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
WashingtonLegal Times.
Richard Foltin©2002
Law.comPage printed from: http://www.law.comYour
Job or Your Faith?Richard T. Foltin and James D. StandishLegal
Times07-21-2003Over the last 10 years, claims of religious
discrimination in the workplacehave risen disturbingly. The Equal Employment
Opportunity Commission reportsthat while charges relating to race, gender,
and national origin grew by 15percent in the past decade, those involving
religion increased a staggering85 percent. The spike in religious claims was
particularly severe after theSept. 11 attacks, when Sikh and Muslim
Americans faced greater hostility atwork.Behind each claim is the
story of an American forced to choose between herlivelihood and her faith.
Frequently, those who put their faith first suffercatastrophic losses,
including their homes, their health insurance, theirability to help their
children through college, and, in some particularlysad situations, their
marriages. Where employers have no good reason forrefusing to make religious
accommodation, Americans should not face such aharsh choice.In 1972,
recognizing that a broad prohibition on religious discrimination
inemployment was ineffectual if it did not specifically protect the right
ofemployees to get some flexibility to observe their religion,
Congressamended Title VII of the Civil Rights Act of 1964. New Section
701(j)provided that employers must accommodate the religious practices of
theiremployees unless they would incur an "undue
hardship."Unfortunately, in Trans World Airlines Inc v. Hardison (1977),
the SupremeCourt found that the undue-hardship requirement mandates
accommodation of anemployee's religious practice only if the employer can do
so at de minimiscost or inconvenience. The Court thus vitiated the promise
of the 1972amendment.This year, in response to the rise in workplace
religious problems, in partdue to that legal imbalance, a new federal
statute has been proposed. TheWorkplace Religious Freedom Act would restore
the protection that Congressintended in Section 701(j) by defining "undue
hardship." It would replacethe anything-more-than-de-minimis standard with
one that obligates anemployer 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.) andJohn
Kerry (D-Mass.), and is cosponsored by a bipartisan group of 16additional
senators, including Orrin Hatch (R-Utah) and Hillary RodhamClinton (D-N.Y.).
Pushing the bill is the Coalition for Religious Freedom inthe Workplace a
group of more than 40 religious and civil rightsorganizations, including
such diverse entities as the American JewishCommittee, 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 AdventistChurch.As WRFA has
gained momentum, it has also picked up a small number ofcritics. One of
them, Roger Clegg, wrote a June 9 commentary in Legal Timescritiquing 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 thede minimis standard,
recalcitrant companies don't have enough incentive toaccommodate religious
practices. But WRFA will create the needed incentive.When both parties have
a mind to do so, the vast majority of religiousaccommodations are easily
achieved.There is, if anything, a financial disincentive to bring such
lawsuits. Thedamages in religious accommodation cases are lost wages, which
are typicallymodest as most cases involve relatively low-paid employees. In
addition, anyattorney fee award is taxed prior to being paid to counsel due
to an anomalyin the tax system. Thus even when plaintiffs win cases, they
receive less indamages than the combined cost of lost wages and legal fees.
And thissignificant disincentive will remain under WRFA. WRFA will
have a positive economic impact. There was a time whenAfrican-Americans,
women, Jews, Hispanics, Irish, Italians, AmericanIndians, the disabled, and
many others were effectively barred from sectorsof the work force. But they
are no longer, and we are literally the richerfor it. By opening the doors
of opportunity to all, we not only ensure thatmore Americans participate in
the mainstream economy (and pay taxes), butthat business benefits from the
talents of an expanded work pool. Economistshave concluded that one reason
the American economy continued to expand overthe last 50 years was the
systematic
