Hollman Report

Where is the Workplace Religious Freedom Act?

By K. Hollyn Hollman

April 2008

Legislation known as the “Workplace Religious Freedom Act” (WRFA) has been proposed for many congressional sessions, long predating my time at the BJC. Supported by a diverse coalition of religious organizations and drawing bi-partisan leadership, such as Sens. Orrin Hatch, R-Utah, and John Kerry, D-Mass., the effort to strengthen rights of employees in the workplace has broad appeal. In addition to detailing the BJC’s support for the measure in this space, our office has worked closely with the WRFA coalition, receiving various levels of attention from Congress through the years.

Though we are not there yet, it would be wrong to assume that this effort is doomed. Often legislation evolves through various drafts over years or even decades before a sufficient consensus is reached for passage. Moreover, religious freedom legislation involves taking into account the immense depth and breadth of religious needs in this country and the competing interests of others, including some of our usual allies in the civil rights community. Building a coalition and addressing concerns of dissenters takes tremendous care and effort. Negotiations in recent weeks demonstrate that such legislative efforts require a painstaking process of listening, drafting, responding, re-drafting and determining what compromises can be made without giving up the bulk of what was intended in the first place.

At issue is the right of employees to be accommodated in the workplace based upon religious needs. Religion has long been one of the categories protected against discrimination by our nation’s federal civil rights laws, alongside race, sex and national origin. Covered employers cannot hire or fire employees because they belong to a particular faith. But what if an employee’s religious beliefs and practices conflict with the employer’s business operations? Do employers have an obligation to give employees time off from work to observe the Sabbath or other holy days? Must an employer make an exception to its dress code for an employee whose religion requires a particular kind of clothing? Should an employer excuse an employee from a particular assignment based upon a religious objection?

In 1972, Congress amended federal law to address these questions. It defined religious discrimination as including the failure “to reasonably accommodate an employee’s religious observance unless such accommodation would impose an undue hardship on the employer’s business.” Congress did not define or offer examples of what constitutes an undue hardship, leaving that job to the courts.

Judicial interpretations have been uneven at best. Many rulings have severely limited the rights of employees. Beginning with a Supreme Court decision in 1977, courts have found that anything more than a minimal (de minimus) economic cost to an employer amounts to an undue hardship, often relieving the employer of the duty to accommodate the employee.

As a result, many employers today believe they can comply with the law while offering few if any accommodations to their religious employees. With the deck seemingly stacked against them, some employees do not even bother to request religious accommodation. Thus, under current law, employees understandably may choose to compromise their beliefs to avoid risking their jobs.

WRFA was proposed as a sensible response to this problem. It would put some teeth into the requirement that employers reasonably accommodate an employee’s religious observances. It defines an undue hardship as one that requires significant difficulty or expense. Criteria for determining the standard include the identifiable cost of the accommodation and the size and financial resources of the employer.

In this Congress, WRFA was introduced (H.R. 1431) by Reps. Carolyn McCarthy, D-N.Y., and Mark Souder, R-Ind. A hearing on the legislation held in February explained that WFRA is not intended to, and would not require that an employer grant every request for accommodation. In many cases, however, it would give employers an incentive to remove unnecessary burdens on religious employees, whose practices are too easily ignored under current law. Led by the American Jewish Committee and the General Conference of Seventh-day Adventists, the WRFA coalition continues to include a broad array of supporters.

Despite the current absence of federal legislation, there is a growing recognition that religion should be accommodated in the workforce. In 2002 New York enacted legislation that very closely tracks the proposed WRFA. That law has proven to be effective, far from the nightmare predicted by some WRFA opponents. In fact, religious discrimination claims have dropped in New York in four of the past five years. New Jersey enacted a package of similar laws this month.

The New York experience demonstrates that religious pluralism and efficient workplace practices are not mutually exclusive. As consensus around this principle continues to build, it is likely that lawmakers will build on the groundwork laid over the past decade and ultimately take the necessary steps to pass WRFA. In the meantime, the BJC will continue to be active in working to eradicate religious discrimination from America’s workplaces and find sensible legislative solutions.