WASHINGTON (RNS) More than a decade after it was first introduced, an on-again off-again bill to protect employees’ religious expression in the workplace is attracting renewed attention that could lead to action on Capitol Hill in coming weeks.
The Workplace Religious Freedom Act would revise and strengthen the existing requirements imposed on employers to accommodate the religious practices of their employees.
“The bill will be introduced to Congress soon in a fashion that will eliminate the concerns some folks had since its inception,” said Richard Foltin, the director of national and legislative affairs for the American Jewish Committee.
Touted in certain circles as the “WRFA god,” Foltin co-chairs an unusually broad coalition of almost 40 religious groups, from Sikhs to Seventh-Day Adventists to Southern Baptists, who support the bill’s religious freedom expansions.
If passed, the now narrowly tailored legislation would require employers to make reasonable accommodation in the three areas where the vast majority of religious accommodation claims fall: religious clothing, grooming, and scheduling of religious holidays.
Previous versions of the bill had been criticized for being overly broad. The ACLU and the U.S. Chamber of Commerce were concerned other employees might be forced to carry additional workloads to accommodate co-workers, and that it would allow religious viewpoints to interfere with a secular workplace.
Though supporters of the bill claim to have the ACLU on board this time, ACLU officials declined to publicly talk about their position.
Whitney Smith, a spokeswoman for Sen. John Kerry, D-Mass., the bill’s lead sponsor in the Senate, said organizers are confident that with “the broad coalition of religious and civil rights organizations they’ve organized, they can finally pass this legislation in this Congress.”
Current standards require employers to accommodate an employee’s request unless it imposes more than a “de minimus,” or minimal, cost on the employer. Under that standard, courts have rejected a variety of employee claims, such as a police officer’s request to refuse to protect an abortion clinic and a social worker’s decision to incorporate Bible readings into counseling.
“I learned the first day of law school that `de minimus’ means `ain’t much,”‘ Foltin said, laughing. “The force of law is not strong enough to provide the protection people need.”
The debate centers on when employees’ requests become an “undue hardship” for managers. The proposed bill would place a larger burden of proof on the employer by raising the standard to a “significant difficulty” for the employer.
“The employer is going to have to jump a lot higher now,” said Robert W. Tuttle, a church-state legal expert at George Washington University Law School.
The bill, introduced each Congress with great fanfare but little success, has garnered bipartisan support. Sen. Orrin Hatch, R-Utah, has joined Kerry as a co-sponsor in the Senate; Rep. Carolyn McCarthy, D-N.Y., continues to lead the fight in the House.
“Federal law requires employers reasonably to accommodate employees’
religious belief and practice, but courts have weakened that protection,” Hatch said. “WRFA will restore the level of protection that religious freedom deserves.”
Added McCarthy: “In today’s economy, people shouldn’t have their jobs put at risk because they want to, say, wear a yarmulke, or have a long beard.”
Many corporations maintain the Civil Rights Act of 1964 adequately protects employee rights, and argue the bill would confound an already convoluted set of rules.
Michael J. Eastman, executive director of labor law policy for the U.S. Chamber of Commerce, said areas of the bill, including scheduling, still give his group pause. “We are not in the habit of supporting bills that make it easier to sue our members,” he said.
Even supporters concede the bill could complicate things for employers, but say the fight to religious expression is embedded in the First Amendment.
“Is it going to be a mess? Of course,” said Tuttle. “But why should it be any different than other legal messes? The system can digest an awful lot.”
The bill has taken on added urgency in an increasingly multicultural country, especially as minority faith groups like Muslims and Sikhs gain a higher public profile even as their traditions remain unfamiliar to many Americans.
According to the U.S. Equal Employment Opportunity Commission, job discrimination complaints by Muslim women have more than doubled since 2001. The Michigan chapter of the Council on American-Islamic Relations recently filed a complaint on behalf of a Muslim woman who was told she couldn’t wear a headscarf on the job.
“Unless legislation is passed to correct the baseline, Muslims and Sikhs face an uphill battle,” said Amardeep Singh, co-founder and legal director of the Sikh Coalition. “It’s like we’re fighting a battle with wiffle-ball bats.”
Beyond the practical benefits to employees, supporters say the bill would send a strong message — the “new beginning” that President Obama promised the Muslim world last year — that America can accommodate religious minorities.
“WRFA would give us more tools,” said Corey Saylor, director of government affairs for CAIR. “It would be a sign to the world that America’s a land that accepts all people.”
By LAUREN E. BOHN
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