I am pleased to enclose (text below and attached with nicer graphics) James Standish's and my article on WRFA that appeared in this week's Washington Legal Times.
Richard Foltin         



2002 Law.com
Page printed from: http://www.law.com


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Your Job or Your Faith?

Richard T. Foltin and James D. Standish
Legal Times
07-21-2003


Over the last 10 years, claims of religious discrimination in the workplace
have risen disturbingly. The Equal Employment Opportunity Commission reports
that while charges relating to race, gender, and national origin grew by 15
percent in the past decade, those involving religion increased a staggering
85 percent. The spike in religious claims was particularly severe after the
Sept. 11 attacks, when Sikh and Muslim Americans faced greater hostility at
work.

Behind each claim is the story of an American forced to choose between her
livelihood and her 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.

In 1972, recognizing that a broad prohibition on religious discrimination in
employment was ineffectual if it did not specifically protect the right of
employees to get some flexibility to observe their religion, Congress
amended Title VII of the Civil Rights Act of 1964. New Section 701(j)
provided that employers must accommodate the religious practices of their
employees unless they would incur an "undue hardship."

Unfortunately, in Trans World Airlines Inc v. Hardison (1977), the Supreme
Court found that the undue-hardship requirement mandates accommodation of an
employee's religious practice only if the employer can do so at de minimis
cost or inconvenience. The Court thus vitiated the promise of the 1972
amendment.

This year, in response to the rise in workplace religious problems, in part
due to that legal imbalance, a new federal statute has been proposed. The
Workplace Religious Freedom Act would restore the protection that Congress
intended in Section 701(j) by defining "undue hardship." It would replace
the anything-more-than-de-minimis standard with one that obligates an
employer to provide a reasonable accommodation unless doing so would require
"significant difficulty or expense."

WRFA was introduced in the Senate this past May by Rick Santorum (R-Pa.) and
John Kerry (D-Mass.), and is cosponsored by a bipartisan group of 16
additional senators, including Orrin Hatch (R-Utah) and Hillary Rodham
Clinton (D-N.Y.). Pushing the bill is the Coalition for Religious Freedom in
the Workplace a group of more than 40 religious and civil rights
organizations, including such diverse entities as the American Jewish
Committee, the Islamic Supreme Council, the National Council of Churches,
the Union of Orthodox Jewish Congregations, the Southern Baptist Convention,
the Sikh Council on Religion and Education, and the Seventh-day Adventist
Church.

As WRFA has gained momentum, it has also picked up a small number of
critics. One of them, Roger Clegg, wrote a June 9 commentary in Legal Times
critiquing the legislation ("Praying on the Job"). But their objections are,
at best, misguided. WRFA is both necessary and, just as importantly,
practical. And here is why.

BETTER FOR EVERYONE

WRFA will reduce litigation. Lawsuits are brought today because under the
de minimis standard, recalcitrant companies don't have enough incentive to
accommodate religious practices. But WRFA will create the needed incentive.
When both parties have a mind to do so, the vast majority of religious
accommodations are easily achieved.

There is, if anything, a financial disincentive to bring such lawsuits. The
damages in religious accommodation cases are lost wages, which are typically
modest as most cases involve relatively low-paid employees. In addition, any
attorney fee award is taxed prior to being paid to counsel due to an anomaly
in the tax system. Thus even when plaintiffs win cases, they receive less in
damages than the combined cost of lost wages and legal fees. And this
significant disincentive will remain under WRFA.

WRFA will have a positive economic impact. There was a time when
African-Americans, women, Jews, Hispanics, Irish, Italians, American
Indians, the disabled, and many others were effectively barred from sectors
of the work force. But they are no longer, and we are literally the richer
for it. By opening the doors of opportunity to all, we not only ensure that
more Americans participate in the mainstream economy (and pay taxes), but
that business benefits from the talents of an expanded work pool. Economists
have concluded that one reason the American economy continued to expand over
the last 50 years was the systematic reduction in barriers against people of
diverse backgrounds. WRFA will alleviate yet another market imperfection
created by bigotry.

Bogus claims will be rejected under WRFA. A common concern is 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, 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 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." It doesn't happen now, and it won't happen
after WRFA is passed.

A CONSTITUTIONAL BLESSING

WRFA is constitutional. Critics assert that WRFA's religious accommodation
provisions are unconstitutional exercises of federal power, both as applied
to the states and to the private sector. Let us deal with these assertions
in turn.

The Supreme Court in City of Boerne v. Flores (1997) laid down this
standard: Congress' power to enact "appropriate legislation" to enforce the
equal protection clause of the 14th Amendment against the states does not
extend to redefining the states' substantive obligations. And where
congressional action is appropriate, there must be "congruence and
proportionality between the injury to be prevented or remedied and the means
adopted." Given the nature of the injury addressed by WRFA forbidding
states from engaging in conduct amounting to religious discrimination is
clearly not an extension of the states' substantive obligations and the
means that WRFA adopts, that standard is surely met.

The Court's decision this past May in Nevada Department of Human Resources
v. Hibbs is instructive. The majority upheld the Family and Medical Leave
Act as protection against gender-based discrimination. The Court found that,
since the discrimination's impact was significant, and the FMLA afforded a
"congruent and proportional" remedy, the statute was constitutional as
applied to the states.

Significantly, in coming to its decision, the Court found that gender
requires a higher standard of scrutiny than age or disability, and therefore
"it was easier for Congress to show a pattern of state constitutional
violations." WRFA is directed against discrimination on the basis of
religion, which is clearly subject to strict scrutiny stricter scrutiny,
in fact, than gender-based distinctions. Thus, it is even more likely that
WRFA is a constitutional exercise of congressional power especially in
light of the EEOC's reports of increased problems faced by people of faith
and WRFA's moderate remedy.

Even if WRFA were found to be inapplicable to the states, the vast majority
of Americans work in the private sector. Title VII's constitutionality as
applied to the private sector rests firmly on the commerce clause, as does
WRFA. While the Court has in recent years struck down laws that exceeded the
outer limits of Congress' commerce clause power, WRFA addresses conditions
relating to a core issue: Employment has broad implications for interstate
commerce and has long been subject to both federal and state regulation.

BERATING NOT ALLOWED

WRFA will not harm other employees and third parties. Maybe the most
serious objection serious because it plays on the very same commitment to
fair treatment that motivates support for WRFA is that the legislation
will empower employees to act in ways that hurt others in the workplace or
that cause third parties to fail to receive needed services. But this
objection is, stated bluntly, overwrought.

First, WRFA will not empower people to come to work each day and berate
their co-workers for being gay or Mormon or agnostic. Actions that create a
hostile work environment for others, in most cases in violation of
longstanding prohibitions on harassment, would clearly impose a significant
burden on the employer.

In any event, these cases are so rare as to be virtually nonexistent. Cases
brought under existing law tend to involve holy days and religious dress,
not employees asserting their right to harass the guy in the next cubicle.
It is even more unlikely that people, once told to stop bothering hapless
coworkers, will choose to be fired and then bring lawsuits. And even on the
infinitesimal chance that a lawsuit were brought, the zealous employee would
almost certainly lose under any reasonable reading of WRFA. In sum, changing
the definition of "undue hardship" will not unleash a wave of badgering or
berating.

Second, the courts may well find that WRFA does not justify the refusal of
essential personnel, like police officers or firefighters, to protect
individuals or entities with whom they have moral differences. WRFA requires
that employees perform the "essential functions" of their jobs. If they
refuse to do so, they can be fired. And to the extent that a court may find
that a task-based accommodation is in order in a particular case, such
accommodation could not, by any stretch, be required if it meant that the
services in question were no longer available to the public. Otherwise, the
employer would patently be faced with an "undue hardship."

In short, the fanciful parade of horribles thrown up by opponents of WRFA
hardly trumps the stark, well-documented reality of religious intolerance
that some workers still face in the American workplace. No one can credibly
claim to support workers' rights and oppose a bill designed to rectify this
serious and growing problem for America's workers.

And no American should be arbitrarily forced to choose between faith and an
honest living. The passage of the Workplace Religious Freedom Act will be
one more step toward ensuring that every Muslim, Jewish, Christian, Sikh,
Buddhist, and Hindu American is treated with dignity and respect in the
workplace.

Richard T. Foltin and James D. Standish are co-chairs of the Coalition for
Religious Freedom in the Workplace. Foltin is also legislative director and
counsel in the Office of Government and International Affairs of the
American Jewish Committee and co-chair of the First Amendment Committee of
the American Bar Association's Section on Individual Rights and
Responsibilities. Standish is director of legislative affairs for the
Seventh-day Adventist Church and executive director of the North American
Religious Liberty Association.


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