnesses. Their testimony will help us
advance a common cause: to protect people from having to choose
between living their faith and earning a living, while ensuring
that any accommodation which the law might mandate does not
trample on the fundamental rights of others.
Thank you very much, Mr. Chairman.
Chairman Johnson. Thank you, Mr. Kildee.
We have two distinguished panels of witnesses today.
For the first panel, we welcome our colleagues and fellow
members of the Education and Workforce Committee, Congressman
Souder and Congresswoman McCarthy, who have sponsored the
Workplace Religious Freedom Act.
I do not think I need to explain the light system to you
two, but we will restrict you to 5 minutes.
Mr. Souder, you are recognized.
STATEMENT OF HON. MARK E. SOUDER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF INDIANA
Mr. Souder. Thank you very much, Mr. Chairman, for the
opportunity to testify and for holding this hearing today on
the Employer-Employee Relations Subcommittee.
The Workplace Religious Freedom Act has broad bipartisan
support in both the House and Senate, indicating that it is an
issue that deserves serious consideration. Senators John Kerry
and Rick Santorum, a somewhat unusual combination, just like
Congresswoman McCarthy and myself, and Chris Van Hollen was
just at our press conference, have been leaders on this
legislation for a number of years. I am pleased to be able to
work with them in moving this legislation forward in the House.
Let me start by laying out a rationale why this legislation
is needed at this particular point in American history.
I would add: an unusual opportunity time. We argue all the
time about faith-based legislation, but here is one where the
left and right both agree. It is a way for us to show, in a
united way, the importance of religious liberty and faith in
our country at a time when we are in fact becoming more
diverse. This bill offers that opportunity.
As America becomes increasingly diverse in its ethnic and
religious heritage and as more Americans are finding their
religious beliefs at odds with the secular and 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, and
yet today these 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.
In fact, three are behind me: James Aligne is from Maryland
and he lost his job; Deborah Fountain from California lost her
job; and Miguel Hernandez from Arizona, are all here.
They lost their jobs because they tried to practice their
faith. In fact, in Deborah's case, the employer then came back
and found a reasonable accommodation. None of them were things
that could not have been accommodated inside the workplace,
which is what our bill tries to do.
In fact, the Supreme Court has effectively thwarted the
intent of Congress as expressed in the 1972 amendments in 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 an employee's or perspective employee's religious
observance or practice without undue hardship on the conduct of
the employer's business.
Because in the Trans World Airlines case, what they did is
they took a de minimis standard opposed to an undue hardship.
Well, de minimis makes it almost impossible to prove because a
de minimis cost gives the employer such a huge upper hand in
the negotiations, and in many of these cases they are not high-
paying jobs, they are lower-paying jobs. So it is not like the
employee has a lot at stake here in the sense of lawsuits.
Before my time runs out, because the chairman outlined much
of the undue hardship and the reasonable accommodation
standard, I want to address some concerns that the business
community, including in my district, has expressed to me and
some of the conservative concerns with this bill, which I
believe are incorrect.
One of them is that this is somehow going to impose or lead
to a proliferation of lawsuits. In fact, litigation probably
will decline under this bill if it became law.
What has happened is, in the last 10 years where they have
the data, from 1993 to 2003, religious discrimination in the
workplace rose 82 percent because we do not understand the
standards. And this is in spite of the fact that the burden is
really on the employee because you do not do class action
suits. You do get large-dollar settlements here. All you can do
is get your job back or the amount that you lost in that
period, and if it is a low-paying job, the cost of going to
trial is far greater.
So, the only cases that are being brought are basically
nonprofits who have a backlog of cases because the
discrimination has become more prevalent. So it is not like
there is going to be this huge bursting out of lawsuits where
attorneys' fees can get you 30 or 40 percent and huge, huge
settlements. These are basically grassroots people from all
sorts of faiths who have lost mostly low-to medium-paid jobs
and do not have the resources even to protect their religious
rights.
Now, from the business side, they will probably get less
lawsuits because if we can clarify this, then you can at the
very least stabilize it.
Now, another thing is, how do we sort through whether
people are going to claim they are in a religion? Well, we have
standards. It is defined in the different acts, and furthermore
if it does, there is no financial incentive to make up a
religion so you do not have to work Saturdays, because the
whole thing here is then you are going to have to go through
the lawsuits. All you are going to do is get the job back,
unless you could establish that it was a valid reason in court.
That is the key thing. The court gets to determine whether
it is a truly held belief, a valid belief, and they can go into
that examination, and that has not been a problem. I do not
believe the validity of the religion will be a problem.
[The prepared statement of Mr. Souder follows:]
Prepared Statement of Hon. Mark E. Souder, a Representative in Congress
From the State of Indiana
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. Sec. 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.'' \1\ 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.
---------------------------------------------------------------------------
\1\ James F. Morgan, ``In Defense of the Workplace Religious
Freedom Act: Protecting the Unprotected Without Sanctifying the
Workplace,'' Labor Law Journal, Spring 2002: 71.
---------------------------------------------------------------------------
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.
______
Chairman Johnson. Thank you, Mr. Souder.
Mrs. McCarthy, you are recognized.
STATEMENT OF HON. CAROLYN MCCARTHY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mrs. McCarthy. Thank you, Mr. Chairman and fellow members
of our subcommittee, and Mr. Kildee, ranking member. I welcome
the opportunity to testify about the Workforce Religious
Freedom Act.
I also want to thank my colleague, Mr. Souder, for bringing
this to my attention and working with him on it. We have worked
bipartisanly on this bill for months and have not wavered in
our support.
Secondly, I would like to thank Senator Kerry and Senator
Santorum for introducing the same legislation in the Senate. As
was mentioned earlier, who thought that two of the Democrats
and two of the Republicans would be working on this?
I have a letter of support from the senators, which I would
like to include into the record.
Chairman Johnson. Without objection, so ordered.
[The letter follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mrs. McCarthy. Thank you.
This bill, simply stated, is pro-business, pro-faith and
pro-family. It is an important piece of legislation whose
passage is long overdue.
I felt the need to get involved with this legislation, with
over 40 diverse organizations in favor of this legislation,
because I have heard of many individuals who were forced to
choose between their job and their religions.
Nowadays, we have a 24/7-week work environment that clashes
with our religions observations. Unfortunately, since 9/11, our
Muslim and Sikh friends have been the target of backlash. Our
great nation was founded under the principles of freedom,
including religion. We, as members of Congress, have the
responsibility to ensure people are able to freely practice.
Asking the person to leave their religion at their door is
impossible and something they should not be asked to do.
In 1964, as mentioned before, we had Title VII of the Civil
Rights Act. Simply stated, employers are not allowed to
discriminate based on race, gender, color and religion.
But as the courts began to rule in the cases, they ruled
that any hardship is an undue hardship. This has left
religious-observant workers with little legal protection.
We are trying to re-establish the principle that employees
must reasonably accommodate the religious needs of employees.
We would do this by redefining ``undue hardship'' as something
that imposes significant difficulty or expense on the employer
or that would keep an employee from carrying out the essential
functions of the job.
It is an important point to make that the third parties
would not be adversely affected. I am hearing and reading a lot
regarding the bill from organizations which I agree with a
majority of the time that third parties would be affected.
I am a pro-choice member of Congress and believe a woman
should be able to choose what happens to her body, especially
in the case of an emergency. This legislation would not prevent
a woman from receiving an emergency abortion, obtaining birth
control medications or emergency contraceptives.
For example, if a nurse--and by the way, you all know my
background as a nurse--if a nurse has a religious objection to
participating in an emergency abortion, she would be covered.
Performing emergency surgery is an essential function of a
nurse's job. A court would not hear a case brought by a nurse
who feels wrongly dismissed by a hospital because the nurse
walked away from a patient in a case of emergency care. A
patient who is suffering places a significant burden on a
hospital, and a hospital would have to assist them.
Unfortunately, there has been a need to have clinics
protected in this day and age. This law would not allow a
clinic to be unprotected. If a police officer had a religious
objection with guarding the clinic, the request for removal is
accommodated as long as a replacement was possible. If not,
then the officer must accept the assignment.
Another concern I have heard regarding the bill is women
would have difficulty obtaining birth control because this bill
would protect a pharmacist who feels it is against their
religion fulfilling the prescription.
Currently, the American Pharmacists Association policy is
that pharmacies can refuse to fill prescriptions as long as
they make sure customers can get their medication some way.
This is exactly the point of this legislation.
We would be allowed to have a pharmacist who has a strong
religious objection in filling the prescription from doing so
without any effect on the individual. She would still receive
her prescription.
I would like to point out that WRFA does not apply to
employees who have fewer than 50 employees, so we are taking
care of the small-business person. This protects against a
circumstance in which an employee would not have a personal
place or it is located in a rural area.
I think the reason that we are testifying today is really
because we want to take away from the mix of what some people
might be seeing in this bill. New York State already has this
type of legislation in our state, and it is working very, very
well. We brought this legislation and we appreciate your having
this hearing, because it would give us the opportunity to
answer the questions where there might be some confusion about
it.
This country is different today than it was 50 or 60 years
ago. But even going then, when my great-grandparents came to
this country, they were Catholic, and they were discriminated
against. That is one of the reasons why I have a very strong
feeling about this.
And it is our job as Congress-people to certainly protect
the constitutional rights. It is something I strongly feel. We
might disagree on a number of issues in this Congress, but when
many of us can come together, I think that is the important
thing.
Thank you, Mr. Chairman. I look forward to answering any
questions.
[The prepared statement of Mrs. McCarthy follows:]
Prepared Statement of Hon. Carolyn McCarthy, a Representative in
Congress From the State of New York
Thank you Mr. Chairman and fellow members of the subcommittee.
I welcome the opportunity to testify about the Workforce Religious
Freedom Act.
I would first like to thank my colleague, Mr. Souder. We have
worked bipartisanly on this bill for months and have not wavered on our
support. Secondly, I would like to thank Senator Kerry and Senator
Santorum for introducing the same legislation in the Senate and their
tireless work.
This bill, simply stated, is pro-business, pro-faith and pro-
family. It is an important piece of legislation whose passage is long
overdue.
I felt the need to get involved, with the over 40 diverse
organizations, in favor of this legislation because I have heard of
many individuals who are forced to choose between their job and their
religion. Nowadays we have a 24 hour, 7 day a week work environment
that clashes with religious observances. And unfortunately, since 9/11
our Muslim and Sikh friends have been the target of backlash.
Our great nation was founded under the principles of freedom,
including religion. And we as members of Congress have a responsibility
to ensure people are able to freely practice. Asking a person to leave
their religion at their door is impossible and something they should
not be asked to do.
In 1964 Congress realized the importance of religion to workers by
providing Title 7 of the Civil Rights Act. Simply stated employers are
not allowed to discriminate based on race, gender, color and religion.
But as the courts began to rule on cases they ruled that any hardship
is an ``undue hardship.'' This has left religiously observant workers
with little legal protection.
WRFA will re-establish the principle that employers must reasonably
accommodate the religious needs of employees. WRFA would redefine undue
hardship as something that imposes significant difficulty or expense on
the employer or that would keep an employee from carrying out the
essential functions of the job.
An important point to make is that third parties would not be
adversely affected. I have been hearing and reading a lot regarding the
bill from organizations, which I agree with a majority of the time,
that third parties would be affected.
I am a pro-choice member of Congress and believe a woman should be
able to choose what happens to her body, especially in case of an
emergency. This legislation would not prevent a woman from receiving an
emergency abortion, obtaining birth control medication or emergency
contraceptives.
For example, if a nurse has a religious objection to participating
in an emergency abortion she would not be covered under WRFA.
Performing an emergency surgery of any kind is an essential function of
nurse's job.
A court would not hear a case brought by a nurse, who feels wrongly
dismissed by a hospital because the nurse walked away from a patient in
need of emergency care. A patient who is suffering places a significant
burden on a hospital and the hospital would have to assist them.
If a woman goes to an abortion clinic she can be subjected to
violence and threats. Unfortunately there has been a need to have the
clinics protected. This law would not allow a clinic to be unprotected.
If a police officer had a religious objection with guarding the
clinic his request for removal is accommodated as long as a replacement
was possible. If not, then the officer must accept the assignment.
Another concern I have heard regarding the bill is women would have
difficulty obtaining birth control because WRFA would protect a
pharmacist who feels it is against their religion from filling the
prescription.
Currently, The American Pharmacists Association's policy is that
pharmacists can refuse to fill prescriptions as long as they make sure
customers can get their medications some other way. This is exactly the
point of the legislation!! WRFA would allow a pharmacist who has a
strong religious objection to filling the prescription from doing so
without any affect on the individual. She would still receive her
prescription.
I'd like to point out that WRFA does not apply to employers who
have fewer than 15 employees. This protects against circumstances in
which an employer would not have the personnel in place or is located
in a rural area. So, for example, a pharmacy with less than 15
employees would operate under their association's policy.
It is time to allow people to once again practice their religion
without fear of losing their job.
Once again I thank you for the opportunity to talk about
legislation that is pro-business, pro-faith and pro-family.
I welcome any questions you may have.
______
Chairman Johnson. Thank you, Mrs. McCarthy.
Mr. Souder, I might ask you, you have people here, do you
want to take one case in particular and explain to us why you
are interested in this legislation? Can I ask you, will it stop
the wind from blowing through the windows up there?
[Laughter.]
Mr. Souder. Let me use Deborah Fountain's case and relate
it to a couple of others.
In her case--she is behind me here--she was an airline
attendant and wanted to have the Sabbath off. They fired her.
Then they came back and, my understanding is, rehired her with
a Sabbath-accommodating schedule, because of course when you
are flying seven days a week and have all these flights, it is
not that hard to accommodate this kind of stuff.
There was another case of a Sears repairman who wanted
Saturdays off, and they said it was the busiest repair day, and
so they fired him. Now, the fact is that Saturday turned out
not to be the busiest repair day.
In another case, they were pressing on the Saturday Sabbath
question and found that the person said he would come in at
sundown.
Now, if it is an essential function--this was what
Congressman McCarthy said is critical--if it is an essential
function, you cannot get the Saturday off. If that becomes a
key part of their job--in retail furniture that I grew up in,
as much as 40 percent of the sales may fall on a Saturday. If
you are the top salesman, then you would define that much like
in parental and family leave, where we have key employees, we
do this essential function-type stuff all the time in
legislation. This is not that hard to work through, yet it is
one of the big bogeymen that we try to deal with this.
I have a company in my district that the way they first
found they had very devout Muslims was their assembly line
crashed at prayer time. They tried to figure out why the line
crashed: because two people went down on the rug and started
praying to the east.
Now, they could have fired them, which many companies would
do. They could have said, ``Oh, this is inconvenient. Just work
through this.'' But they adjusted the break period, and in the
one break room they set it up so they could have a prayer in
the break room, adjusted the schedule, and everybody is happy.
Now, in a tight labor market in that area, they have a
significant percentage in this rural country town of Arab
employees because they showed some sensitivity to their culture
with no impact whatsoever on the production at the factory.
What was so hard about that?
Some people just want to fight the change, and that is why
it is not effective. If they are a key employee or if it is an
essential function, you can have these type of things in law,
but some people just do not want to do anything. That, kind of,
is inconvenient, and that is what the court has given the
advantage of. If a business does not feel like accommodating
you, they do not have to accommodate you.
Mrs. McCarthy. I would like to just follow up on that too.
In my world of nursing, obviously we worked 24/7. Every
patient had to be covered in the hospital that I worked in. And
yet many of us nurses, whether they were Muslim nurses or
Jewish nurses or myself, we always were able to accommodate
each other. I think that is important to know, because
basically the hospital allowed us to accommodate each other.
Now, there were many times I would have loved to have
Christmas off every single year, but I can certainly remember
working on Christmases because they could not replace me. I
worked in the intensive care unit; I understood that.
This legislation would also enforce that. If there is no
accommodation there, then that person would have to work. So I
think it is a fair and balanced thing.
Chairman Johnson. Thank you, both.
Mr. Kildee, you are recognized for 5 minutes.
Mr. Kildee. Thank you very much.
I appreciate Mr. Souder's and Mrs. McCarthy's work on this.
One question to Mrs. McCarthy. You say New York state has a
similar law to the one you are proposing. How has the business
community accommodated itself to that law?
Because New York is not just New York City. It is quite a
microcosm of America when you travel the whole state of New
York.
Mrs. McCarthy. I think what this legislation also does, in
New York because we do have a similar law, it is really a
matter of accommodation. We have found that with the law in New
York, it gave the employers and the employees exactly what the
rules were, so everyone knew exactly where they were when they
were asking for accommodations on their religion.
Now, I understand New York certainly is a very, very large
area, but we found that they could accommodate it and it did
not hurt businesses at all. I think it is something, whether it
is a low-income job or even on the higher end, the businesses
have been able to accommodate it.
So, I think that what we are trying to do--and that is why
I certainly support this legislation, is that we are doing it
in New York. It already is working well in New York, and I
think the rest of the country needs to catch up to New York.
Mr. Kildee. After the enactment of the New York law, did
you see any increase in litigation or decrease or about the
same?
Mrs. McCarthy. Actually less, mainly because, again, the
companies saw what their responsibility was and it was clear,
it was actually clear, on how to accommodate those that were
looking for the day off on their religious observation.
Mr. Kildee. Thank you very much.
I yield back.
Chairman Johnson. Thank you, both. I think there are no
more questions. We appreciate your testimony. You all may step
down.
Would the next panel come forward and take their seats,
please?
Dr. Richard Land is president of the Ethics and Religious
Liberty Commission, the Southern Baptist Convention's official
entity assigned to address social, moral and ethical concerns.
Dr. Land is executive editor of the magazine ``Faith and Family
Values,'' and was appointed this year to the U.S. Commission on
International Religious Freedom. Dr. Land received his
bachelor's degree from Princeton and his doctorate from Oxford.
Mr. Richard Foltin is legislative director and counsel in
the American Jewish Committee's Office of Government and
International Affairs. He serves as the chair of the ABA's
First Amendment Rights Committee and is a member of the
National Council of Church's Committee on Religious Liberty.
Mr. Foltin received his bachelor's degree from New York
University and his law degree from Harvard.
Mr. Samuel Marcosson is an associate dean and professor of
law at the University of Louisville's Brandeis School of Law.
He has previously served as an attorney for the Equal
Employment Opportunity Commission. Mr. Marcosson received his
bachelor's degree from Bradley University and his law degree
from the Yale Law School.
Mrs. Camille Olson is a partner in the law firm of Sayfarth
Shaw and is a member of its Labor and Employment Law Steering
Committee and chair of its Employment Law Committee. She has 20
years of practice in all areas of employment law, including
employment discrimination. Ms. Olson received both her
bachelor's and law degree from the University of Michigan.
You all have watched the lights up there. When they are
green, you have 5 minutes to start, and when the little yellow
one comes on, you have 1 minute. We would appreciate it if you
all would restrict your comments to 5 minutes.
We will begin with Dr. Land.
STATEMENT OF DR. RICHARD LAND, PRESIDENT, ETHICS AND RELIGIOUS
LIBERTY COMMISSION, SOUTHERN BAPTIST CONVENTION
Dr. Land. Thank you, Mr. Chairman. It is an honor to be
here to speak on this legislation.
As you are aware, the Southern Baptist Convention is the
nation's largest non-catholic denomination, with more than 16
million members worshiping in more than 43,000 autonomous
churches in the United States. The Ethics and Religious Liberty
Commission is the official Southern Baptist entity charged by
the Southern Baptist Convention to speak to our nation's moral,
cultural and religious liberty issues.
I appreciate the opportunity to speak to this committee
about the importance of the Workplace Religious Freedom Act of
2005 to Southern Baptists and to all people of faith.
The Southern Baptist Convention believes strongly in the
principle of religious liberty for all Americans of all faiths,
as well as those who espouse no faith. We believe that God has
given this freedom to mankind and that therefore we have a duty
to respect and ensure that freedom.
As recognized by the founders of this nation, freedom of
religion is not merely the right to believe what we want, but
the right to act in conformity with those beliefs. This is
reflected in the historical record of the debates about the
First Amendment, which shows that the framers rejected a
proposed First Amendment text which would have protected
freedom of conscience for a text that protects free exercise.
Given the great amount of time people spend in the
workplace, it makes sense and is consistent with fundamental
American values that more than 30 years ago Title VII of the
Civil Rights Act of 1964 was amended to require employers to
accommodate the religious needs of employees in the workplace
unless doing so would impose an undue hardship on the employer.
It is tragic that this protection of the rights of
Americans of faith has been eviscerated by the federal courts
over the years and that the ability of religious Americans to
have their religious needs accommodated in the workplace relies
upon the benevolence of one's foreman, shop steward or human
resources leadership.
The Workplace Religious Freedom Act is not designed to
revolutionize federal law. It simply seeks to reinstate the
protection Congress put in place years ago and the courts have
eroded.
WRFA is supported not only by most Southern Baptists but by
as a broad and diverse a coalition of faith communities and
organizations that you could assemble, conservatives and
liberals, Catholics, Jews, evangelicals, Protestants, Sikhs,
Muslims and others.
WRFA has also brought together a remarkably diverse set of
bipartisan congressional sponsors. What unites us all is the
simple principle that we will not prejudice particular faiths
or practices, but wish to put a legal standard in place which
says, so long as a religious accommodation will not adversely
affect third parties, whether that third party is the employer,
coworker or clients/customers of the employers, the employee's
religious needs should be accommodated at work.
This principle unites people of diverse faiths because we
all have challenges to our religious observances. This is truly
one of those situations where we protect our own by protecting
everyone. The Sikh ought to have his faith-mandated requirement
to wear a turban accommodated, just as the Baptist who wishes
to dress modestly. The Adventist and Orthodox Jew ought to have
their work schedule accommodated for their holy day, just as
the Catholic, Protestant and evangelical Christian who wishes
not to work on Christmas or Good Friday.
The computer scientist who is suddenly assigned to a
military contract which conflicts with her faith-informed
pacifist beliefs ought ideally to be accommodated with a
reassignment, just as a laboratory technician ought to be
accommodated to not have to work on an embryonic stem-cell
research project over her religious objections.
An array of criticisms have been asserted against WRFA,
some from representatives of the business community who warn
against it being unduly burdensome on employers and some who
warn it imperils civil rights of one sort or another. What all
these criticisms have in common is they are entirely
hypothetical and speculative.
I believe business can accommodate the needs of people of
faith without experiencing any measurable negative effects.
Indeed, it is my conviction that a business that shows a
genuine concern for the personal and spiritual lives of its
employees, in doing so, is going to become a more productive
company because its employees will be happier and more
fulfilled.
WRFA has been road-tested in New York state, and as
attested to in a letter to this subcommittee from Attorney
General Eliot Spitzer, that state's WRFA statute has not proven
to either burden businesses or imperil civil rights. We believe
the results at the national level would be the same.
Thank you.
[The prepared statement of Dr. Land follows:]
Prepared Statement of Dr. Richard Land, President, the Ethics &
Religious Liberty Commission, Southern Baptist Convention
Good morning, I am Dr. Richard Land, President of the Southern
Baptist Convention's Ethics & Religious Liberty Commission. As you are
aware, the Southern Baptist Convention is the nation's largest non-
catholic denomination, with more than 16 million members worshipping in
more than 43,000 autonomous churches in the United States. The Ethics &
Religious Liberty Commission is the official Southern Baptist entity
charged by the Southern Baptist Convention to speak to our nation's
moral, cultural, and religious liberty issues.
I appreciate the opportunity to speak to this committee this
morning about the importance of the Workplace Religious Freedom Act of
2005 to Southern Baptists and to all people of faith. The Southern
Baptist Convention believes strongly in the principle of religious
liberty for all Americans of all faiths, as well as those who espouse
no faith. We believe that God has given this freedom to mankind, and
that therefore, we have a duty to respect and ensure that freedom.
As recognized by the Founders of this nation, freedom of religion
is not merely the right to believe what we want, but the right to act
in conformity with those beliefs. This is reflected in the historical
record of the debates about the First Amendment which show that the
Framers rejected a proposed First Amendment text which would have
protected freedom ``of conscience'' for our text that protects ``free
exercise.''
Given the great amount of time people spend in the workplace, it
makes sense and is consistent with fundamental American values that,
more than 30 years ago, Title VII of the Civil Rights Act of 1964 was
amended to require employers to accommodate the religious needs of
employees in the workplace unless doing so would impose an undue
hardship on the employer. It is tragic that this protection of the
rights of Americans of faith has been eviscerated by the federal courts
over the years and that the ability of religious Americans to have
their religious needs accommodated in the workplace relies upon the
benevolence of one's foreman, shop steward, or human resources
leadership.
The Workplace Religious Freedom Act is not designed to
revolutionize federal law, it simply seeks to reinstate the protection
Congress put in place years ago and the courts have eroded.
WRFA is supported not only by most Southern Baptists, but by as
broad and diverse a coalition of faith communities and organizations
you could assemble-conservatives and liberals, Catholics, Jews,
Evangelicals, Protestants, Sikhs, Muslims, and others. WRFA has also
brought together a remarkably diverse set of bipartisan congressional
sponsors. What unites us all is the simple principle that we will not
prejudge particular faiths or practices, but wish to put a legal
standard in place which says-so long as a religious accommodation will
not adversely affect third parties, whether that third party is the
employer, co-worker or clients/customers of the employer, the
employee's religious needs should be accommodated at work.
This principle unites people of diverse faiths because we all have
challenges to our religious observances, and this is truly one of those
situations where we protect our own by protecting everyone. The Sikh
ought to have his faith-mandated requirement to wear a turban
accommodated just as the Baptist who wishes to dress modestly. The
Adventist and Orthodox Jew ought to have their work schedule
accommodated for their holy day just as the Catholic, Protestant, or
evangelical Christian who wishes not to work on Christmas or Good
Friday. The computer scientist who is suddenly assigned to a military
contract which conflicts with her faith-informed pacifist beliefs
ought, ideally, be accommodated with a reassignment just as a
laboratory technician ought to be accommodated to not have to work on
an embryonic stem-cell research project over her religious objections.
An array of criticisms have been asserted against WRFA, some from
representatives of the business community who warn against it being
unduly burdensome on employers, and some who warn of WRFA imperiling
civil rights of one sort or another. What all these criticisms have in
common is that they are entirely hypothetical and speculative. I
believe business can accommodate the needs of people of faith without
experiencing any measurable negative effects. Indeed, it is my
conviction that a business that shows a genuine concern for the
personal and spiritual lives of its employees is going to be a more
productive company because its employees will be happier and more
fulfilled.
Hopefully, a business will accommodate the religious needs and
convictions of its employees voluntarily, and I am gratified to know
that most go to considerable length to do so. But I know that some
businesses are less responsive to their employees in these regards. In
these cases, some guidelines seem imperative. Both the employer and the
employee need to know what is expected of them and each other. H.R.
1445 provides some very reasonable guidelines to help both the employee
and the employer understand their responsibilities to each other in the
accommodation of the employee's faith requirements in the workplace.
I know this approach works. WRFA has been ``road tested'' in New
York State, which several years ago updated its state religious
accommodation law to track the text proposed in H.R. 1445. As attested
to in a letter to this Subcommittee from New York State Attorney
General Eliot Spitzer, that state's WRFA statute has not proven to
either burden businesses or imperil civil rights. We believe the
results at the national level would be the same.
I appreciate the opportunity to share my convictions and express my
support for this legislation. I will be pleased to make myself or my
staff available to work with you or to answer any questions you may
have, now or in the future.
______
Chairman Johnson. Thank you, sir. We appreciate your
testimony.
Mr. Foltin, you may begin.
STATEMENT OF RICHARD T. FOLTIN, ESQ., LEGISLATIVE DIRECTOR AND
COUNSEL, AMERICAN JEWISH COMMITTEE
Mr. Foltin. Mr. Chairman, Congressman Kildee, members of
the subcommittee, thank you for this opportunity to testify on
the Workplace Religious Freedom Act, an important bipartisan
civil rights and religious liberty legislation introduced by
Representative Mark Souder and Carolyn McCarthy.
My name is Richard Foltin. I serve as legislative director
and counsel in the Office of Government and International
Affairs of the American Jewish Committee.
I also have the privilege of serving as co-chair, together
with James Standish, of the General Conference of Seventh-Day
Adventists of the coalition promoting passage of WRFA. This is
a broad coalition of over 40 religious groups which spans the
political spectrum, reflecting the robust diversity of American
religious life.
With the permission of the chair, I would like to submit
for the record statements and letters of support for WRFA that
have been prepared by several of these organizations.
Chairman Johnson. Without objection, so ordered.
[See Appendix I for all supplemental letters.]
Mr. Foltin. As you know, current civil rights law defines
the refusal of an employer to reasonably accommodate an
employee's religious practice as a form of religious
discrimination unless such accommodation would impose an undue
hardship on the employer.
But, as has already been discussed, this standard has been
so vitiated by the fashion in which it has been interpreted by
the courts as to needlessly force upon religiously observing
employees a conflict between the dictates of religious
conscience and the requirements of the workplace.
Indeed, as has already been pointed out by Congressman
Souder, we are joined today by several employees or former
employers who were placed in just that position. I would like
to make note of a particular one of these individuals, Mr.
James Aligne, who worked as a network designer and systems
engineer for a company in Maryland.
In this role, he worked on a variety of commercial Web
sites. He was assigned to work on a Web site for the sale and
distribution of pornography, in violation of his religious
beliefs. The continued pressure to work on the project led Mr.
Aligne to decide to seek employment elsewhere.
Now, as a highly qualified individual searching for work in
a robust market, he was able to find that alternative work
quickly. But the fact is that the current state of the law, in
too many cases, can leave people in Mr. Aligne's position
unprotected.
And unlike Mr. Aligne, many of those who experience
intolerance in the workplace are low-skilled workers with few
options. Those are the people, more than anyone else, who WRFA
would protect.
The good news is that since the problems in this area turn
on judicial interpretation of existing law, rather than
constitutional doctrine, they are susceptible to correction by
the U.S. Congress. That is what the Workplace Religious Freedom
Act, which is moderate and well-crafted legislation, is
intended to do.
Instead of the not more than de minimis standard
established by the Supreme Court in 1977 in the Hardison case,
WRFA would define ``undue hardship'' as an action requiring
significant difficulty or expense, and would require that to be
considered undue hardship, the cost of accommodation would have
to be quantified and considered in relation to the size of the
employer.
WRFA would also require that to qualify as a reasonable
accommodation, an arrangement must actually remove the
conflict, which would put to rest the notion that a neutral
working arrangement or an attempt to accommodate that fails to
accommodate a religious practice can itself be viewed as a
religious accommodation.
The accommodation might, of course, still be an undue
hardship, but a toothless and confusing definition of
``reasonable accommodation'' should not be utilized to avoid
engaging in ``undue hardship'' analysis.
I note here that on the specific issue of collective
bargaining arrangements, nothing in the bill purports to
override the routine application of a bona fide seniority
system.
Finally, in order to address concerns raised by the
business community, WRFA 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.
I think all of these aspects of WRFA are part of New York
state law, as has been discussed. And I would like to submit
for the record a letter from the attorney general of the state
of New York discussing how that law has worked, without raising
the parade of horribles that some have raised as concerns about
WRFA in that state.
[See Appendix I for all supplemental letters.]
Now, concerns have been raised as to the impact on business
of WRFA. While I would be glad to elaborate on this in Q and A,
I would just like to note that 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, while at the same time
leaving in place a balancing test that still gives substantial
regard to the legitimate needs of business, even as it somewhat
levels the playing field for an employee in need of
accommodation.
In addition, concerns have been raised that implementation
of WRFA will lead to material adverse impacts on third parties
either by somehow legitimizing the harassment of fellow
employees in the workplace in the name of religion or by
limiting access to reproductive health care.
Neither of those scenarios is a realistic scenario, based
on a reasonable reading of this legislation, which makes clear,
as one turns to existing cases which have interpreted existing
law, that the courts are not by any means likely, in fact are
exceedingly unlikely, to read into WRFA the kind of open door
to harassment and denial of essential benefits that some have
suggested would occur.
In sum, the courts clearly take impact on third parties
very seriously as an element of undue hardship. And again and
again, their analysis has not turned on the existing de minimis
standard, and they would come to the same conclusions under the
change in the standard proposed under WRFA.
Thank you.
[The prepared statement of Mr. Foltin follows:]
Prepared Statement of Richard T. Foltin, Esq., Legislative Director and
Counsel, Office of Government and International Affairs, the American
Jewish Committee*
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.
---------------------------------------------------------------------------
*See additional submissions in Appendix I.
---------------------------------------------------------------------------
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.\1\ 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.\2\ 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.\3\ 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.\4\
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.\5\ 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? \6\
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.\7\ 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.\8\
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--for 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:
<bullet> Jehovah's Witness employees who request to opt out of
raising the flag and pledging allegiance at work;
<bullet> A Methodist attorney who requests accommodation not to
work on tobacco litigation;
<bullet> A Quaker (Society of Friends) employee who requests to be
transferred to a division that does not work on armaments;
<bullet> An Orthodox Jewish woman who requests permission not to
shake the hands of male customers;
<bullet> A Hindu employee who requests permission not to greet
guests with the phrase ``Merry Christmas;''
<bullet> A Christian employee who requests to be assigned to work
that does not involve embryonic research;
<bullet> 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.\9\
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,\10\ 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.
Organizations Supporting the Workplace Religious Freedom Act
Agudath Israel of America
American Jewish Committee
American Jewish Congress
Americans for Democratic Action
American Values
Anti-Defamation League
Baptist Joint Committee on Public Affairs
Bible Sabbath Association
B'nai B'rith International
Central Conference of American Rabbis
Christian Legal Society
Church of Scientology International
Concerned Women for America
Council on Religious Freedom
Family Research Council
General Board of Church and Society,
The United Methodist Church
General Conference of
Seventh-day Adventists
Guru Gobind Singh Foundation
Hadassah--WZOA
Institute on Religion and Public Policy
Interfaith Alliance
International Association of
Jewish Lawyers and Jurists
International Commission on
Freedom of Conscience
International Fellowship of
Christians and Jews
Islamic Supreme Council of America
Jewish Council for Public Affairs
Jewish Policy Center
NA'AMAT USA
National Association of Evangelicals
National Council of
the Churches of Christ in the U.S.A.
National Jewish Democratic Council
National Sikh Center
North American Council for
Muslim Women
North American
Religious Liberty Association
Presbyterian Church (USA)
Rabbinical Council of America
Religious Action Center of Reform Judaism
Republican Jewish Coalition
Sikh American Legal Defense
Education Fund
Sikh Council on Religion and Education
Southern Baptist Convention,
Ethics and Religious Liberty Commission
Traditional Values Coalition
Union of Orthodox Jewish Congregations
Union for Reform Judaism
United Church of Christ
Office for Church in Society
United Synagogue of Conservative Judaism
ENDNOTES
\1\ Section 701(j) of Title VII provides, with respect to the
definition of ``religion'' as follows:
\1\ The term ``religion'' includes 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 practice without undue
hardship on the conduct of the employer's business.
\1\ This language, in essence, codifies a 1967 Equal Employment
Opportunity Commission guideline that provided a definition of
``religion'' for purposes of enforcement of the law prohibiting
employment discrimination on the basis of religion. In enacting this
provision, however, the Congress modified the guideline so as to shift
from the employee to the employer the burden of proving that the
accommodation sought is not reasonable.
\2\ E.g., Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1996),
and Beadle v. Hillsborough County Sheriff's Dep't, 29 F.3d (11th Cir.
1995), cert. denied in both, 115 S. Ct. 2001 (1995).
\3\ E.g., United States v. Bd. of Education, 911 F.2d 882 (3d Cir.
1990).
\4\ Justice Marshall's discussion of section 701(j)'s legislative
history is worthy of note. Section 701(j) was introduced by Senator
Jennings Randolph explicitly to rebut cases suggesting that ``to excuse
religious observers from neutral work rules would `discriminate against
* * * other employees' and `constitute unequal administration of the
collective-bargaining agreement.' [citing Dewey v. Reynolds Metals Co.,
429 F.2d 324 (6th Cir. 1970), aff'd by an equally divided Court, 402
U.S. 689 (1971)] * * * The primary purpose of the amendment, [Senator
Randolph] explained, was to protect Saturday Sabbatarians like himself
from employers who refuse `to hire or continue in employment employees
whose religious practices rigidly require them to abstain from work in
the nature of hire on particular days.' [citing 118 Cong. Rec. 705
(1972)] His amendment was unanimously approved by the Senate on a roll-
call vote [citing 118 Cong. Rec. 731 (1972)], and was accepted by the
Conference Committee [cites omitted], whose report was approved by both
Houses. 118 Cong. Rec. 7169, 7573 (1972). Yet the Court today, in
rejecting any accommodation that involves preferential treatment,
follows the Dewey decision in direct contravention of congressional
intent.'' 432 U.S. at 89.
\5\ The court also noted, in yet another example of the courts'
restrictive reading of the undue burden standard, that the hospital was
not obligated to accommodate Brener's religious observance if that
would lead to ``disruption of work routines and a lessening of morale
among other pharmacists.''
\6\ See, in this regard, Shelton v. University of Medicine &
Dentistry of New Jersey, 223 F. 3d 220 (3d Cir. 2000) (opinion by Judge
Scirica with Judges Alito and Aldisert concurring). While the nurse's
claim was dismissed in that case for her failure to accept the
hospital's proffer of a reasonable accommodation, the federal court of
appeals asserted, in the context of a discussion of ``undue burden,''
that ``we believe public trust and confidence requires that a public
hospital's health care practitioners--with professional ethical
obligations to care for the sick and the injured--will provide
treatment in time of emergency.'' 223 F.3d at 228. Nothing in this
statement suggests that the court's analysis would be different in
light of the change contemplated by WRFA.
\7\ See, e.g., Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d
470 (7th Cir. 2001) (case turns on employer's having offered a
reasonable accommodation, not undue hardship issue); Parrott v.
District of Columbia, 1991 WL 126020 (strongly worded discussion of
undue hardship requested accommodation would pose for employer suggests
that WRFA standard would not have made a difference in result); Bruff
v. N. Miss. Health Services, Inc., 244 F.3d 495 (5th Cir. 2001)
(similarly); Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir.
1995) (case turns on employee's failure to accept a reasonable
accommodation, not undue burden); Johnson v. Halls Merchandising, Inc.,
1989 WL 23201 (W.D. Mo.) (plaintiff's claim dismissed because the
defendant attempted to reasonably accommodate plaintiff's religious
practices but ``plaintiff did not make any effort to cooperate with her
employer or to accommodate her beliefs to the legitimate and reasonable
interests of her employer, i.e., to operate a retail business so as not
to offend the religious beliefs or non beliefs of its customers'').
\8\ In 2002, New York State enacted a state version of WRFA, N.Y.
Executive Law Sec. 296(10). Similarly, in 1997, President Bill Clinton
adopted guidelines on the treatment of religion in the federal
workplace that functionally strengthened the religious accommodation
standards of that workplace. These enactments have not led to any
parade of horribles.
\9\ This carving up of religious claims into two different
categories is both philosophically troubling and possibly
constitutionally problematic, as it opens WRFA up to claims that it
violates the Establishment Clause by privileging some religious beliefs
over others. See Estate of Thornton v. Calder, Inc., 472 US 703 (1985),
and G. Holland, ``High Court Hears Hallucinogenic Tea Case,''
washingtonpost.com at http://www.washingtonpost.com/wp-dyn/content/
article/2005/11/01/AR2005110101103.html , posted November 1, 2005,
reporting on that day's oral argument in Gonzales v. O Centro Espirita
Beneficiente Unaiao Do Vegeta , October Term, 2005, No. 04-1084
(Breyer, J., told the attorney for the Government ``that he saw `a
rather rough First Amendment problem' of discriminating among religions
if government policy allows the Native-American Church to use peyote as
a sacramental substance, while other sect's adherences [sic] are
forbidden to use other substances.'')
\10\ Although the continued vitality of the Lemon test frequently
comes up for question, it is useful to apply that analysis in this
context because it is a restrictive reading of what government action
is allowed pursuant to the Establishment Clause.
______
Chairman Johnson. Thank you, sir.
Mr. Marcosson, you are recognized.
STATEMENT OF SAMUEL A. MARCOSSON, ASSOCIATE DEAN AND PROFESSOR
OF LAW, LOUIS D. BRANDEIS SCHOOL OF LAW, UNIVERSITY OF
LOUISVILLE
Mr. Marcosson. Thank you, Mr. Chairman, Representative
Kildee, members of the subcommittee. I am Samuel Marcosson,
associate dean and professor of law at the Brandeis School of
Law at the University of Louisville. I am honored to be with
you this morning as you consider H.R. 1455.
I teach a number of subjects that are at least relevant to
this bill, including constitutional law, employment
discrimination and disability law. I also spent 8 years working
in the Office of General Counsel at the Equal Employment
Opportunity Commission, during which time I litigated, among
others, the appeals of a number of cases raising issues of
religious discrimination and accommodation of religious
beliefs.
My views on WRFA begin with this essential premise:
Government must, under the Establishment Clause, be neutral
between religions and between religion and non-religion,
neither favoring or disfavoring religion or any particular
sect.
In my view, as written, WRFA risks and raises substantial
concerns about compliance with the Establishment Clause.
Compulsion by government, as WRFA would of course represent, to
favor religion may violate this requirement.
The Supreme Court's adoption of the de minimis standard in
TWA v. Hardison was done at least in part and implicitly in
recognition of the concern that any additional burden on
businesses might in fact represent a favoring of religion
perhaps in violation of the Establishment Clause.
That implicit conclusion about the concerns was made
explicit in the later decision of the case of Thornton v.
Caldor in which the court actually struck down a Connecticut
statute because it went too far in accommodating religious
beliefs, in that case Sabbatarian beliefs of workers.
So it is quite clear that this Congress, in my view, must
be concerned and sensitive to the possibility that WRFA, like
the Connecticut statute, but unlike Title VII, may go too far.
I would like to raise a couple of concerns that I have that
suggest that it may cross that line into non-neutrality.
First, the ``accommodation'' and ``undue hardship''
provisions in WRFA are patterned after the Americans With
Disabilities Act, which is universally understood to be non-
neutral as to disability. That non-neutrality is not a
difficulty when it comes to disability law, but it is a
substantial concern when it comes to religion.
Indeed, in at least one respect, WRFA goes further than the
ADA, at least as some courts have interpreted the Disabilities
Act, because it requires that reasonable accommodation actually
eliminate the conflict in order to be deemed reasonable.
The Seventh Circuit and others have held in ADA cases that
an accommodation might in fact be reasonable even if it does
not eliminate the conflict. So we have a statute, the ADA, that
is already seen as non-neutral and WRFA, a proposal that goes
even further than that, and perhaps would therefore be seen by
the courts also as non-neutral when it comes to religion.
Moreover, it is at least arguable that employers might be
required under WRFA to create and honor a forum for religious
speech by their employees in the workplace, a forum they would
otherwise deny to non-religious speech because they do not wish
to be associated with it.
The compulsion on an employer to associate with religious
or any speech raises substantial concerns when it is religious
because, as I have said, it would be at least arguably non-
neutral. And even if it were neutral, it might very well be
seen to be contrary to the Supreme Court's decision in Boy
Scouts of America v. Dale, in which the court found a First
Amendment free speech right for an association, individual or
entity not to be compelled to associate with views with which
it disagrees or that it finds controversial.
Third, WRFA may also create conflict among employees. Under
section 701(j) as it currently is written, employers can point
to conflicts between coworkers as a basis for undue hardship,
and prevail on the theory that it is almost always at least de
minimis, if not more hardship to have to deal with conflict
among coworkers. WRFA as written does not cite specifically
conflict among coworkers as a form of significant difficulty or
expense, nor does it talk about the problem of the employer
being able to have the right to control its message.
In my view, the proposal would be significantly improved
and its constitutional difficulties ameliorated if two things
were done.
In the section that lists the factors the courts are
supposed to look to in determining whether an accommodation
raises substantial difficulty or expense, rather than pointing
only to financial factors as the legislation does currently, if
it included conflicts among employees as a factor toward
significant difficulty, and if it included reference to the
employer's ability to control the message it wishes to
transmit.
Those two changes, those two amendments, in my view, would
significantly increase the changes that WRFA would be upheld,
were it to be challenged on constitutional grounds in the
federal courts.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Marcosson follows:]
Prepared Statement of Samuel A. Marcosson, Associate Dean and Professor
of Law, Louis D. Brandeis School of Law, University of Louisville
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 Sec. 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.\1\
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.\2\
The WRFA as a Non-Neutral Requirement
Courts may view the WRFA as more than a neutral non-discrimination
requirement.\3\ The accommodation standard it contains in Section 2(a)
is patterned after the provision in the Americans with Disabilities
Act,\4\ 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.\5\
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,\6\ 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.\7\
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.\8\ 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 Sec. 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.\9\ 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 Sec. 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.\10\ 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,\11\ figures that mirror
the range of such findings under the other statutes the EEOC
enforces.\12\ 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 Sec. 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 Sec. 701(j). It has
been well-documented that ADA cases have fared dismally in federal
court.\13\ 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,\14\ (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.
ENDNOTES
\1\ Hardison, 432 U.S. at 84-85 (stressing reluctance to interpret
Title VII to require employer to allocate ``the privilege of having
Saturdays off * * * according to religious beliefs,'' and stating that
requiring more than de minimis hardship would constitute ``requir[ing]
an employer to discriminate against some employees'').
\2\ It is important to emphasize, however, that the WRFA does not
go as far as the Connecticut law struck down in Estate of Thornton.
That law gave religious employees an absolute right to their Sabbath as
a day off, with no exception for the employer based on hardship. The
WRFA is not absolute, nor does it suffer from the other flaw the Court
pointed to, which is the singling out for special favor of one
particular religious practice or belief above all others.
\3\ See Estate of Thornton, 472 U.S. at 712 (O'Connor, J.,
concurring) (distinguishing Title VII and Connecticut statute because
Title VII can be seen as a neutral anti-discrimination law, whereas the
state law would be perceived as an endorsement of religion).
\4\ 42 U.S.C. Sec. 12112(5)(A).
\5\ 42 U.S.C. Sec. 12111(10)(A).
\6\ See, e.g., Rosenberger v. Rector of the Univ. of Virginia, 515
U.S. 819 (1995) (government may not exclude religious viewpoint from a
public forum).
\7\ This also implicates the Supreme Court's decision in Boy Scouts
of America v. Dale, 530 U.S. 640 (2000). Employers might well raise
substantial First Amendment issues if they are compelled to allow
speech in the workplace with which they do not wish to be associated.
\8\ See Virts v. Consolidated Freightways, 285 F.3d 508 (6th Cir.
2002) (employee's requested accommodations would interfere with co-
workers' seniority rights under collective bargaining agreement);
Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995)
(employer not required to accommodate religious expression that co-
workers perceived as offensive and harassing).
\9\ The WRFA would specify as factors in the undue hardship inquiry
``the identifiable costs of the accommodation,'' and ``the overall
financial resources and size of the employer involved, relative to the
number of its employees.'' Critically, nothing in the WRFA would direct
courts to consider non-financial factors such as those discussed in the
text.
\10\ ``Charge Statistics, FY 1992 Through FY 2004,'' available at
http://www.eeoc.gov/stats/charges.html.
\11\ ``Religion-Based Charges, FY 1992-FY 2004,'' available at
http://www.eeoc.gov/stats/religion.html.
\12\ For example, when it came to ADA charges, the Commission has
found reasonable cause from a low of 1.1% of charges resolved (1992),
to a high of 13.3% in 2001. See ``Americans with Disabilities Act (ADA)
Charges FY 1992--FY 2004, available at http://www.eeoc.gov/stats/ada-
charges.html. Similarly, under the Age Discrimination in Employment
Act, reasonable cause findings made up 2.2% of resolutions in 1992, and
reached a peak of 8.3% in 1999. See ``Age Discrimination in Employment
Act Charges FY 1992--FY 2004, available at http://www.eeoc.gov/stats/
adea.html.
\13\ See Kathryn Moss, et al., Prevalence and Outcomes of ADA
Employment Discrimination Claims in the Federal Courts, 29 Mental and
Physical Disability Law Reporter 303, 303 & nn. 16-24 (2005) (citing
studies).
\14\ For example, many federal courts grant summary judgment on the
ground that plaintiffs have produced insufficient evidence of the
employer's motive, even when they have put forward proof that the
employer's proffered, non-discriminatory reason is pretextual. See,
e.g., Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996)
(en banc) (summary judgment may be granted for the employer even if the
plaintiff has substantial evidence of pretext). Such evidence should be
sufficient to allow the plaintiff to put his or her case to the test
before a jury.
______
Chairman Johnson. Thank you, sir.
Ms. Olson, you are recognized.
STATEMENT OF CAMILLE A. OLSON, ESQ., PARTNER, SEYFARTH SHAW
LLP, ON BEHALF OF THE U.S. CHAMBER OF COMMERCE
Ms. Olson. Thank you, and good morning, Mr. Chairman and
members of the subcommittee. I am pleased to appear today to
testify on behalf of the U.S. Chamber of Commerce in connection
with the Workplace Religious Freedom Act of 2005.
Especially listening to the testimony this morning and
reflecting on my background as a labor and employment attorney
as practiced in Chicago, Illinois, over the last 20 years, as
well as teaching employment discrimination law to students at
Loyola University and DePaul University in Chicago, testifying
on behalf of the U.S. Chamber of Commerce, the chamber is
really here representing the largest groups of employers in the
country. It is one of the largest business federations,
representing over 3 million businesses and organizations of all
sizes, industry sectors and geography. I serve on the chamber's
Labor Relations Committee, as well as its Subcommittee on
Employment Nondiscrimination Issues.
The chamber has serious concerns regarding the Workplace
Religious Freedom Act with respect to its affect on coworkers,
employees in the workplace, as well as with respect to the
running of an employer's business.
Let me begin my discussion by referencing Title VII because
I believe, listening to the testimony this morning, that there
is some confusion regarding an employer's existing obligations
under Title VII, as well as an employee's rights, both in terms
of its rights substantively under the statute, as well as its
rights to damages, including compensatory and punitive damages,
and the right to a jury trial in connection with these issues.
Title VII's paramount concern is to eliminate
discrimination in employment, including discrimination against
individuals based on their religious beliefs.
Unlike the Americans With Disabilities Act, however, and
other statutes, under Title VII, the prohibition against
discrimination based on someone's religious preferences also
includes a prohibition against discrimination with respect to
somebody who does not hold the same religious practices.
Title VII's religious discrimination claims currently
proceed under a two-part framework. I would like to describe
that to you so you understand the current analysis that
employers are going through throughout the country right now
under Title VII.
First of all, an employee has to show that it has a bona
fide religious practice or belief that conflicts with the job
duty, provides notice to the employer about the belief or
conflict, and the employee then suffers an adverse action or
consequence because of the conflict between that belief and a
job duty.
Once that is met, the employer then has the burden of proof
of showing that it initiated good-faith efforts to show that it
could come up with a reasonable accommodation of the religious
practice. And if it can, it needs to work with the employee to
attempt to reasonably accommodate the religious practice
without an undue hardship.
Let me stop one moment and just reflect on the issue under
Title VII of the many cases that have come to bear really over
the last 10 years. Many of those cases involving religion
involve a wide variety of different religions. Religion is
defined as a purely moral and ethical belief. It can be
religion so long as it is sincerely held with the strength of
religious beliefs. It need not be acceptable, logical,
consistent or comprehensible to others.
Recent Title VII cases involving religion and recognizing
different accommodation issues that employers engaged in with
employees took into account religions such as the Church of
Body Modification, in which an employee's requested
accommodation related to be able to display various body
modifications including scarrings, including piercings,
including branding and cutting of the person's body. It also
included another religion named The World Church of the
Creator, which preaches ``Creativity'' beliefs, the central
tenet of which is white supremacy.
As the Supreme Court has stated, it is no business of
courts to say what is a religious practice or activity. Title
VII's ``reasonable accommodation'' framework is an effort to
reconcile conflicts between religious beliefs and business
concerns. It requires an employer today to provide an
accommodation to an employee so long as it is not an undue
hardship. The burden is on the employer to support a claim of
undue hardship with proof of an actual imposition on coworkers,
a disruption of work-related services or products within the
particular factual context that has arisen.
``Undue hardships'' in connection with Title VII analysis,
as well as the ADA analysis, includes an analysis of both
economic costs, as well as non-economic costs such as lost
business, hiring more employees, lost efficiencies,
compromising seniority rights of employees, the safety of
employees, the health of patients, the integrity of products
that are produced by an employer, as well as requiring certain
employees to shoulder more than their share of potentially
dangerous or less appealing work or work shifts, as well as
accommodating and reviewing an employer's policies relating to
diversity, nondiscrimination and non-harassment, as well as an
employer's compliance with the FDA, with OSHA, with state and
federal government regulations with respect to safety and
health.
The concern that the chamber has with respect to the
existing bill as drafted is one which really relates to the
fact overall that there are current safeguards in Title VII
that are today in my practice and in the practice of employers
throughout the country are reasonably accommodating both the
business interests, along with the interests of all employees.
I would like to just mention, if I can here in summing up,
four different specific concerns that the chamber has with
respect to the language of this bill.
The first relates to the issue of preferential treatment of
employees, and whether because of their religious beliefs with
respect to time off and other scheduling issues, that this
raises an issue----
Chairman Johnson. Can you end pretty quick please?
Ms. Olson. I am sorry. Yes, your honor.
With respect to a number of different issues that have been
raised previously, I think it is also important to note that,
as written, this bill includes an absolute prohibition against
even engaging in the interactive process with respect to
requests for time off and grooming and clothing issues because
those issues are removed from the definition of an ``essential
function,'' so that it would eliminate that discussion between
employers and employees.
I think it is also important just to note that while this
does borrow the framework of the ADA, it is missing some of the
safeguards that the ADA has and it is inapplicable in certain
ways because the ADA, as described earlier by panelists, does
not include certain anti-discrimination prohibitions.
With that, I will sum up my comments and thank you for the
opportunity to provide them today.
[The prepared statement of Ms. Olson follows:]
Prepared Statement of Camille A. Olson, Esq., Partner, Seyfarth Shaw
LLP, on Behalf of the U.S. Chamber of Commerce
Good morning Mr. Chairman and members of the Subcommittee. I am
pleased to appear this morning to testify on H.R. 1445, the Workplace
Religious Freedom Act of 2005 (``WRFA''). I am a partner with the
national law firm of Seyfarth Shaw LLP, where I co-chair the Labor and
Employment Group's Complex Litigation Practice. In addition to my
private law practice which has focused on employment discrimination
issues for over twenty years, I have also regularly taught employment
discrimination to law students at DePaul University and Loyola
University in Chicago, Illinois.
I am testifying today on behalf of the United States Chamber of
Commerce. The Chamber is the world's largest business federation,
representing more than three million businesses and organizations of
every size, industry sector and geographical region. I serve on the
Chamber's Labor Relations Committee as well as its subcommittee focused
on employment nondiscrimination issues.
Respect for the diverse religious beliefs in our society is
important for employers and employees alike. Employers have experience
with the law's requirements that not only prohibit discrimination based
on religious beliefs, but also require reasonable accommodation of
religious practices and observances. However, accommodating certain
religious practices or observances of individual employees is sometimes
difficult in light of their impact on other employees as well as other
legitimate business concerns.
The Chamber has serious concerns with the Workplace Religious
Freedom Act. The legislation appears to go too far in terms of which
accommodations must be deemed reasonable, especially in the case of
dress codes and the scheduling of employees. We are also concerned that
the bill would require employers to accept accommodations for
individual employees that may create a hostile work environment for
other employees. It also raises numerous questions of practicality and
fairness. We urge the Subcommittee to carefully consider these issues
and proceed cautiously.
Current Law
Title VII of the Civil Rights Act of 1964 prohibits employment
discrimination against individuals based on their religious beliefs. In
addition to protecting employee beliefs, Title VII also provides
protection for the religious observances and practices of employees,
requiring that employers not discriminate based on those observances or
practices unless the employer cannot reasonably accommodate the
observance or practice without undue hardship.
Employers frequently face religious accommodation issues. Often
accommodations are easily agreed upon, for example, by permitting
employees to swap shifts or permit limited time off during a shift to
allow employees time to pray or engage in other religious practices.
However, other religious accommodation requests can be very difficult
for employers to accommodate in the workplace. Among other things,
accommodation requests involve assessing whether or not an
accommodation can be made, the scope of the accommodation, and the
hardship created by accommodating the request (including the impact of
the accommodation on an employer's business, customers, and other
employees). Importantly, employers must consider the interaction of
other laws as well, including, for example, their obligations under the
National Labor Relations Act, in addition to their desire to keep the
workplace free from harassment based on one's religious beliefs.
In the context of religious accommodation, Title VII has been
criticized as a result of the Supreme Court's interpretation of Title
VII's undue hardship exception.\1\ Critics claim that the Court
significantly weakened the law and that employers may deny requests to
accommodate religious practices based on demonstration of a de minimus
burden on the employer. It is important to note, however, that under
the Supreme Court's interpretation of the accommodation obligations
under Title VII, employer obligations are in fact quite substantial.
For example, courts have found employer adherence to ``no-beard''
in the workplace policies based on ``professional appearance'' as
opposed to safety and health issues as violative of an employer's
obligations to reasonably accommodate an employee's desire to maintain
a bearded appearance in the workplace.\2\ Similarly, employee requests
for exceptions to employer work schedules have also been found to
violate Title VII. Title VII's existing reasonable accommodation
obligations have been determined to include an obligation to meet
reasonable scheduling requests, including employee requests to not be
scheduled on Easter Sunday to attend both morning and evening
services,\3\ Jewish employees' requests for leave on Yom Kippur,\4\ and
individualized employee requests for days off to attend religious
services relating to family members.\5\ In addition, courts have
recognized the ability of employees to engage in religious conduct that
does not interfere with their official job duties or, in the case where
the employee is a manager or supervisor, does not create an environment
of religious favoritism such as a supervisor's spontaneous prayers and
Bible references.\6\
Religious Practices
It is clear that the term ``religious practices'' has been broadly
defined under Title VII. EEOC guidance defines the phrase as any
``moral or ethical beliefs as to what is right and wrong which are
sincerely held with the strength of traditional religious views.'' \7\
In practice, both the EEOC and federal courts have upheld this broad
interpretation. For example, in 1996, the Orange County Transit
Authority discharged an employee who refused to hand out coupons for
free hamburgers because he was a vegan. An EEOC area office determined
that the employer discriminated against the employee based on his
religious beliefs.\8\
In another case, Peterson v. Wilmur Communications,\9\ a federal
court held that an employee's racist views qualified as religious
beliefs. In this case, the employee was a member of the World Church of
the Creator, an organization preaching ``Creativity,'' the central
tenet of which is white supremacy. The Court noted: ``The White Man's
Bible, one of Creativity's two central texts, offers a vision of a
white, supremacist utopian world of '[b]eautiful, [h]ealthy [white]
people,' free of disease, pollution, fear and hunger (citation
omitted).'' \10\ According to The White Man's Bible, ``This world can
only be established through the degradation of all non-whites * * * the
survival of white people must be ensured 'at all costs'.'' \11\ In
assessing whether the employee's beliefs qualified as religious and
therefore within the scope of Title VII, the court said the question is
not whether the employee's beliefs are moral or ethical in the
subjective sense, but whether the belief system ``espouse[s] notions of
morality and ethics and suppl[ies] a means from distinguishing right
from wrong.'' \12\ The court concluded that:
Creativity has these characteristics. Creativity teaches that
followers should live their lives according to what will best foster
the advancement of white people and the denigration of all others. The
precept, although simplistic and repugnant to the notions of equality
that undergird the very non-discrimination statute at issue, is a means
from determining right from wrong.'' \13\
Another example is EEOC v. Red Robin Gourmet Burgers, Inc.,\14\
involving a restaurant server and practicing Kemetecist who explained
that Kemetecism was an ancient Egyptian religion, which he practiced by
obtaining religious tattoos encircling his wrists. He further claimed
that covering his tattoos was a sin, and thus he could not comply with
the restaurant's appearance policy prohibiting employees from having
visible tattoos. Under Title VII the employer was required to
accommodate the employee by allowing him to display the tattoos.\15\
These cases, although perhaps factually unusual, illustrate how
broad the concept of religious practices is. The practical effect is
that employers simply have no ability to question the legitimacy of
employee claims that particular practices, no matter how unusual, are
religious.
With the broad definition of religious practice in mind, we can
turn to the current reasonable accommodation standard and how WRFA
might impact that standard.
Changing the ``Undue Hardship'' Standard
The stated intent of proponents of WRFA is to change the standard
used in determining whether an accommodation would impose an undue
hardship. WRFA's principle provisions would prevent a proposed
accommodation from being considered an undue hardship unless it
required significant difficulty or expense for the employer. Precisely
how this provision would be interpreted by the courts is unclear, but
the provision clearly moves the line and employers would be legally
obligated to accommodate more requests than they are today.
In assessing whether it is appropriate to change the standard, it
is important to look at accommodation requests that courts have found
to impose an undue burden under current law and assess how WRFA might
impact similar cases in the future.
Recently, my firm litigated a case that considered the tension
between an employer's dress code and an employee's religious beliefs.
In this case, Cloutier v. Costco Wholesale Corp.,\16\ a conflict arose
between the provisions in the employer's dress code that prohibited
facial jewelry and the employee's religious beliefs as a member of the
Church of Body Modification. For those not familiar with the church, it
includes members who participate in such practices as piercing,
tattooing, branding, cutting, and body manipulation. It seeks to have
its members grow as individuals through body modification and its
teachings, and to be confident role models in learning, teaching, and
displaying body modification.
The employer's dress code was established to cultivate a neat,
clean, and professional image. The employee would not accept two
offered accommodations, wearing a band-aid over the jewelry or wearing
a plastic retainer in place of the jewelry, instead insisting that the
only acceptable accommodation would be an exemption from the dress
code.
Ultimately, the First Circuit ruled that forcing the employer to
exempt the employee from the dress code would be an undue hardship. The
court noted that the employer had the discretion to require the dress
code and mandating the exemption would adversely affect the company's
public image. If the burden were shifted and the employer were required
to show that the exemption would have caused a significant difficultly
or expense, it is certainly unclear whether the employer would have
been able to insist on its dress code or its proffered accommodations.
Another case, Swartzentruber v. Gunite Corp.,\17\ illustrates how
accommodating one person could contribute to creating a hostile work
environment for others. In this case, the employee had a tattoo on his
forearm of a hooded figure standing in front of a burning cross. The
employee was a member of the Church of the American Knights of the Ku
Klux Klan and stated that the tattoo depicted one of the Church's seven
sacred symbols. After other employees complained about the tattoo, the
employer asked the employee to keep the tattoo covered at work, except
when necessary to wash. While this case was ultimately decided on other
grounds, how would WRFA's new undue burden standard apply? Would the
employer be required to permit the employee to keep his tattoo visible?
Would that contribute to claims of a hostile work environment by other
employees under Title VII's nondiscrimination provisions related to
race?
A number of recent cases illustrate the growing tension between
accommodating employee requests to adhere to their religious beliefs in
the workplace, and an employer's desire to maintain a place of business
that does not impose an employee's religious views on customers as well
as meet the Company's obligation to maintain a work environment free
from harassment for all employees. In these cases, courts held that:
<bullet> An employer properly discharged a telephone triage nurse
who refused to stop making religious comments to patients calling a
hotline; \18\
<bullet> A supervisor who continually lectured a homosexual
subordinate about her sexual orientation describing it as a sin was
properly terminated for violating the company's reasonable policy
against harassment, including harassment based on sexual orientation;
\19\
<bullet> A social worker who tried to drive out the demons in a
client having a seizure instead of calling for medical help was
properly fired for violating agency rules; \20\ and
<bullet> An employer properly terminated an employee who refused to
accept her employer's accommodation of permitting her to end her
correspondence with employees by writing, ``Have a Blessed Day,'' but
refusing to allow the phrase to be inserted into all writings with
customers and vendors.\21\
As the above examples illustrate, one important reason that
employers might deny a requested accommodation is that it may create a
hostile work environment for other employees. To ensure that they are
not fostering a workplace that could be a hostile work environment, it
is common for employers to adopt neutral policies designed to prohibit
intimidation and harassment of all kinds. Shifting the undue burden
standard creates conflict with such a policy and leaves the employer in
the difficult position of deciding which provisions of Title VII to
violate and which to comply with.
Other Concerns
In addition to the concerns discussed above, WRFA raises numerous
other serious concerns.
Essential Functions and Dress Codes and Scheduling
As part of its new framework, WRFA would require employers to
determine essential functions of employment positions which, among
other things, cannot include practices relating to clothing or taking
time off. These provisions contain no exceptions. However, there are
certainly instances where dress codes and scheduling are essential
functions of a job. For example, if a dress code is required to protect
the employee's safety, then it should be classified as an essential
function. Courts have already grappled with this issue and found, under
current law, that even though an employee's religion required an
unshaven face, a tight fitting respirator mask requirement was
appropriate for employees working around toxic gases.\22\ As another
example, consider a dress code that, for safety purposes, requires an
employee to wear pants while working around machines.\23\ WRFA does not
permit such concerns to be included as essential functions of a job.
Scheduling may also be an essential function of the job. On one
extreme, consider an employer that is only open for business one or two
days a week, for example, on weekends. The ability to work Saturdays
and Sundays would then truly be an essential function of the job. Other
establishments may have busy seasons during the year where they need
all of their employees to be available. For example, the ability to be
available for work preceding Christmas might well be an essential
function of jobs in the retail sector.
ADA Model
WRFA, by adopting an ``essential functions'' test, appears to
borrow from the Americans with Disabilities Act and the Rehabilitation
Act of 1973. However, it is important to note one major difference that
exists in accommodating religious practices that does not exist in
accommodating individuals with disabilities. It is relatively
straightforward for employers to assess the types of physical demands
that will be made of employees in particular positions. Therefore, an
analysis of determining essential functions of a job for purposes of
the ADA is more easily understood. However, given the very broad
definition of religion, it will be very difficult, if not impossible,
for employers to predict what fundamental parts of a job will conflict
with an employee's religious practices. We urge the Committee to
consider the practical difficulties that such a requirement will impose
upon employers.
Preferential Treatment
The Supreme Court has made it clear that laws that have the primary
effect of advancing particular religious practices violate the
Constitution's Establishment Clause.\24\ It is unclear just how far
WRFA changes the test as to which accommodations would cause undue
hardship. However, it appears to make it difficult for employers to
deny requests for time off to attend to religious services. In addition
to Constitutional concerns, to the extent that the bill would give
employees of particular religions a preference over others in taking
time off, serious questions of fairness and potential conflict with
labor union seniority systems would be implicated.
Conclusion
In conclusion, the Chamber has serious concerns with the Workplace
Religious Freedom Act. Mr. Chairman and members of the committee, thank
you for the opportunity to share the Chamber's concerns with the
Workplace Religious Freedom Act with you today. Please do not hesitate
to contact me or the Chamber's Labor, Immigration, and Employee
Benefits Division if we can be of further assistance in this matter.
ENDNOTES
\1\ See Trans World Airlines v. Hardison, 432 U.S. 865 (1977).
\2\ Carter v. Bruce Oakley, Inc., 849 F.Supp. 673 (E.D. Ark. 1993).
\3\ Pedersen v. Casey's General Stores, Inc., 978 F. Supp. 926 (D.
Neb. 1997).
\4\ EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997).
\5\ Heller v. EBB Auto Co., 8 F.3d 1433 (9th Cir. 1993).
\6\ Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995), cert denied,
516 U.S. 1158 (1996).
\7\ 29 C.F.R. Sec. 1605.1.
\8\ Anderson v. Orange County Transit Authority, No. 345960598
(Aug. 20, 1996).
\9\ 205 F. Supp. 2d 1014 (E.D. Wis. 2002).
\10\ Id. at 1016.
\11\ Id.
\12\ Id. at 1023.
\13\ Id.
\14\ No. 04-1291, 2005 WL 2090677 (W.D. Wash. Aug. 29, 2005).
\15\ See, generally, Donna D. Page, Veganism and Sincerely Held
'Religious' Beliefs in the Workplace: No Protection Without Definition,
7 U. PA. J. LAB. & EMP. L. 363 (Winter, 2005).
\16\ 390 F.3d 126 (1st Cir. 2004), cert. denied, 125 S.Ct. 2940
(2005).
\17\ 99 F. Supp. 2d 976 (N.D. Ind. 2000).
\18\ Morales v. McKesson Health Solutions, LLC, 2005 U.S. App.
LEXIS 4629 (10th Cir. Mar. 22, 2005), cer.t denied 2005 U.S. LEXIS 7490
(Oct. 11, 2005).
\19\ Bodett v. CoxCom Inc., 366 F.3d 736 (9th Cir. 2004).
\20\ Howard v. Family Independence Agency, 2004 Mich. App. LEXIS
410 (Mich. Ct. App. 2004) (unpublished).
\21\ Anderson v. U.S.F. Logistics Inc., 274 F.3d 470 (7th Cir.
2001).
\22\ Bhatia v. Chevron U.S.A., Inc., 734 F. 2d 1382 (9th Cir.
1984).
\23\ Killebrew v. Local 1683 AFSCME, 651 F. Supp. 95 (W.D. Ky.
1986).
\24\ Estate of Thornton v. Caldor, 472 U.S. 703 (1985).
______
Chairman Johnson. Thank you, ma'am. I appreciate the
testimony.
I recognize Mr. Kline for 5 minutes.
Mr. Kline. Thank you, Mr. Chairman.
I thank the panel for being with us today.
I have a line of questioning I was going to go down, but I
am going to change and pick up on what Ms. Olson was talking
about, a dress code, just a minute ago.
I am not sure if I understood what you said. Do I
understand the language in this bill, are you saying that this
excludes the ability to address dress codes? In other words, if
someone is by religious practice required to wear a dress
instead of pants, is that covered here or not.
Ms. Olson. Yes. There are two provisions in the existing
bill which addresses that. The reading of the statute is that
if there is an essential function of a job, the essential
function cannot prohibit an employee from wearing certain
clothing or taking certain time off for a holy day, for
example. Those are removed from the definition of what is an
``essential function.''
If something is not an essential function of the job, then
the employer cannot even engage in that reasonable
accommodation process. It is a marginal function and simply has
to be eliminated, resolved in favor of the employee in terms of
the conflict.
So both in terms of subparagraph (2)(b) in terms of the
definition of ``essential function,'' as well as the separate
subparagraph that specifically says you must remove the
conflict, both of those subparagraphs require that those two
issues not even be considered in terms of an interactive
process, and that would provide a significant burden both for
employers, as well as we believe jeopardize the safety and
health of employees in the workforce.
Mr. Kline. Thank you.
Would anyone else on the panel like to address that?
Mr. Foltin. Yes. I would like to respond on that exact
issue.
I do not agree with that characterization of what WRFA
would do. The ``essential function'' provision is in fact a new
provision. Existing religious accommodation law says nothing
one way or another about whether an employee must be able to
perform the essential function of a job in order to receive
religious accommodation. That provision was put in in response
to what we understood were business concerns that this
provision was not in WRFA, unlike the Americans With
Disabilities Act, and therefore it is there as an additional
obstacle to obtaining an accommodation.
That is, before you even get to the analysis of whether
there is a reasonable accommodation that can be provided and
whether providing that accommodation would lead to an undue
hardship, now the employee first has to be shown that he is
able to fulfill the essential functions of a job.
So once you get past that hurdle, the fact is that an
employer still is able to show that the time, the shift
requirements or the garb or grooming requirements would impose
an undue hardship on the employer. If the employer can make
that showing, then the employer is in a position to deny the
accommodation of days off or of dress or of grooming.
So it is simply not the case that the interactive process
has been taken out of the need of an employee for an
accommodation. It is simply that we believe that as is the case
under current law, it should appropriately come into play in
the context or deciding whether or not providing that kind of
accommodation would be an undue hardship for the employer.
Mr. Kline. Thank you.
Did anyone else have a particular comment on that?
I was just sitting here thinking as the two of you were
talking, and the hearings that we participated in in this
subcommittee and others, that it is always the case that with a
panel of experts, the experts disagree. I think that has been
100 percent of the time.
I have another minute or two here. At least two of you have
addressed the issue of conflict among employees or an
unintended impact on other employees. Clearly, when we are
looking at legislation, one of the pitfalls always is the
unintended consequence, something that we had not taken into
account. I think it has happened in legislation since time
began.
I see the light is about to turn red, but I think, Mr.
Marcosson, you talked about that. What is the concern here of
this conflict among employees that you were asking and that it
addressed?
Mr. Marcosson. Certainly. It seems to me that in a lot of
these cases and a lot of the warnings that have been raised
about WRFA, have centered on the idea that an employee may go
over the line in expressing religious views that might amount
to harassment of coworkers or that coworkers will be put in a
position where they have to cover for shifts that are not taken
by someone who requires the day off for some sort of a
religious observance, a holy day or a Sabbath.
I think those concerns are genuine. My concern is not so
much that I think it is clear as a bell that this bill would
create those conflicts, but that the factors listed in what
constitutes ``significant difficulty'' or ``hardship'' does not
point to conflict among coworkers as something the employer can
explicitly cite as something that might amount to significant
difficulty or expense. I think by adding that to the list, it
would alleviate some of those concerns that coworkers might
have and that employers would have as well.
Mr. Kline. Thank you.
Mr. Chairman, I see my time has expired.
Chairman Johnson. Thank you, Mr. Kline.
The chair recognizes Mrs. McCarthy for 5 minutes.
Mrs. McCarthy. Thank you, Mr. Chairman.
Going back, Mr. Marcosson, to what you were talking about
as far as the employees and the co-employees, how would you
change the language around to accommodate what your concerns
are?
Mr. Marcosson. In the bill, the bill adds a subsection
three to section 701(j) that tells courts and employers in
looking at the question of ``significant difficulty or
expense'' that factors to be considered in making the
determination shall include, and then it lists three of them,
all of which relate specifically to financial considerations,
looking at the actual bottom-line dollar costs, essentially.
By excluding others, including potential conflicts with
coworkers, my fear is the courts will take this as their
template and that these factors will become, if not exclusive,
at least primary over others that are at least equally of
concern, and that it would certainly not hurt the bill.
If it is true that the bill is not designed or intended to
allow coworker accommodation to infringe on the rights of
coworkers, then it seems to me a reasonable step to add that
explicitly to the factors that ought to be considered when
evaluating the undue hardship inquiry.
Mrs. McCarthy. Thank you.
Mr. Foltin, how do you respond to that?
Mr. Foltin. I think that the fact is the bill does say that
these are factors to be included among those considering
whether or not there is undue hardship. So the fact that a
specific factor is not listed does not mean that it cannot be
taken into consideration.
The cases where we have had the most problem with the
courts not giving due regard, or giving too much regard to the
issues that the employer raises because of the de minimis
standard, have been economic. So that is why I believe the bill
is drafted to include the specifically economic factors.
Now, if I may, on a related issue, the claim has also been
made that because the standard is being raised from de minimis,
it is going to be harder for the employer to take into account
these non-economic factors because of the change in standard. I
think that that is not borne out.
By looking at the cases in which courts have dealt with
issues having to do with conflict between employees or
harassment of one employee of another, in looking at those
cases one finds time and time again that unlike the cases where
economic factors are involved, the courts are very strong in
their reasoning as to how no employer should have to put up
with that kind of behavior by one employee to another.
So there is nothing about the change in standard from de
minimis to significant difficulty or expense that, based on a
fair reading of cases that have been applying this law for many
years, would lead one to have to worry that somehow we would be
opening the door to harassment by one employee of another.
Mrs. McCarthy. Thank you.
Chairman Johnson. Thank you, Mrs. McCarthy.
Mr. Souder, you are recognized for 5 minutes.
Mr. Souder. Thank you. Thank you for allowing me to ask
questions on the subcommittee.
Ms. Olson, I am incredibly disgusted, as well as
disappointed, with the chamber's testimony. The one thing I do
appreciate is that they have come out of the closet, so to
speak, after years in many cases of trying to slow this
legislation down, to deprive it even of a hearing in the past.
But it is just amazing that you would pick out a couple of
cases, which, by the way, were not even upheld. They ruled
against this earring thing that has been circulating in the
business community and in magazines like some kind of Internet
phenomena, trying to scare businesses that there is going to be
the Church of the Earring.
My lands, you do not have a single case from New York. Here
we have a law in New York, why are you silent on New York, if
this is going to be such a big problem?
If you want to know why the business community has such
difficulty, when I worked as legislative director in the Senate
dealing with ADA and passed it through and basically carried
much of the business water in trying to work through family and
medical leave, it is because you do not come in with any
credibility.
Tell us the problems in New York state. There are 10 times
as many cases in civil rights discrimination as there are on
religious. So do you favor the repeal of civil rights
legislation? Is that the chamber's position here?
You have raised a number of concerns. There is no question
that if this bill is to become law, we have to work out some
things at the margin. I have a business degree, an MBA degree;
have a family business; have had to deal with these things
myself; and have been frustrated many times with the laws that
we pass in the federal government that have unintended
consequences. But my lands, we are going to have a standard
that says that if there is conflict among employees--and this
is addressed to the law professor too.
So one of the problems we have in this country right now,
and it is increasingly becoming a problem, as we heard from the
Sikhs, is some people think the Sikhs are part of Al Qaida, and
they do not want them working in their company and they do not
want them in their community. So should they be fired? If
employees do not like the way somebody is a Muslim at their
factory, that is going to cause conflicts in America right now.
You either believe in religious freedom or you do not.
Now, there should be standards. As was eloquently stated,
``undue hardship'' is a standard. Dress codes, if the dress
code is relevant to the job and is part of the image of the
company, it certainly would fall in effective part of your job
and undue hardship. But if the dress code is not relevant to
the carrying out of the job, why should it be considered if it
is part of someone's legitimate religious faith?
Now, I have raised two big questions and made some
challenges and would be interested in some responses.
Ms. Olson. Thank you very much.
Chairman Johnson. Before you answer, let me just tell you,
Mr. Souder, that private business is just that, and they have
the right to set the rules in their own business. This is a
free country, and we preserve free enterprise.
You may answer the question.
Ms. Olson. Thank you very much.
In connection with the cases that have been cited and the
information that the chamber has provided to the subcommittee,
those cases are cases that are good law today. Those cases are
not cases that have been overturned, but also explain the wide
variety of different accommodations that employers are making
in the workplace.
The description that you just gave us in terms of the
interactive process and how it ought to occur in connection
with employers and employees is exactly the process that is
contemplated and required by the current requirements of Title
VII, and if those requirements are violated, subject an
employer to compensatory and punitive damages, attorneys' fees,
back pay and reinstatement.
In fact, the cases that are being described are the ones in
which accommodation issues sometimes have fallen in terms of a
violation of the law by the employer; sometimes have come out
with an employer ending up making an accommodation or offering
an accommodation that was not accepted, that was viewed as
reasonable by the court.
So they come up on both sides. This is the system that is
in place today and as I practice every day, is being utilized
by employers.
The chamber's position is that that system is working well.
It does consider conflicts between employees as well as the
economic issues that are raised here, as well as many other
issues such as the enforcement of diversity, non-harassment
statutes, as well as OSHA and other requirements.
Mr. Souder. Have you had problems in New York?
Ms. Olson. Pardon me?
Mr. Souder. Have you had any problems in New York?
Ms. Olson. In New York, I do not practice in New York, and
I would be more than happy to take a look at that, but I cannot
provide any guidance on the New York situation.
Mr. Souder. So you are on the national chamber board, you
are giving testimony on behalf of the chamber, and your
testimony is that the chamber did not give you any examples,
and the chamber does not have any examples from the state of
New York, but you will look into it.
Ms. Olson. We will look into that, but I do not have those
examples today.
Mr. Marcosson. Mr. Chairman, if I might address
Representative Souder's question briefly.
Chairman Johnson. Go right ahead.
Mr. Marcosson. As far as the issue of Sikhs being fired
from their jobs because coworkers object to them, making
assumptions about them that are unfounded, in my view that is
not a current problem under Title VII, nor is it the problem
addressed by WRFA. That would be, in my view, a flat-out case
of religious discrimination, not a matter of accommodation.
Mr. Souder. It was a headgear question, and the other
people felt the headgear was disruptive and upset them at work.
Mr. Marcosson. In a situation like that, I would view that,
if I were at the EEOC still, I think the EEOC would view that,
in an investigation of a charge, they would view that as flat-
out religious discrimination, not a matter of the employer
seeking some accommodation for a belief, but if they were fired
because of misconceptions or prejudice about their religion or
its expression in a situation like that, it would be flat-out
religious discrimination.
I think the suit would not even be brought under Section
VII (O)(1)(j). It would be brought under the peer
discrimination section, and not only would be covered, but
should be covered, is covered, and I think would prevail under
those circumstances.
Mr. Foltin. Mr. Chairman, if I could just have a word on
this?
Chairman Johnson. Of course.
Mr. Foltin. It has never been the claim of supporters of
WRFA that nobody ever prevails on a religious accommodation
case. Clearly, there are cases that are heard by the EEOC, and
thankfully in recent years actually the EEOC has been paying
more attention to these kinds of cases than it has in the past.
But the fact is that with the kind of de minimis standard
we have, the kind of minimal interpretation of what an
employer's obligations are, it is still too hard to bring these
cases and employers too often believe that based on what we
believe is an arbitrary determination as to what the workplace
requires, that they are entitled to resist.
In fact, there is a case out of a District Federal Court
which upheld the right of an employer to deny a promotion to a
Sikh because this individual did not have the right image to
rise to higher office within that organization.
The law ought to be clear, clearer than it is now, that
that is an act of discrimination. Perhaps having that kind of
law in place would save organizations like SALDEF, the Sikh
civil rights organization, from having to bring the kinds of
cases that are described in the letter that I just submitted
along with the other letters that I submitted for the record
earlier.
Chairman Johnson. Thank you.
Dr. Land, do you want to comment?
Dr. Land. Well, when I find myself in a bevy of lawyers, I
usually find it best to keep quiet.
[Laughter.]
Obviously, the status quo is not working for increasing
numbers of people of devout religious faith, many diverse kinds
of faith, in the workplace. I believe that the Workplace
Religious Freedom Act is a good-conscience effort to try to
address the needs of our fellow citizens who are being
discriminated against in the workplace based upon their
devoutly held and sincere religious convictions.
Chairman Johnson. Thank you, sir.
Mr. Kildee, you are recognized for 5 minutes.
Mr. Kildee. Thank you, Mr. Chairman.
Professor Marcosson, how do the courts' handling of the
religious discrimination claims compare to their handling of
other types of discrimination cases? Are there any common
problems?
Mr. Marcosson. I think that there are. I think it is
important to remember that the problems or the difficulties for
plaintiffs seeking religious accommodation, bringing religious
accommodation claims, are not exactly unique to religious
accommodation claims.
Title VII claimants, Americans With Disabilities Act
claimants, none of those claims are succeeding with any great
regularity in federal courts. The problems that plaintiffs are
facing in those cases and that the EEOC faces when it brings
cases are much more general, and those apply as well to
religious accommodation cases, as they apply to all others.
You have issues of courts too readily granting summary
judgment in race discrimination cases, ADA cases, because they
do not give enough weight to plaintiffs' evidence showing that
the employers' explanation is pretextual, for example. You have
an EEOC that is chronically, in my day when I was there, and I
think even today, underfunded and unable to keep up with its
workload and thoroughly investigate charges, whether it is
religious accommodation or any other of the statutes that the
EEOC enforces.
So some of the problems that have been cited today
certainly relate specifically to religious accommodation, but I
do not think we should lose sight of the fact that there are
other problems that may contribute at least as much to the lack
of success that accommodation cases have had in the federal
courts.
Mr. Kildee. Ms. Olson, you pointed out that the chamber has
serious concerns about WRFA. Would the Chamber of Commerce
support any reforms to increase the rights of employees to
religious accommodation? And what would alleviate the concerns
of the chamber?
Ms. Olson. Based on the chamber's experience in connection
with working with, for examples, members of the subcommittee
that I am on in terms of nondiscrimination and our experiences
in representing employers and dealing with these accommodation
issues daily, we do not see, many of the examples that have
been given here today were examples where an employer's failure
to provide an accommodation to an employee because of their
religious belief would violate Title VII as it is currently
drafted, and there are significant penalties attached to that.
So the chamber does not see the need for there to be a
revision to those current requirements and obligations. Those
are well set out, and really require an individual analysis of
the facts and the specific issues with respect to coworkers,
particular religious beliefs at issue, with particular
employment situations in terms of health, safety and other
issues. So at this point, the answer is no, the chamber does
not see a need to make any changes.
Mr. Kildee. There has always been a certain, if not
opposition, inertia at the chamber when it comes to such things
as the NLRA, OSHA. I mean, the chamber has never come here
asking us to provide greater protection for the worker in the
workforce or giving the right to collective bargaining. I mean,
we would be surprised probably a bit if you did not come with a
position of inertia or opposition, because in my lifetime you
were opposed to NLRA, you were opposed to OSHA.
So it is not really surprising, is it, that you would be
opposed to any governmental protection of employees in the
workplace.
Ms. Olson. Absolutely not. We are strongly, obviously, in
favor of the current protections with respect to employees
under Title VII.
This is a situation where you are oftentimes balancing the
rights of co-employees in the workplace to work, some employees
who do not want to work in connection with having an imposed
religious belief or practice on them, alongside other
employees.
I think that those issues have to be balanced, as opposed
to a bright-line test like exists within the current draft of
the Workplace Religious Freedom Act which would provide certain
absolute resolutions of conflicts in favor of the employee who
has the religious practice that they want to impose in the
workplace.
Mr. Kildee. Thank you.
Thank you, Mr. Chairman.
Chairman Johnson. Thank you. I appreciate your comments.
Can I ask all of you, under current law and EEOC guidance,
how broad is the scope of religion? I recognize we are not just
talking about what we might call mainstream denominations or
religions that enjoy a widespread following. What, if any, are
the limits of that definition?
You may recall some years ago the Supreme Court forced the
military to take Wiccans into their environment as a religion.
So do we have a specific idea that we are trying to foment
here? Can you answer that?
Mr. Marcosson. I will certainly take a pass at it anyway,
Mr. Chairman.
The Supreme Court, I think, as well as the administrative
agencies that enforce other federal laws than Title VII, and
the EEOC in enforcing Title VII, I think all are very
reluctant, deeply so, to get into questions of trying to
question the validity of someone's religious beliefs, for good
reason, because answering those questions requires courts to
get into areas the courts are not particularly well-suited to
answer about what is religion, what is faith, what is sincere.
The Supreme Court has made clear that those sorts of
inquiries are so sensitive that the Court would rather err on
the side of giving the person the benefit of the doubt that
what they are expressing is genuinely a religious belief.
I think that is a wise court, and I think the commission
has followed that path as well in giving a broad berth to
assuming, unless there is a really serious question on the
matter, that what someone is asserting is in their scheme of
belief religious in nature, and then proceeding from there.
That has its own problems of being over-broad, perhaps, and
allowing too many cases, but I think it avoids even a more
serious problem of government sort of having to make those
decisions about what counts as truly religious.
Mr. Foltin. If I may respond?
Chairman Johnson. Yes, sir.
Mr. Foltin. I think I have two responses to that.
First, it is the case that the courts have steered away
from appropriately determining what is a legitimate religion.
That is, the notion of what is a religion that would be covered
is going to be broad because the state ought not be in the
business of deciding that Christians are more entitled to
accommodation than, say, Wiccans.
However, it is the case that the sincerity of the religious
belief is something that the courts have tested, do test from
time to time. In fact, it is part of the prima facie case that
an employee must make, is they must make a showing that they
have a bona fide religious belief that requires the
accommodation. So, it is not that the courts or any decision-
maker is powerless to look into a sham allegation of need for
religious accommodation.
In addition, as a practical matter, when you look at the
difficulty of bringing these cases, the fact that my colleague
from the chamber notwithstanding, these cases do not typically
result in large damage awards, meaning that lawyers are
reluctant to bring these cases, and the fact that an employee
often will have to be fired before they actually get to bring
their claim, all of this means that the people that bring these
claims, the people that suffer detriment because they need an
accommodation, are almost by definition going to be sincere
people who require that accommodation or else they are out of a
job. Most employees are not looking for an opportunity to put
themselves in conflict with their employers over a religious
belief that is not really a religious belief that they hold.
So for both a combination of legal reasons, but also as a
matter of practical reasons as well, I think we do not need to
be concerned anymore than is the case under current law that
somehow this amendment to the law would create enormous burdens
for employers in dealing with frivolous or extravagant
religious claims.
Chairman Johnson. You make that statement, but in some
cases the Supreme Court has ruled on that issue to a limited
degree, as you indicate.
Mr. Foltin. I think what I am saying is consistent with
what the Court said.
Chairman Johnson. Anyone else wish to comment?
Dr. Land. I would just like to say that as a Baptist, I
would be opposed to the government making any discrimination or
trying to discern between competing religious claims or claims
of religious faith. The last thing we should ever want the
government to do, and it seems to me one of the things
government is least capable of doing, is trying to adjudicate
which religious beliefs or which religions would be accepted
and which would not. That would run afoul of the Establishment
Clause, it would seem to me, and would be contrary to what this
country is all about.
So I think the courts have adjudicated this to the best of
the American values and the American tradition that a person's
right to believe what they want to believe or not believe what
they do not want to believe is an absolute right. The
government should not be trying to decide which ones qualify as
bona fide religions and which ones do not.
Chairman Johnson. It is a great country, isn't it?
Dr. Land. Yes, sir. Better than any one that we have come
up with yet. It can always be improved, but better than any
other that has come forward so far.
Chairman Johnson. You bet.
Ms. Olson?
Ms. Olson. Mr. Chairman, if I just might note that I think
we are all in agreement in terms of the panelists on that
issue, in terms of the fact that religion is defined very, very
broadly. The sincerity of the belief in terms of the employee
that is exercising their rights under Title VII is something
that is usually looked at very closely by the courts.
But the issue of what is a religion is not, because the
Supreme Court has told us that it need not be a concept of God,
of afterlife or a supreme being; that it is really just a
purely moral or ethical belief that is sincerely held with the
strength of a religious belief, whether or not the belief
itself is religious.
I think that the wide variety of religions that exists and
that qualify for that definition of ``religion'' really brings
the wide variety of different issues that are more difficult to
imagine than what you see in terms of the Americans With
Disabilities Act and an employer's obligations to accommodate
there, which is why an employer's obligations under Title VII
today in connection with this issue, and in connection with the
reasonable accommodation obligations are ones that employers
are spending, in my experience, quite a bit of time working
very closely with employees to ensure that they can accommodate
those beliefs, along with the beliefs of other employees who do
not share that same faith or that same belief system.
Chairman Johnson. Thank you.
Mr. Kildee?
Mr. Kildee. Thank you, Mr. Chairman.
I will submit a question in writing to all the witnesses
concerning their views on the New York law, which is comparable
to this law, and their experience basically with that law. So I
would ask consent to ask in writing, and you respond in writing
to the question.
Chairman Johnson. Yes. Would you all be willing to accept
questions from anyone on the panel and try to answer them?
Dr. Land. Yes. We would be ready to assist in any way we
can.
Chairman Johnson. Thank you very much.
Thank you, Mr. Kildee.
I want to thank the witnesses.
Mr. Souder. Could I make a request?
Chairman Johnson. Sure. You are recognized.
Mr. Souder. Because this is such an important hearing,
after all these years, there has never been a hearing like
this, and for the hearing record, I have some additional
materials I would like to insert. If it came from the committee
as opposed to an advocate, that to actually look at what is
happening in New York and see if there has either been a study
or get some data. Did cases increase? What kind of cases came
up?
Also, we have historical cases around the country on the
dollar settlements and some of this, so we don't just have a
record of a few cases, but really look at this. Because if we
are going to move this law forward, we really need to figure
out how to be fair and how to do it in the best way so it does
not hurt business, but it does allow religious freedom.
Chairman Johnson. You are welcome to put questions into the
record if you so desire. I think the committee could look at
something like that.
I want to thank the witnesses for your time and testimony,
and both the witnesses and the members who were here for their
participation. Thank you for being part of the great American
experiment.
If there is no further business, the subcommittee stands
adjourned.
[Whereupon, at 11:56 a.m., the subcommittee was adjourned.]
Appendix I
------
Letters to Witnesses Requesting Supplemental Testimony on New York's
Human Rights Law
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
______
Response to Request From Richard T. Foltin, the American Jewish
Committee
Mr. Chairman, Congressman Kildee, and Congressman Souder, thank you
for your request to submit supplemental testimony with respect to the
experience in New York State following that state's revision of its
religious accommodation legislation in 2002. I appreciate also the
Chairman's courtesy in agreeing, through committee staff, to allow me a
brief extension of time in which to make this submission and to use
this opportunity to provide supplemental material on other pertinent
issues.
In 2002, New York State amended the religious accommodation
provisions of its Human Rights Law, found at New York Executive Law
Section 296(10). (The text of N.Y. Executive Law Sec. 296(10) (2004),
as amended--with changes from the law as it read prior to the 2002
amendments noted--is appended as Appendix A.) New York's amended
religious accommodation law is, to be sure, not identical with
H.R.1445, the Workplace Religious Freedom Act of 2005 (WRFA).
Nevertheless, those amendments, taken together with the New York law's
already existing provisions, incorporate the most crucial aspect of
H.R.1445--a standard for determining ``undue hardship'' that is
comparable to that proposed by WRFA.
The revised New York law incorporates two significant new elements.
Firstly, subsection (a) of Section 296(10), as amended, explicitly
extends the obligation of an employer to provide a reasonable
accommodation of an employee's religious practice to any ``sincerely
held practice of his or her religion;'' the prior law had referenced
only holy day observance.
Secondly, subsection (a), as amended, goes on to provide that it is
a discriminatory practice for an employer to require an employee or
prospective employee ``to violate or forego a sincerely held practice
of his or her religion... unless, after engaging in a bona fide effort,
the employer demonstrates that it is unable to reasonably accommodate
the employee's or prospective employee's sincerely held religious
observance or practice without undue hardship on the conduct of the
employer's business.''\1\
``Undue hardship'' is defined by subsection (c)(1) to mean ``an
accommodation requiring significant expense or difficulty (including a
significant interference with the safe or efficient operation of the
workplace or a violation of a bona fide seniority system)''--a
definition that is similar to, although not identical with, the
definition of ``undue hardship'' in WRFA. While WRFA does not include
the parenthetical, the provision that an employer shall not be
obligated to accede to ``a violation of a bona fide seniority system''
is consistent with the provisions of Section 703(h) of Title VII (42
U.S.C. Sec. 2000e2(h)), which will continue to be applicable to federal
religious accommodation cases if WRFA is adopted, as it is now.
Further, the clause regarding ``safe or efficient operation of the
workplace'' simply expands on the meaning of ``significant difficulty
or expense.'' Subsection (c)(1) goes on to list a number of factors to
be considered in determining whether the accommodation constitutes ``an
undue economic hardship,'' a list which is, again, similar, but not
identical, to the nonexclusive list to be found in WRFA.\2\
There is no evidence that enactment of the 2002 amendments has led
to the parade of horribles foretold by some critics of WRFA. It has
been claimed by some that WRFA would increase the chances of success
for a claim that an employer has an obligation to accommodate (i) an
employee who asserts a religious basis not to fill prescriptions or
provide health care that he or she would otherwise be expected to carry
out in the normal course of their duties, or (ii) an employee who
asserts a religious basis to harass a fellow employee or customer, or
make comments to a fellow employee or customer that such fellow
employee or customer would reasonably be expected to find
objectionable, insulting or degrading. In a state as large and diverse
as New York, and given the speed with which information travels in this
Age of the Internet, we would expect to have heard if the predicted
onslaught of such claims were occurring, much less that these claims
were prevailing.\3\ Like the dog that did not bark in the night in the
Sherlock Holmes story, it is telling that this has not been the case.
In this respect, Gina Lopez Summa, counsel to the New York State
Division of Human Rights, advises in a letter to me dated December 20,
2005 (appended as Appendix B), that the division does not track ``creed
basis claims'' (the division's term for claims based on discrimination
in the workplace based on religion) based upon the specifics of the
allegations, and that therefore she cannot advise whether claims of the
nature described above have been brought following enactment of the
2002 amendments because the information is not readily available.
However, in a conversation with Ms. Summa on or about December 14,
2005, I was advised that she was not personally aware of any such
claims having been brought under Section 296. One would expect that, as
the division's counsel, any such noteworthy claims would have been
brought to her attention. Again, the dog has not barked in the night.
Further, critics of WRFA have not demonstrated that the types of
cases they fear are, in fact, being brought--and more to the point,
even if such claims are asserted, prevailing--under the amended New
York law, with its WRFA-like ``undue burden'' standard. The claims by
those critics that WRFA's strengthening of federal statutory protection
against religious discrimination will lead to untoward impact on other
significant interests has left supporters of WRFA in the difficult
posture of trying to prove a negative. At the end of the day, given the
lack of any evidence that this has been the case in New York, the
burden of establishing such harm must fall on those making such claims.
The claim has also been made that enactment of WRFA would lead to
an onslaught of cases making extraordinary, even frivolous, claims for
accommodation. As reflected in Ms. Summa's letter, and in documents
provided by the Human Rights Division, the evidence clearly suggests
precisely the opposite (the referenced documents are collectively
appended as Appendix C). There were 278 ``creed basis claims'' filed
with the division during the period November 1, 2001 through October
31, 2002. During the subsequent comparable period, November 1, 2002,
through October 31, 2003, the number of such claims declined to 238,
and continued to decline each of the two subsequent reporting periods--
to 228 for the period November 1, 2003 through October 31, 2004, and to
163 for the period November 1, 2004 through October 31, 2005.\4\ Thus,
claims involving religion fell 14 percent between the 2002 and 2003
reporting periods; a further 4 percent during the period ending in
2004; and a further 29 percent for the period ending in 2005. In total,
religion-based claims declined 41 percent between the periods ending in
2002 and 2005.
Ms. Summa's letter advises that, inasmuch as the Division's records
do not analyze the claims filed based on the type of discrimination
alleged (e.g., facial discrimination, harassment, or failure to
accommodate), she cannot state authoritatively that there was no
increase in accommodation claims subsequent to enactment of the 2002
amendments. Nevertheless, a common sense analysis suggests that a rise
in such claims, and certainly a material rise, would be inconsistent
with the declining overall number of creed basis cases. If anything, an
appropriate inference is that the steady decline in claims includes a
reduction in the number of accommodation claims--and that this
reduction is attributable to a greater inclination of New York
employers to find an amicable resolution of employee requests for
accommodation, given that the change in state law now requires a more
vigorous effort to provide a reasonable accommodation.
In sum, as New York State Attorney General Eliot Spitzer stated in
an op-ed appearing in the Forward on June 25, 2004, ``New York's law
has not resulted in the infringement of the rights of others, or in the
additional litigation that the ACLU [a WRFA critic] predicts will occur
if WRFA is enacted. 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.'' (A copy of Attorney General Spitzer's op-ed is appended as
Appendix D, together with his letter of November 10, 2005, to Chairman
Johnson and Ranking Member Andrews to similar effect.)
If, at least as reflected by the decline in numbers of religious
discrimination claims filed, the New York experience seems to be a
success story, this does not--at least to judge by overall trends
during the period from fiscal year 1992 through fiscal year 2002, as
reflected in information provided by the U.S. Equal Employment
Opportunity Commission--appear to be the case with respect to such
claims filed with the EEOC against state and local government
employers. Attached as Appendix D is an analysis of EEOC religious
discrimination charges (including charges involving a failure to
accommodate religious practices) against state and local government
employers prepared by James Standish, legislative director for the
General Conference of Seventh-day Adventists, and the EEOC table upon
which that analysis is based.
Relatedly, as I stated in my written testimony before this
Subcommittee of November 10, 2005, figures released by the Equal
Employment Opportunity Commission reflect that the overall number of
claims of religious discrimination in the workplace (against private as
well as state and local government employers) filed for the fiscal year
ending on September 30, 2004, as compared to the fiscal year ending on
September 30, 1992, have increased in excess of over 75 percent. (I
learned subsequent to the November 10 hearing that there was somewhat
of a decline in claims filed for fiscal year 2005, as compared to
fiscal year 2004, but the point remains the same.)
This trend is reflected as well in the growth of claims
characterized by the EEOC as involving religious accommodation issues,
rising from 193 in fiscal year 1996 to 327 in fiscal year 2005 (with
341 claims filed in fiscal year 2004), a 69 percent increase. Indeed,
for the comparable FY96 through FY05 period, total religion-based
charges rose less steeply than those analyzed as religious
accommodation claims, from 1,564 claims to 2,340, some 50 percent.
(EEOC documents reflecting the foregoing are collectively appended as
Appendix E.) \5\
The total number of cases may not be high, but they are high enough
to demonstrate that there is a problem in terms of the ability of
employees to obtain a reasonable accommodation of their religious
practices.\6\ And we will, of course, 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 without
recourse and, therefore, to the choice of violating a religious precept
or giving up a source of livelihood.\7\ While over the last decade or
so the EEOC has evidenced a commendable increased commitment to
bringing religious accommodation cases, its ability to bring those
cases successfully is necessarily limited by the strength of the
underlying law.
In 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, are protected
from an invidious form of discrimination--the arbitrary refusal of an
employer to provide a reasonable accommodation of an employee's
religious practice. New York's experience reflects that WRFA will not
have the baleful impact that some have predicted, and the rising number
of denial of accommodation claims filed with the EEOC well demonstrates
that the time has come for Congress to reinstate the robust protection
against an invidious form of discrimination that it originally intended
when it included religious accommodation provisions in the federal
civil rights laws.
ENDNOTES
\1\ Subsection (b), as amended, reiterates ``undue hardship'' as
the applicable standard for cases of holy day observance, and goes on
to deal with certain specific issues relating to accommodation of that
type of religious practice.
\2\ The term ``undue economic hardship'' already appeared in the
prior version of New York's religious accommodation law as part of the
prior, now-repealed Section 296(10)(c). The pertinent language read,
``This subdivision shall not apply where the uniform application of
terms and conditions of attendance to employees is essential to prevent
undue economic hardship to the employer.'' The term ``undue economic
hardship'' was, however, not defined in the prior law, nor were any
criteria provided for determining when that type of hardship had been
demonstrated.
In providing a definition for ``undue hardship,'' the 2002
amendments looked to New York State case law interpreting the term
``undue economic hardship'' as it appeared in prior Section 296(10)(c).
In State Division of Human Rights v. Carnation Co., 42 N.Y.2d 873
(1977), the New York State Court of Appeals (New York's high court)
interpreted ``undue economic hardship'' as ``any significant increase
in costs'' (emphasis supplied). The Court of Appeals further stated in
that case, ``It should be obvious that an undue economic hardship does
not require any threat or undermining of the economic stability of an
enterprise. It would be enough that a palpable increase in costs or
risk to industrial peace would be required in accomplishing the end
sought by the employee.'' Id. (emphasis supplied). This common sense
reading of even the term ``undue economic hardship,'' as compared to
the broader concept of ``undue hardship'' utilized in WRFA and present
New York law, undercuts any notion that WRFA will be read to open the
door to harassment in the workplace.
\3\ This is not to suggest that every conceivable case in which an
employee might seek accommodation with respect to a work duty involving
the filling of prescriptions or health care is necessarily problematic.
An accommodation that burdens third parties--including an accommodation
that would make services unavailable on the employer's terms--would
impose an unacceptable disruption on the employer's business, and would
therefore not be available under WRFA. On the other hand--consistent
with the fundamental premise of our Constitution and our society that
it is not up to the government to prescribe orthodoxies of belief or
practice--to the extent a reasonable accommodation of religious belief
regarding work duties can be afforded without such impact, or other
significant difficulty or expense, that relief can and should be
extended.
\4\ Ms. Summa's letter states, ``The number of claims filed during
the 2001-02 period, which ended shortly before the Section 296(10)
amendments went into effect, was not only higher than the number filed
during subsequent comparable periods, but also higher than those filed
in prior years. This was attributable to an upsurge that was most
likely associated with the aftermath of the attacks of September 11,
2001.'' This is borne out by the sharp rise in 2001-02 in the number of
claims filed by Muslims and persons following in the category of
``other.'' Fortunately, the number of claims filed by persons falling
in these categories has fallen in subsequent years.
\5\ The document breaking out religion charge receipts for the
FY1996-2005 period by bases and issues, including religious
accommodation, was prepared by the EEOC's Office of Research,
Information and Planning. We have been advised that there are some
additional bases and charges, each amounting to less than 1% of
religion charge receipts, that were not included by ORIP in this
compilation.
\6\ Moreover, the small number of religious accommodation cases
filed with the EEOC, as compared to the overall number of religious
claims, suggests--at least on an impressionistic basis--that the number
of accommodation cases coming in the door may be undercounted, perhaps
because of miscoding when cases are analyzed for categorization.
\7\ Further, James Standish's discussion in his appended memorandum
of the disincentives to bring, and for lawyers to take, these cases in
the context of denial of accommodation claims against state and local
governments applies with equal force to claims against private
employers.
______
Response to Request From Camille A. Olson, Esq., Partner, Seyfarth Shaw
LLP
Subcommittee on Employer-Employee Relations,
Committee on Education and the Workforce,
U.S. House of Representatives,
Washington, DC, December 16, 2005.
Hon. Sam Johnson, Chairman,
Hon. Mark E. Souder, Member,
Hon. Dale E. Kildee, Member,
Committee on Education and the Workforce, 2181 Rayburn House Office
Building, Washington, DC.
Dear Chairman Johnson, Congressman Souder, and Congressman Kildee:
I am writing on behalf of the United States Chamber of Commerce in
response to your letter dated November 18, 2005. This letter addresses
the Subcommittee's specific request for the Chamber's position with
respect to New York's Executive Law Section 296(10) which expanded New
York's prohibitions against religious discrimination in the workplace,
and its comparability with the ``Workplace Religious Freedom Act of
2005'' (``WRFA''). As noted in your letter, at the recent hearing with
respect to WRFA, it was represented to the Subcommittee that New York's
state law prohibiting religious discrimination in the workplace was
``substantively identical to the federal legislation contemplated in
H.R. 1445.'' In this supplemental testimony the Chamber explains how
New York's law differs substantially, and indeed is very different from
WRFA. Further, there are other reasons why the employer community's
experience to date with New York's law does not provide the
Subcommittee with relevant experience by which to judge the impact of
WRFA on the employer-employee relationship.
In late November, 2002, New York's Executive Law Section 296(10)
became effective. It expanded the then-existing protections of New
York's employment discrimination law to include not only protections
for employees who request an accommodation to observe their Sabbath or
holy day, but also protections that would require an accommodation of
other religious practices or beliefs as well that were not then
protected under New York law. It also expanded the law by expanding the
prohibitions against discrimination ``in holding employment'' to also
include a prohibition in discrimination with respect to any terms and
conditions of employment, including opportunities for promotion,
advancement or transfers.
In short, New York's law was expanded to include prohibitions
against discrimination in employment with respect to a wide range of
practices and beliefs that had previously not been protected under
state law, including dress, hairstyles, beards and prayer requirements.
In addition, it also provided certain specific guidance with respect to
an employer's obligation to reasonably accommodate an employee's
sincerely held religious beliefs, including a definition of undue
hardship, and an express statement that undue hardship does not include
any abridgement of the rights granted to employees through a seniority
system, or require an employer pay premium wages to employees whose
work accommodation may require that they work only certain hours to
accommodate their sincerely held religious beliefs.
Specifically, the amendment to subdivision 10 of section 296 of New
York's Executive Law in relation to unlawful discriminatory practices
can be summarized as follows:
<bullet> Paragraph (a) of subdivision 10 was amended to make it an
unlawful discriminatory practice for an employer, employee or agent
thereof, to impose upon a person as a condition of employment any
circumstances that would require such person to violate or forego a
sincerely held religious practice or observance;
<bullet> Paragraph (a) of subdivision 10 was also amended to
provide for an exemption for an employer in situations, where after
bona fide effort, the employer demonstrates that it is unable to
reasonably accommodate the employee's observance or practice without
undue hardship;
<bullet> Paragraph (a) of subdivision 10 was amended to establish
that an employer is under no obligation to pay premium wages during
hours when ordinarily required if the employee is working during such
hours only as an accommodation to his or her sincerely held religious
requirements;
<bullet> Paragraph (a) of subdivision 10 was amended to provide
that nothing in an employer's duty to accommodate sincerely held
religious practices and observances shall alter or abridge seniority
rights;
<bullet> Paragraph (c) of subdivision 10 was amended to add a new
paragraph (c) to provide that it is an unlawful discriminatory practice
for an employer to refuse an employee leave solely because the leave is
being utilized for the employee's sincerely held religious observance
or practice;
<bullet> A new paragraph (d) was also added to subdivision 10 to
define ``undue hardship'' as an accommodation requiring significant
expense or difficulty and requiring the consideration of several
factors, including, but not limited to, cost of the accommodation; the
number of employees requesting accommodation; geographic separateness
of facilities; and inability of the employee to perform essential job
functions.
<bullet> Under the new paragraph (d), undue hardship was
specifically defined to include any accommodation that ``will result in
the inability of an employee to perform the essential functions of the
position in which he or she is employed.''
It is important to note that today Title VII of the Civil Rights
Act of 1964, as amended, provides employees with protections that
require an employer to accommodate the wide range of religious
observances and practices reflected in the 2002 amendments to New
York's law, subsection 10, paragraphs a through c. For example, Title
VII currently requires employers to reasonably accommodate an
employee's religious observances and practices unless an accommodation
would cause an undue hardship on an employer. Prior to November, 2002,
these protections present under Title VII were not included within the
protections of New York law. The definition of undue hardship included
within the 2002 amendments to the New York law differs from Title VII's
definition of undue hardship; however, as detailed below, New York's
definition also differs from WRFA's definition of undue hardship.
As the Subcommittee noted in its request for supplemental
testimony, WRFA has been represented by its proponents as substantively
identical to New York law. In fact, as described below, there are
significant differences between New York's law and WRFA.
<bullet> Subparagraph (2) (B) of WRFA provides a definition of the
term `perform the essential functions' of a job that is not contained
anywhere in the New York law. Of concern is the definition's
elimination from the consideration of an essential function of any job
``carrying out practices relating to clothing and practices relating to
taking time off, practices relating to taking time off, or other
practices that may have a temporary or tangential impact on the ability
to perform job functions, if any of the practices described in this
subparagraph restrict the ability to wear religious clothing, to take
time off for a holy day, or to participate in a religious observance or
practice.'' If practices relating to clothing and taking time off
cannot be considered as an essential function of any job, under Title
VII, an employer may not engage in the interactive process of
determining whether or not a reasonable accommodation exists that will
accommodate the religious practice, without undue hardship, but must
simply grant the employee's request regardless of its impact in the
workplace. Again, no such similar requirement is imposed upon employers
under New York's law. In fact, New York's law, to the contrary,
requires employers ``to reasonably accommodate an employee's sincerely
held religious observance or practice without undue hardship on the
conduct of the employer's business.'' New York's law does not require a
blanket requirement that an employer exempt from an employee's job any
restriction on the ability to wear religious clothing, take time off
for a holy day or to participate in a religious observance or practice.
<bullet> Subparagraph (3) of WRFA defines the term `undue hardship'
differently than it is defined under New York's law. In pertinent part,
New York's law definition of undue hardship Sec. 296(10) provides as
follows, with that text that is bolded in New York's law completely
absent from WRFA:
Article I. ``undue hardship'' shall mean an accommodation requiring
significant expense or difficulty (including a significant interference
with the safe or efficient operation of the workplace or a violation of
a bona fide seniority system). Factors to be considered in determining
whether the accommodation constitutes an undue economic hardship shall
include, but not be limited to:
Section 1.01 the identifiable cost of the accommodation, including
the costs of loss of productivity and of retaining or hiring employees
or transferring employees from one facility to another, in relation to
the size and operating cost of the employer;
Section 1.02 the number of individuals who will need the particular
accommodation to a sincerely held religious observance or practice; and
Section 1.03 for an employer with multiple facilities, the degree
to which the geographic separateness or administrative or fiscal
relationship of the facilities will make the accommodation more
difficult or expensive.
Provided, however, an accommodation shall be considered to
constitute an undue hardship if it will result in the inability of an
employee to perform the essential functions of the position in which he
or she is employed.
In short, absent from WRFA's definition of ``undue hardship'' is
any reference to consideration of an employer's ability to: run a
``safe and efficient operation,'' implement and enforce a ``bona fide
seniority system,'' or the number of employees requiring an
accommodation for religious reasons. Equally important is the absence
in WRFA of New York's absolute requirement that an accommodation shall
be considered to constitute an undue hardship if it will result in an
employee's inability to perform the essential functions of the position
in which he or she was employed.
<bullet> WRFA amends Section 703 of Title VII by adding in
subsection (o) (2) a definition of unlawful employment practice that
includes failing to provide a reasonable accommodation to a religious
observance or practice that does not ``remove the conflict between the
employment requirements and the religious observance or practice of the
employee''. No such language, definition or similar requirement is
present in New York's law.
<bullet> Similarly, as noted above, whereas New York's law
expressly includes guidance with respect to an employee not being
entitled to premium wages or benefits in connection with performing
work during certain hours to accommodate his or her religious
requirements, as well as expressly preserving an employee's seniority
rights and affirming that those shall not be altered as a result of the
reasonable accommodation obligations set forth in the New York law, no
such similar language appears in WRFA.
For all of the reasons set forth above, the Chamber submits that
New York's law is not substantially identical to WRFA. In fact, the
language of the two laws is substantially different and not comparable.
As such, the experience of employers under New York's law does not
provide guidance on the manner in which WRFA's obligations would impact
the workplace.
Moreover, in the relatively short period of time since the passage
of the New York's law, approximately three years, the Chamber
understands that New York employers have not experienced enforcement of
its obligations in a way that differs from enforcement of the existing
obligations of those New York employers under Title VII of the Civil
Rights Act of 1964. In addition, there are no publicly available
administrative rulings of New York's Human Rights Department
interpreting the law, nor any reported court decisions. Where as here,
New York's judiciary has not answered questions concerning the scope
and nature of the protections afforded under New York's amended law,
commentators have opined that ``the cycle of legislation is never
complete until the courts have interpreted and applied the legislative
language to actual litigants''. Law Summary, Missouri's Religious
Freedom Restoration Act: A New Approach to the Cause of Conscience, 69
Mo. L. Rev. 853, 863 (2004). As such, the Chamber submits that New
York's law should not guide the Subcommittee's consideration of WRFA's
obligations.
In conclusion, the Chamber's position is that New York's law is
substantially different from the Workplace Religious Freedom Act and
offers no appreciable guidance as to the impact of the passage of the
Workplace Religious Freedom Act in the workplace. Mr. Chairman and
members of the Subcommittee, thank you for the opportunity to provide
this supplemental testimony. Please do not hesitate to contact me or
the Chamber's Labor, Immigration, and Employee Benefits Division if we
can be of further assistance in this matter.
Respectfully submitted,
Camille A. Olson,
Seybarth Shaw LLP.
______
Various Appendices Pertaining to New York's Human Rights Law
Appendix A
New York Executive Law Section 296(10)
N.Y. Executive Law Sec. 296(10) (2004), as amended in 2002 reads as
follows:
10. (a) It shall be an unlawful discriminatory practice for any
employer, or an employee or agent thereof, to impose upon a person as a
condition of obtaining or retaining employment, including opportunities
for promotion, advancement or transfers, any terms or conditions that
would require such person to violate or forego a sincerely held
practice of his or her religion, including but not limited to the
observance of any particular day or days or any portion thereof as a
sabbath or other holy day in accordance with the requirements of his or
her religion, unless, after engaging in a bona fide effort, the
employer demonstrates that it is unable to reasonably accommodate the
employee's or prospective employee's sincerely held religious
observance or practice without undue hardship on the conduct of the
employer's business. Notwithstanding any other provision of law to the
contrary, an employee shall not be entitled to premium wages or premium
benefits for work performed during hours to which such premium wages or
premium benefits would ordinarily be applicable, if the employee is
working during such hours only as an accommodation to his or her
sincerely held religious requirements. Nothing in this paragraph or
paragraph (b) of this subdivision shall alter or abridge the rights
granted to an employee concerning the payment of wages or privileges of
seniority accruing to that employee.
(b) Except where it would cause an employer to incur an undue
hardship, no person shall be required to remain at his or her place of
employment during any day or days or portion thereof that, as a
requirement of his or her religion, he or she observes as his or her
sabbath or other holy day, including a reasonable time prior and
subsequent thereto for travel between his or her place of employment
and his or her home, provided however, that any such absence from work
shall, wherever practicable in the reasonable judgment of the employer,
be made up by an equivalent amount of time and work at some other
mutually convenient time, or shall be charged against any leave with
pay ordinarily granted, other than sick leave, provided further,
however, that any such absence not so made up or charged, may be
treated by the employer of such person as leave taken without pay.
(c) It shall be an unlawful discriminatory practice for an employer
to refuse to permit an employee to utilize leave, as provided in
paragraph (b) of this subdivision, solely because the leave will be
used for absence from work to accommodate the employee's sincerely held
religious observance or practice.
(d) As used in this subdivision:
(1) ``undue hardship'' shall mean an accommodation requiring
significant expense or difficulty (including a significant interference
with the safe or efficient operation of the workplace or a violation of
a bona fide seniority system). Factors to be considered in determining
whether the accommodation constitutes an undue economic hardship shall
include, but not be limited to:
(i) the identifiable cost of the accommodation, including the costs
of loss of productivity and of retaining or hiring employees or
transferring employees from one facility to another, in relation to the
size and operating cost of the employer;
(ii) the number of individuals who will need the particular
accommodation to a sincerely held religious observance or practice; and
(iii) for an employer with multiple facilities, the degree to which
the geographic separateness or administrative or fiscal relationship of
the facilities will make the accommodation more difficult or expensive.
Provided, however, an accommodation shall be considered to
constitute an undue hardship if it will result in the inability of an
employee to perform the essential functions of the position in which he
or she is employed.
(2) ``premium wages'' shall include overtime pay and compensatory
time off, and additional remuneration for night, weekend or holiday
work, or for standby or irregular duty.
(3) ``premium benefit'' shall mean an employment benefit, such as
seniority, group life insurance, health insurance, disability
insurance, sick leave, annual leave, or an educational or pension
benefit that is greater than the employment benefit due the employee
for an equivalent period of work performed during the regular work
schedule of the employee.
* * * *
Attached is a copy of the New York State legislature's Act of March
21, 2001, amending Executive Law Section 296(10), with the changes from
prior law noted.
While other changes in the provisions of Section 296(10) are set
forth in the Act, the Act states that the prior Section 296(10)(c) has
been repealed in its entirety without providing the text of forth that
repealed subsection. The text of the prior, now-repealed Section
296(10)(c) was as follows:
``This subdivision shall not be construed to apply to any position
dealing with health or safety where the person holding such position
must be available for duty whenever needed, or to any position or class
of positions the nature and quality of the duties of which are such
that the personal presence of the holder of such position is regularly
essential on any particular day or days or portion thereof for the
normal performance of such duties with respect to any applicant
therefor or holder thereof who, as a requirement of his or her
religion, observes such day or days or portion thereof as his or her
sabbath or other holy day.
``In the case of any employer other than the state, any of its
political subdivisions or any school district, this subdivision shall
not apply where the uniform application of terms and conditions of
attendance to employees is essential to prevent undue economic hardship
to the employer. In any proceeding in which the applicability of this
subdivision is in issue, the burden of proof shall be upon the
employer. If any question shall arise whether a particular position or
class of positions is excepted from this subdivision by this paragraph,
such question may be referred in writing by any party claimed to be
aggrieved, in the case of any position of employment by the state or
any of its political subdivisions, except by any school district, to
the civil service commission, in the case of any position of employment
by any school district, to the commissioner of education, who shall
determine such question and in the case of any other employer, a party
claiming to be aggrieved may file a complaint with the division
pursuant to this article. Any such determination by the civil service
commission shall be reviewable in the manner provided by article
seventy-eight of the civil practice law and rules and any such
determination by the commissioner of education shall be reviewable in
the manner and to the same extent as other determinations of the
commissioner under section three hundred ten of the education law.''
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Letters of Support for H.R. 1445, the Workplace Religious Freedom Act
of 2005
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Submission for the Record Prepared by the Coalition for Religious
Freedom in the Workplace
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