Proposed Law Pays for Belief With Bias

By Marsha Atkind and Laura Murphy

Published June 25, 2004, issue of June 25, 2004.

The problem with the Workplace Religious Freedom Act is one of poor draftsmanship, not malice aforethought.

Civil rights advocates and most religious groups are of one mind in supporting broader accommodation standards for religious dress, appearance or holy days. However, WRFA legislation, as it currently stands, is dangerously broad and would force the courts to require employers to accommodate other religious claims that violate the civil rights or other important personal rights of co-workers, patrons and healthcare patients.

In practice, the bill could result in court decisions obligating employers to accommodate, for instance, a nurse who refuses, on religious grounds, to assist in an emergency Caesarean section on a woman facing life-threatening conditions early in a pregnancy; a private sector employee who refuses to cover up a Ku Klux Klan tattoo featuring a burning cross, claiming it is a religious symbol; or a social worker, hired to provide secular mental-health counseling, who instead uses Bible readings and the “casting out of demons” to treat her patients.

All these examples are taken from actual court cases where employees challenged employers for refusing to accommodate these religious demands. Under current workplace religious accommodation law, the courts ruled that the employer did not have a duty to accommodate these beliefs. But the very broad standard set by WRFA would throw the outcomes of all these types of cases into question.

Unfortunately, to understand why this is the case, one has to delve into the legal weeds a bit.

The law that set the standard for how religious activity is accommodated in the workplace is Title VII of the Civil Rights Act of 1964. The act required employers to provide “reasonable” accommodation for employees’ religious practices or beliefs. However, in a 1977 Supreme Court case, the employers’ obligations were narrowed. Under that decision, employers were only required to provide a reasonable accommodation that does not cause them more than a de minimus cost. Although employees continue to win many claims for an accommodation of religious beliefs related to religious dress, grooming or holy days, the low standard following the Supreme Court decision has resulted in employees losing too many of these cases.

We are fully in agreement that this must be fixed. However, WRFA does not limit itself to correcting problem areas such as religious dress, personal grooming or holidays. Instead, it would have a major impact on the enforcement of state and local civil rights laws; an employer’s voluntary nondiscrimination policy preventing racial, sexual, religious or sexual orientation harassment and access to health care, including emergency reproductive health care.

First, the legislation would exempt from an employee’s core job functions all on-the-job activity that is of “temporary or tangential impact” on an employee’s ability to perform his or her job functions. In other words, under the law, a nurse could argue that refusing to perform an emergency medical procedure that arises only once or twice a year is “temporary or tangential” to his or her work responsibilities, and a police officer could argue that picking and choosing a few facilities that he or she will leave unprotected in an entire precinct will have only a “temporary or tangential” impact on job performance.

Second, WRFA would force employers to accommodate all religious activity that does not impose on them “significant difficulty or expense,” which must be defined by monetary criteria. However, in the case of religious expression or activity in the workplace, it is often difficult to quantify its expense or the difficulty it causes employers. For instance, how does a court put a dollar value on the cost of unbridled religious proselytization in the workplace? How does a court link anti-gay remarks on a sales floor with a loss in productivity? In many cases, religious activity that significantly infringes on the rights of co-workers or patrons will not incur any “significant difficulty or expense” for the employer, but still should not be accommodated.

Third, WRFA would require that any accommodation of religious activity “remove the conflict between employment requirements and the religious observance or practice of the employee.” To explain what this change would do, just look at one of the more sensational workplace religious accommodation controversies in recent years. Since the 1977 Supreme Court decision, there have been several court cases against anti-choice police officers who have refused to protect abortion clinics. Under current law, employers could accommodate that religious belief by offering the officer a transfer to a precinct without an abortion clinic.

Under WRFA, however, the police officer could actually make the argument that he shouldn’t be forced to change assignments, but that his job description should change. This overbroad language could allow police officers to pick and choose whom they want to protect and serve based on religious arguments.

Ironically, because WRFA would amend Title VII of the Civil Rights Act of 1964, the nation’s landmark civil rights statute could become the tool for gutting workplace protections provided by good employers who are willing to go beyond the bare minimum that the law requires. And unfortunately, there are anti-civil rights litigation groups who are poised to invoke WRFA to cause harm to an employee’s co-workers, customers or patients.

The frustrating part of this whole debate is that it is entirely unnecessary. The problems with WRFA are with bad drafting, not bad intent. But courts will look at the words on the paper instead of looking into the hearts and minds of the law’s sponsors.

We all can fix those words on paper. Smart, creative people — and there are lots of them on all sides of this debate — can and must sit down again to figure out how to solve this problem. Just as it would be wrong and irresponsible to pass a bill with so many harmful effects, it would be wrong and irresponsible to let an opportunity pass without doing everything possible to secure WRFA’s good effects without any bad ones. We all should stop debating and get to work.

Marsha Atkind is president of the National Council of Jewish Women. Laura Murphy is director of the American Civil Liberties Union’s legislative office in Washington.

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